Lone Candle
Champion of Truth
“Republican state officials have been waiting decades for the chance to ban abortion.
Now that they can, red state lawmakers are mired in partisan infighting and struggling to agree on how far to go. The most fervently anti-abortion lawmakers are accusing their colleagues of capitulating on rape and incest exceptions, while those calling for compromise or moderation believe more strident Republicans are ignoring political realities.”
“Do state courts have the power to interpret their own state constitutions? The Supreme Court could be poised to say “no” — at least when it comes to redistricting and election law.
Last week, the Supreme Court agreed to hear the case Moore v. Harper in the coming fall term. In that case, Republican legislators in North Carolina are asking the court to overturn the state Supreme Court’s decision to throw out their gerrymandered congressional map and impose one of the court’s own.
Their argument rests on an extreme reading of the elections clause of the U.S. Constitution that posits that only state legislatures and Congress have the authority to decide how federal elections are run. Under this school of thought, known as the “independent state legislature” theory, state courts would no longer be able to intervene — even when a legislature violated the state’s constitution, as was found to be the case in North Carolina.
The independent state legislature theory is fewer than 25 years old, and for most of its life, it’s been relegated to the fringes of academia. But it was widely promoted by former President Donald Trump and his allies as they attempted to first undermine — and then overturn — the outcome of the 2020 presidential election. And several Supreme Court justices have already suggested that they’re on board with the theory. During litigation over election laws in Pennsylvania and Wisconsin in 2020, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch endorsed some version of the idea that state legislatures should have nearly unfettered power over how federal elections are run, and earlier this year, they said in an emergency-docket ruling that they would have ruled in favor of the North Carolina legislature.
If the Supreme Court sides with North Carolina Republicans in this case, it would have massive implications for election law. Depending on how the court rules, state courts might no longer be allowed to strike down legislatures’ proposed congressional maps for being gerrymandered. And if this happens, the way American elections are conducted would change in dramatic and destabilizing ways.”
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“An extreme embrace of the theory by the Supreme Court would hand legislatures power over every aspect of how federal elections are run, to the exclusion of not only state courts but also possibly other state actors like governors and election administrators. “It would be a voter suppressor’s fever dream,” Wolf said.”
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“the impact wouldn’t stop at redistricting. The Constitution’s elections clause also covers every aspect of how federal elections are run. That includes the 56 voting restrictions passed since the 2020 election — laws that require ID in order to vote, discourage absentee voting, move up voter deadlines, cut early voting, purge voters from the rolls and ban giving food and water to voters waiting in line.”
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“Similarly, courts would not be able to unilaterally change federal election laws in an emergency, like the Pennsylvania Supreme Court did in 2020 when it extended the deadline for absentee ballots to be received amid widespread delays in postal service. “If the state legislature says, ‘Polls close at 7 p.m.,’ and on Election Day, there’s a hurricane and the [state] Supreme Court says, ‘Keep them open until 10,’ the legislature wins,” Vladeck said.”
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“Some Trump allies have also argued that the independent state legislature theory empowers legislatures to appoint an alternate set of state electors — which, in 2020, could have overturned the presidential election. However, Leah Litman, a law professor at the University of Michigan, said that it’s important to remember that even the independent state legislature theory doesn’t mean state legislatures would be completely unchecked, because the U.S. Constitution would still apply. But she added that part of what alarms her about the theory is that it’s so unclear what embracing it would actually do. “It’s just kind of a mess,” she said of the theory. “We really don’t know what it would look like.””
“Residents of Fort Mill, South Carolina, had to wait 18 long years for construction to start on a hospital that state regulators determined in 2004 was necessary—and then proceeded to hold up in an absurdly long legal battle that eventually went all the way to the state Supreme Court.
Hopefully, that saga won’t ever be repeated.
The state Senate voted 35–6 on Tuesday to repeal most of South Carolina’s Certificate of Need (CON) regulations that require hospitals and other health care providers to obtain permission from the state before expanding facilities, buying new equipment, or offering new services. Often, those regulations gave de facto veto power to existing providers, which lobby health policy bureaucrats to block the approval of new competition.
That’s exactly what happened in Fort Mill, where plans for a new 100-bed hospital were tied up for more than a decade and a half, in part because a rival hospital wielded the state’s CON laws in an attempt to block the new facility, as Reason previously reported.”
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“If the bill becomes law, the Charleston Post and Courier reports, it would clear the way for 28 projects that are currently tied up in legal battles despite having won preliminary CON approval. Another 34 projects awaiting review by the state’s Department of Health and Environmental Control would be able to proceed as well. The paper estimates that those delayed projects represent more than $1 billion in health care investment in the state.”
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“that doesn’t include the loss of projects that never materialized in the first place.”
