Saturday, December 2, 2023

SCOTUS May Rule on Activist Judges’ Ability to Force Redraw of Districts

'Activist judges and allied plaintiffs have proved time and time again that they believe state courts have the ultimate say over congressional maps, no matter what the U.S. Constitution says...'

(Headline USA) The Supreme Court seems poised to take on a new elections case being pressed by Republicans that could restore the constitutionally established power of state lawmakers to oversee the redistricting process of their states.

It comes after Democrats’ organized “sue till blue” endeavors have led to a growing number of court challenges to the legislative maps, effectively tying up the elections process with a deluge of spurious litigation.

Democrats, led by former Attorney General Eric Holder’s National Democratic Redistricting Committee, succeeded in leveraging the judicial system to secure favorable outcomes during the 2018 races but have since found Republicans pushing back.

Their efforts backfired in several cases during the latest round of redistricting, most notably in New York, where Democrats failed to push an egregiously gerrymandered map of their own through the state legislature while preemptively suing red states over fairly drawn maps in the hopes of gaining extra seats.

Still, the issue of judicial activism has arisen repeatedly in cases from North Carolina and Pennsylvania, where Democratic majorities on the states’ highest courts have invented new voting protections in their state constitutions to frustrate the plans of Republican-dominated legislatures.

Already, four Supreme Court justices have noted their interest in deciding whether state courts, finding violations of their state constitutions, can order changes to federal elections and the once-a-decade redrawing of congressional districts.

The Supreme Court has never invoked what is known as the independent state legislature doctrine, although three justices advanced it in the Bush v. Gore case that settled the 2000 presidential election.

“The issue is almost certain to keep arising until the Court definitively resolves it,” Justice Brett Kavanaugh wrote in March.

It takes only four of the nine justices to agree to hear a case. A majority of five is needed for an eventual decision.

But if the justices are going to get involved, “it does make sense for the Court to do it outside the context of an election with national implications,” said law professor Richard Hasen, of the University of California, Irvine.

Hasen regurgitated stale leftist talking points by claiming that the check on state-level judges’ power-grab would give legislatures the “power to curtail voting rights” and “subvert the election outcomes,” while ignoring the fact that doing so has been the intention of anti-integrity activists like Holder who wish to substitute the judgment of duly-elected legislatures for a cabal of like-minded—and possibly corrupt—jurists.

The court could say as early as Tuesday, or perhaps the following week, whether it will hear an appeal filed by North Carolina Republicans.

The appeal challenges a state court ruling that threw out the congressional districts drawn by the General Assembly that made GOP candidates likely victors in 10 of the state’s 14 congressional districts.

The North Carolina Supreme Court held that the boundaries violated state constitution provisions protecting free elections and freedoms of speech and association by handicapping voters who support Democrats.

The new map that eventually emerged and is being used this year gives Democrats a good chance to win six seats, and possibly a seventh in a new toss-up district.

The NC high court’s single-vote Democrat majority was established with the 2018 election of a former “sue till blue” activist, Anita Earls.

Earls benefited from thousands of dollars in dark-money contributions through the NDRC and leveraged a disinformation campaign to steal her seat on the bench from a Republican incumbent by using the late entry of phony Republican challenger—and likely leftist operative—Chris Anglin to split the GOP ticket.

Pennsylvania’s notoriously leftist court also selected a map that defied the GOP legislature to secure more seats for Democrats. An appeal from Pennsylvania also is waiting, if the court for some reason passes on the North Carolina case.

Nationally, the parties fought to a draw in redistricting, which leaves Republicans better positioned to win control of the House in what is already expected to be a red wave of backlash against the current Biden administration and failures of congressional leadership.

If the GOP does well in November, the party also could capture seats on state supreme courts, including in North Carolina. Two court seats held by North Carolina Democrats are on the ballot this year and Republicans need to win just one to regain control of the court.

In their appeal to the nation’s high court, North Carolina Republicans wrote that it is time for the Supreme Court to weigh in on the elections clause in the U.S. Constitution, which gives each state’s legislature the responsibility to determine “the times, places and manner” of holding congressional elections.

“Activist judges and allied plaintiffs have proved time and time again that they believe state courts have the ultimate say over congressional maps, no matter what the U.S. Constitution says,” North Carolina Senate leader Phil Berger said when the appeal was filed in March.

The Supreme Court generally does not disturb state court rulings that are rooted in state law.

But four Supreme Court justices—Clarence Thomas, Samuel Alito, Neil Gorsuch and Kavanaugh—have said the court should step in to decide whether state courts had improperly taken powers given by the U.S. Constitution to state lawmakers.

If the court takes up the North Carolina case and rules in the GOP’s favor, North Carolina Republicans could draw new maps for 2024 elections with less worry that the state Supreme Court would strike them down.

Delegating power to election boards and secretaries of state to manage federal elections in emergencies also could be questioned legally, some scholars said.

Those became significant issues during the 2020 election, when Democrats exploited them to change election-law rules against the will of the state legislature, helping to secure narrow victories for Joe Biden through the abuse of absentee voting.

In the aftermath, several federal court rulings determined that Democrats in states like Michigan, Wisconsin and Pennsylvania lacked the necessary authority to implement such changes. But many of those decisions came too late to make a difference in the 2020 race.

Despite their having flagrantly violated political norms to enact such policies, leftists sought to shift the onus to those now trying to close the dangerous, anti-democratic loopholes, claiming they were the ones undermining democracy for daring to push back on the power-grabbing officials.

“Its adoption would radically change our elections,” Ethan Herenstein and Tom Wolf, both with the far-left Brennan Center’s Democracy Program at the New York University Law School, wrote earlier this month of the effort to reassert the Constitution’s elections clause.

Adapted from reporting by the Associated Press

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