Tangle - SCOTUS rejects independent state legislature theory.

Episode Date: June 28, 2023

In a 6-3 decision on Tuesday, the Supreme Court rejected independent state legislature theory (ISL), the legal theory that embraces the idea that the Constitution gives state legislatures unfettered authority to regulate federal elections, with little to no interference from state courts. Chief Justice John Roberts wrote the majority opinion, while Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented.You can read today's podcast here and today’s “Have A Nice Day” story here. From the Blindspot Report, a story that the right missed here and a story that the left missed here. Tickets to our event in Philadelphia on August 3rd are available here. Give the gift of a Tangle subscription here!Today’s clickables: Quick Hits (0:56), Today’s Story (02:52), Left’’s Take (6:55), Right’s Take (10:46), Isaac’s Take (14:55), Blindspot Report (22:51), Numbers (23:28), Have A Nice Day (24:11)You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and edited by Zosha Warpeha. Music for the podcast was produced by Diet 75.Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is Chinatown is streaming November 19th, only on Disney+. yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.

From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, the place where you get views from across the political spectrum, some independent thinking, and a little bit of my take. I'm your host, Isaac Saul, and on today's episode, we're going to be talking about the independent state legislature theory, which just got a ruling from the Supreme Court, a little bit of a smackdown on the ISL. We're going to talk about exactly what happened and what it means, what the implications are.

Before we jump in, though, as always, we'll start off with some quick hits. to talk about exactly what happened and what it means, what the implications are. Before we jump in, though, as always, we'll start off with some quick hits. First up, Yevgeny Progozhin, the head of the Wagner Group, arrived in Belarus after charges were dropped over the brief rebellion he led. Separately, the New York Times reported that a top Russian general knew about the coup plot in advance. Number two, wildfire smoke from Canada is once again blanketing U.S. cities, this time causing the worst air quality in the world across Chicago, Detroit, and Minneapolis. Number three, a Justice Department watchdog concluded that Jeffrey Epstein's death was

caused by the negligence and misconduct of prison staff. It found no evidence contradicting the FBI's conclusion of a death by suicide. Number four, the Small Business Administration Inspector General said roughly $200 billion in COVID-19 business relief funds were fraudulent. That's roughly 17% of the $1.2 trillion distributed by the SBA. Number five, House Speaker Kevin McCarthy backtracked shortly after saying he was unsure whether former President Donald Trump was the strongest candidate to represent Republicans The U.S. Supreme Court today rejected a controversial legal theory that state legislatures have almost unlimited power to decide the rules for federal elections and draw partisan congressional maps without interference from state courts.

The case stemmed from challenges to North Carolina's congressional map, which the state's Supreme Court rejected as illegal gerrymandering. Some experts say this issue gets to the very core of what it is to have a free election. It decides who oversees elections and whether that authority has limits. The theory, which is backed by a group of conservative advocates, argues that state lawmakers should have the ultimate power to regulate federal elections. In a 6-3 decision on Tuesday, the Supreme Court rejected the ISL, the legal theory that embraces the idea that the Constitution gives state legislatures

unfettered authority to regulate federal elections with little to no interference from state courts. Chief Justice John Roberts wrote the majority opinion while Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented. A quick reminder, we covered the ISL oral arguments in December. The case before the court was Moore v. Harper, in which North Carolina Republicans had gerrymandered a map that was expected to produce 10 GOP victories from 14 House districts, despite North Carolina's electorate being a virtual 50-50 split between Democrats and Republicans. With a 4-3 majority, the state Supreme Court had invalidated the map. North Carolina Republicans challenged a new map drawn by an appointed group

of three mapmakers and then cited the Constitution's Elections Clause to argue that the state courts did not have jurisdiction over a legislature's actions in federal elections. Article 1's Election Clause says the times, place, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. Article 2's election clause says that states should appoint presidential electors for the electoral college in such manner as the legislature thereof may direct. Strong supporters of the theory argue that these passages

mean courts, governors, independent commissions, and even election administrators have little or no jurisdiction over the elections. So what happened? Well, in December, the Supreme Court heard oral arguments, at which point they seemed skeptical of how far the ISL theory could be taken. Yesterday, the court rejected the theory 6-3. The majority held that the North Carolina Supreme Court did not violate the Constitution when it rejected the legislature's map. Clarence Thomas, who dissented,

argued that the case was moot after the North Carolina Supreme Court, which became majority Republican following the 2022 election, withdrew the initial ruling to redraw the map. In his majority opinion, Roberts first argued that the case was still live, given that Republican legislators were not asking the Supreme Court to overrule the effect of a previous decision, meaning they still had a stake in the outcome. Roberts then emphasized a long history of state courts invalidating laws that violate the state constitutions and emphasized there was no carve-out to this tradition for laws related to federal elections. Still, Roberts did suggest that state courts do not have free reign to strike down state

laws governing elections and made explicit that federal courts have an obligation to make sure state courts' interpretations of state law do not violate federal law. In other words, state courts have jurisdiction over the state legislature's rules governing federal elections, but federal courts could intervene on those rulings. Given the makeup of the Supreme Court, the outcome was far from a foregone conclusion. Fearful that the court could have decided to uphold the ISL, the Biden administration and Democratic North Carolina Attorney General Josh Stein had urged the court to dismiss the case. In practice, the ruling deals a blow to Republican legislatures who were hoping to keep state courts from overseeing federal elections. While the ruling won't require North Carolina's Republican