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“As part of his emergency order issued when COVID-19 first struck in March 2020, Gov. Henry McMaster (R) suspended enforcement of CON regulations—making South Carolina one of several states to do so because of the pandemic. When it became obvious that the sky wasn’t falling in the absence of those rules, some state lawmakers rightly began to question whether they were needed in the first place”
“Yet what happened this spring in Oregon is just one example, though perhaps the most extreme one, of a larger trend vexing Democratic strategists and lawmakers focused on maximizing the party’s gains in redistricting. In key states over the past decade, Democrats have gained control of state legislatures and governorships that have long been in charge of drawing new maps — only to cede that authority, often to independent commissions tasked with drawing political boundaries free of partisan interference.
Supporters of these initiatives say it’s good governance to bar politicians from drawing districts for themselves and their party. But exasperated Democrats counter that it has left them hamstrung in the battle to hold the House, by diluting or negating their ability to gerrymander in the way Republicans plan to do in many red states. And with the House so closely divided, Democrats will need every last advantage to cling to their majority in 2022.”
“Republicans care a whole lot about election security these days. Fueled in part by the “Big Lie,” the baseless claim that there was widespread fraud in last year’s election, Republican lawmakers around the country have made an aggressive push to pass new laws to prevent what they saw as a nightmare scenario from happening again. While the motivation to improve election security is spurious, the ostensible goal isn’t — everyone would agree that a secure election is important for democracy. Experts say there’s one very effective way for state legislatures to make the voting process more secure: pass legislation to update voting machines. But instead of prioritizing this effort, many Republicans are instead focused on limiting voter access.”
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“The gold standard for voting security is hand-marked paper ballots, according to security experts. That’s because a paper ballot eliminates the risk of technical difficulties or certain kinds of malicious acts (think hacking) that could change or destroy your vote, and any concerns can be addressed with a recount. Because of that, most states currently use hand-marked paper ballots or have voting machines that generate paper records for verification.
But in six states — Indiana, Louisiana, Mississippi, New Jersey, Tennessee and Texas — some or all voters still cast ballots on machines that have no paper record whatsoever, according to data from Verified Voting. While there’s no evidence that these machines have ever been hacked during an election, it’s technically possible, and they’re also prone to all kinds of undesirable malfunctions, including losing votes. With no paper backup to audit, these machines are the kind of election security liability that politicians say they’re invested in fixing.
Yet according to FiveThirtyEight’s past reporting and additional calls I made for this story, in five of those six states there has been little or no effort in the past six months to prioritize updating machines with a system that includes a paper record.”
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“Instead, state legislatures have been flooding the docket with bills relating to the length of early voting periods, the placement of ballot drop boxes and whether volunteers can give voters waiting in line a bottle of water. Meanwhile, just a handful of bills about upgrading equipment — often without any funding attached — have trickled in, only to lose momentum and die before reaching a committee.”
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““Unfortunately, I think the idea of security has basically been an excuse to limit access,” said Lawrence Norden, director of the Brennan Center’s Election Reform Program. “If we really want to ensure that our elections are trustworthy and transparent, we can do that without limiting access.””
“One of the first things on the agenda this year for Kentucky Republicans was figuring out how to kneecap Democratic Gov. Andy Beshear. They dropped legislation in January that placed new limits on the governor’s emergency executive powers, quickly passed the bill, overrode his veto and then fought him in court.
In the months that have followed, lawmakers across the country — from Maine to California, Oregon to Florida — have proposed and, in many cases, passed similar measures to curtail the sweeping powers bestowed on their state executives.”
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“Most governors insisted throughout the crisis that they were being guided by evolving science and trying to navigate uncertain terrain as best they could. But patience appears to have worn out for many legislators consigned to the backseat.”
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“In some states, it has been a continuation of philosophical differences that have played out over the course of the still-ongoing pandemic. That dynamic has been particularly evident in places sporting Democratic governors contending with GOP-controlled statehouses like Kentucky, Kansas and Michigan, where conservative outrage over Democratic Gov. Gretchen Whitmer’s pandemic mandates put her in physical danger last year.
But for other governors, it has been members of their own party who have been the ones trying to wrestle back control and deliver emphatic rebukes of their state’s leadership, as was the case in New York and Ohio last month.”
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“Generally speaking, however, the GOP has tilted far more toward limiting what governors are allowed to do by law than Democrats to date.”
“Most of these bills are not as aggressive as Georgia’s, but they all undermine localities’ ability to self-rule. In this way, Illinois State University political scientist Lori Riverstone-Newell told FiveThirtyEight, they’re part of an increasing trend of states preempting local government in order to retain power for themselves: Conservative legislatures, in particular, have passed several laws in recent years that limit the types of laws municipalities can pass, including sanctuary-city protections, anti-LGBT discrimination ordinances and minimum-wage increases (especially in the South). These laws can often have what Riverstone-Newell calls a “chilling effect,” where the mere threat of having their power taken away makes local officials afraid to govern as they see fit.”
“every single state in the country has a legislature that is disproportionately white.”
“An abysmal showing by Democrats in state legislative races on Tuesday not only denied them victories in Sun Belt and Rust Belt states that would have positioned them to advance their policy agenda — it also put the party at a disadvantage ahead of the redistricting that will determine the balance of power for the next decade.”