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Article 1, Section 4, Clause 1 of the U.S. Constitution says, > The Times, Places and Manner of holding Elections for Senators and Representatives, shall be pr

by wahern 6y ago

Article 1, Section 4, Clause 1 of the U.S. Constitution says, > The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. There have been two Supreme Court decisions that have analogized the electorate as a legislative body in ballot measures, referendums, public initiatives, etc. The latest was https://en.wikipedia.org/wiki/Arizona_State_Legislature_v._Arizona_Independent_Redistricting_Commission https://en.wikipedia.org/wiki/Arizona_State_Legislature_v._A... [1] In that decision it was the liberals and Kennedy who upheld precedent; all the conservatives would have prohibited direct public votes on Congressional election rules. But now Kennedy and Ginsburg are gone, and their replacements are very likely to vote against precedent if the question comes back to the court. (In fact, IIRC, some justices, like Thomas, don't even like the idea of public initiatives for purely state elections, an argument based on their own peculiar notions of Federalism. Also, if you read the order opinions over the last few weeks by Kavanaugh and Gorsuch, some of their arguments seem to be aimed at reversing Arizona.) Roberts might switch his vote to uphold precedent, but Roberts would only make 4 votes, not enough to save it. If (or, rather, when) SCOTUS prohibits the public from directly legislating their Congressional elections, only Congress could restore the ability, unless the Constitution was amended. [1] Skimming through the Arizona case, I think the first was Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118 (1912). But I don't have time to reread the Arizona opinions carefully to refresh my memory.

kibwen 6y ago
The makeup of SCOTUS is irrelevant in this case, because before they could hear the case Congress would need to pass a law contradicting these state measures, which could then be challenged up to SCOTUS. No matter what, the ball is in Congress's court here.
- wahern 6y ago
  Look at the parties in Arizona State Legislature v. Arizona Independent Redistricting Commission. Any state legislature (or perhaps even any state legislator) that wanted to challenge their state's initiative-back election laws could sue. I'm not that well versed in election law, but it's also possible any state citizen could do it as well. In any event, just looking at the plaintiffs in the flurry of 2020 election cases shows how easy it would be to bring a case back to SCOTUS.
  - kibwen 6y ago
    Er, I feel like you're actually deflating your own argument here. Note that the aforementioned clause in the US Constitution grants no power to Congress to dictate how states perform their own legislative elections. The scenario you're envisioning first requires a state to pass an alternative voting system via ballot, then for the state legislature elected by that voting system to sue the state itself to overturn it (which is guaranteed to be wildly unpopular among the electorate that just passed the ballot measure), then for the case to make it to SCOTUS, who can only overturn it for federal elections, not for any state elections, and especially not in state elections in states other than the one that challenged it. A state politician has nothing to gain and everything to lose by supporting such a measure.
    - wahern 6y ago
      The context here is Federal elections for President and Congress--Maine's Federal Senate race is also via rank-choice, as mentioned in the second paragraph/sentence of the linked article. To another commenter's argument that switching to ranked-choice voting for those elections would require bipartisan support, you had retorted that > Maine voters passed [ranked-choice voting] via ballot measure, no partisan politicking required. Likewise, the two states voting on it this year, Alaska and Massachusetts, are also doing so via ballot measure. My point is that for Federal congressional elections the legal capacity to use voter initiatives to institute different voting rules, bypassing partisan state legislatures and Congress, will likely be extinguished in the coming years. The same is likely true for Presidential elections as the relevant constitutional language is nearly identical: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...." My comment about Thomas' view (uncited--I could be misremembering the nuances) about who gets to pass laws controlling state legislature elections was merely to suggest how likely he would be to overturn Arizona; his opinion about the Constitution's and SCOTUS' role in dictating/safeguarding a very specific form of representative government extends beyond a simplistic plain text[1] interpretation of the aforementioned constitutional clauses. [1] I feel like I should point out that no justice, conservative or otherwise, subscribes to a "plain text" philosophy of constitutional interpretation. Conservatives justices tend to espouse either a so-called Original Intent philosophy or Scalia's Original Meaning philosophy, where "Original Meaning" is not the same thing as "plain text". And justices of all political philosophies will make a "plain text" argument when it suits their interpretation. All things being equal (though they rarely are), everybody tends to agree a plain text defense is the best defense.
ginko 6y ago
I come from a country with a civil law system, so please excuse me if I'm misunderstanding things here, but isn't the legal precedent already established? How would something like this come to court again? Same with Roe v. Wade. There's already been a ruling by the Supreme Court, how can there be another one?
- wtallis 6y ago
  The Supreme Court is not prohibited from overturning existing precedent. They just generally choose to operate under a doctrine that says they should try to avoid overturning precedent. Lower courts are more formally bound by precedent from higher courts, but their rulings as constrained by precedent can be appealed up to the level(s) that are empowered to overturn the relevant precedent.
- jcranmer 6y ago
  The Supreme Court can overturn precedent. For example, Plessy v Ferguson (which held that segregation was legal) was overturned by Brown v Board of Education (which held that it was not). More recently, South Dakota v Wayfair directly overturned Quill v North Dakota in holding that states can directly charge sales taxes on internet purchases from out-of-state businesses.
- jazzyb 6y ago
  (IANAL. As I understand it,) Precedent is generally followed unless there is a difference of circumstance, which could include changing cultural mores. The most recent U.S. Supreme Court nominee briefly talks about some of the nuances related to precedent here: https://www.youtube.com/watch?v=nlchBfW036s https://www.youtube.com/watch?v=nlchBfW036s The (old) British legal scholar William Blackstone dives into it in his work "Commentaries of the Laws of England" (Introduction - Section 3) if you want a more thorough understanding of the foundation of precedent in common law.
- pessimizer 6y ago
  The Supreme Court is a political institution, none of the members have any obligation to precedent, and they aren't required to be lawyers. There's a lot of pomp and rhetoric around it that implies otherwise, but that's required in order for it to maintain the respect it needs to function.

by wahern 6y ago

kibwen 6y ago

The makeup of SCOTUS is irrelevant in this case, because before they could hear the case Congress would need to pass a law contradicting these state measures, which could then be challenged up to SCOTUS. No matter what, the ball is in Congress's court here.

wahern 6y ago
Look at the parties in Arizona State Legislature v. Arizona Independent Redistricting Commission. Any state legislature (or perhaps even any state legislator) that wanted to challenge their state's initiative-back election laws could sue. I'm not that well versed in election law, but it's also possible any state citizen could do it as well. In any event, just looking at the plaintiffs in the flurry of 2020 election cases shows how easy it would be to bring a case back to SCOTUS.
- kibwen 6y ago
  Er, I feel like you're actually deflating your own argument here. Note that the aforementioned clause in the US Constitution grants no power to Congress to dictate how states perform their own legislative elections. The scenario you're envisioning first requires a state to pass an alternative voting system via ballot, then for the state legislature elected by that voting system to sue the state itself to overturn it (which is guaranteed to be wildly unpopular among the electorate that just passed the ballot measure), then for the case to make it to SCOTUS, who can only overturn it for federal elections, not for any state elections, and especially not in state elections in states other than the one that challenged it. A state politician has nothing to gain and everything to lose by supporting such a measure.
  - wahern 6y ago
    The context here is Federal elections for President and Congress--Maine's Federal Senate race is also via rank-choice, as mentioned in the second paragraph/sentence of the linked article. To another commenter's argument that switching to ranked-choice voting for those elections would require bipartisan support, you had retorted that > Maine voters passed [ranked-choice voting] via ballot measure, no partisan politicking required. Likewise, the two states voting on it this year, Alaska and Massachusetts, are also doing so via ballot measure. My point is that for Federal congressional elections the legal capacity to use voter initiatives to institute different voting rules, bypassing partisan state legislatures and Congress, will likely be extinguished in the coming years. The same is likely true for Presidential elections as the relevant constitutional language is nearly identical: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...." My comment about Thomas' view (uncited--I could be misremembering the nuances) about who gets to pass laws controlling state legislature elections was merely to suggest how likely he would be to overturn Arizona; his opinion about the Constitution's and SCOTUS' role in dictating/safeguarding a very specific form of representative government extends beyond a simplistic plain text[1] interpretation of the aforementioned constitutional clauses. [1] I feel like I should point out that no justice, conservative or otherwise, subscribes to a "plain text" philosophy of constitutional interpretation. Conservatives justices tend to espouse either a so-called Original Intent philosophy or Scalia's Original Meaning philosophy, where "Original Meaning" is not the same thing as "plain text". And justices of all political philosophies will make a "plain text" argument when it suits their interpretation. All things being equal (though they rarely are), everybody tends to agree a plain text defense is the best defense.

ginko 6y ago

I come from a country with a civil law system, so please excuse me if I'm misunderstanding things here, but isn't the legal precedent already established? How would something like this come to court again? Same with Roe v. Wade. There's already been a ruling by the Supreme Court, how can there be another one?

wtallis 6y ago
The Supreme Court is not prohibited from overturning existing precedent. They just generally choose to operate under a doctrine that says they should try to avoid overturning precedent. Lower courts are more formally bound by precedent from higher courts, but their rulings as constrained by precedent can be appealed up to the level(s) that are empowered to overturn the relevant precedent.
jcranmer 6y ago
The Supreme Court can overturn precedent. For example, Plessy v Ferguson (which held that segregation was legal) was overturned by Brown v Board of Education (which held that it was not). More recently, South Dakota v Wayfair directly overturned Quill v North Dakota in holding that states can directly charge sales taxes on internet purchases from out-of-state businesses.
jazzyb 6y ago
(IANAL. As I understand it,) Precedent is generally followed unless there is a difference of circumstance, which could include changing cultural mores. The most recent U.S. Supreme Court nominee briefly talks about some of the nuances related to precedent here: https://www.youtube.com/watch?v=nlchBfW036s https://www.youtube.com/watch?v=nlchBfW036s The (old) British legal scholar William Blackstone dives into it in his work "Commentaries of the Laws of England" (Introduction - Section 3) if you want a more thorough understanding of the foundation of precedent in common law.
pessimizer 6y ago
The Supreme Court is a political institution, none of the members have any obligation to precedent, and they aren't required to be lawyers. There's a lot of pomp and rhetoric around it that implies otherwise, but that's required in order for it to maintain the respect it needs to function.