legislator to change its map, it could have a lasting impact that will preserve the status quo of judicial oversight in elections. Today, we're going to take a look at some arguments from the left and the right about the ruling and then my take. A quick reminder, we actually covered the oral arguments of this in our podcast and newsletter back in December. And you can find that edition where we really go long on the arguments in this case and the oral arguments in this case

in our podcast archive. All right, first up, we're going to start with what the left is saying. Many on the left support the ruling and applaud the court for shutting down the extreme independent state legislature theory. Some suggest that John Roberts is taking back control of the court and reasserting the oversight role of state courts in elections. Others suggest there are some caveats to how good the news is for liberals. The Washington Post editorial board said the Supreme Court just warded off a serious threat to democracy. Chief Justice John G. Roberts Jr. wrote for a 6-3 majority in Moore v. Harper that the elections clause does not insulate state legislatures from the ordinary exercise of state judicial review.

This finding might seem obvious, but to proponents of the so-called independent state legislature theory, at issue in this case, it's anything but, the board said. The readiness of six justices to call this idea what it is, a historic, unclear conflict with precedent and essentially baloney, is all the more heartening given two of the majority, Brett M. Kavanaugh and Amy Coney Barrett, were appointed by President Donald Trump. Mr. Trump's attorneys and advocates seized on an extreme interpretation of independent state legislature theory in the wake of his 2020 loss to try to persuade state legislatures to reject certified results that favored Joe Biden and to suggest that Vice

President Mike Pence could accept alternate state of electors, the board added. Also encouraging was that the court decided to weigh in on the merits so forcefully when it had an easy out, as North Carolina's Supreme Court had already reversed the decision under challenge. out, as North Carolina's Supreme Court had already reversed the decision under challenge. In Slate, Mark Joseph Stern said John Roberts has wrested back control of the Supreme Court. The ruling united Roberts, Brett Kavanaugh, and Amy Coney Barrett with the three liberals and firmly quashed the nefarious idea of ISL. This theory is incredibly dangerous to democracy. It would nullify state courts' ability to protect voting rights, destroy citizen-led redistricting committees, and hand federal judges freewheeling authority to meddle in state election law, Stern said. What Republican legislators really want is the

freedom to craft gerrymandered congressional districts without judicial intervention. Since the North Carolina Supreme Court overturned its previous ruling, there was no remaining injury for the court to redress. So Roberts made one up, Stern said. Why? He wanted to reach the merits so he could stomp out the independent state legislature theory well in advance of the 2024 election, which is ultimately good. It is important to get clarity on this issue before 2024. But to accomplish these noble aims, the Chief Justice had to pretzel the

law of mootness. There is one important caveat, Ian Millhiser said in Vox. The caveat is that Roberts' opinion does include a vague section which concludes that federal courts may get involved if a state Supreme Court transgresses the ordinary bounds of judicial review such that they arrogate themselves the power vested in the state legislatures to regulate federal elections, Millhiser said. After spending about two dozen pages laying out the case against the ISL, Roberts concludes his opinion with a warning that state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures.

He offers no analysis of just how poorly a state court might need to behave in order to exceed the bounds of ordinary judicial review, but future litigants will no doubt cite this language to justify asking federal courts to overrule state election decisions that they do not like, Millhiser notes. Still, we already know from the 2000 election that the court will sometimes intervene in extremely close elections, and Moore's language is unlikely to disturb the status quo. All right, that is it for what the left is saying, which brings us to what the right is saying. The right is divided on the ruling, with some arguing that it further muddles election law,

and others saying it is a step towards securing elections. Some argue this is actually a middle of the road ruling that is not the win liberals think it is. Others suggest the ruling is a blow to Trumpism and conspiracies about stolen elections. The Wall Street Journal editorial board said the court introduced an election muddle. The result isn't the runaway victory that progressives claim, but it will lead to more election law controversies, the board said. Partisan state judges read a ban against political gerrymanders into the penumbra of state law. As a result, Democrats carried three more congressional seats under a court-redrawn map last November than they were predicted to

under the legislatures. GOP lawmakers argued that the elections clause prevented state courts from striking down a legislature's maps or voting laws affecting federal elections. Chief Justice John Roberts rebuffs this reading of the elections clause with the middle-of-the-road or muddle-of-the-road decision, the board said. On the one hand, he states state legislatures are subject to state judicial review under the state constitution when they write election law. But he also stresses that state courts do not have free reign, and this court has an obligation to ensure that state court interpretations of state law do not evade federal law. So, state court election rulings will be subject to U.S. Supreme Court review, yet the majority declined to adopt the standard for reviewing such state court decisions.

In his newsletter, Ilya Shapiro said this was actually a middle path ruling. The Supreme Court essentially told state courts not to go crazy in interpreting state laws regulating federal elections because the U.S. Constitution's election clause provides for federal judicial review of such interpretations, Shapiro wrote. In sum, although this ruling will be hailed as a loss for conservatives, it's very much a middle-of-the-road decision, which says that state courts still have a role to play in interpreting state constitutional provisions, but they can go too far and there's a federal court backstop. In Chief Justice Roberts' work, the Supreme Court has an obligation to ensure that state court interpretations of state law

do not evade federal law. The ruling thus reinforces the view that federal election law is ultimately policed by federal courts, so state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections, he said. All that is correct, but the court frustratingly declined to adopt a standard for determining when state courts cross the line. In other words, anyone looking for guidance in evaluating what a state Supreme Court does ahead of the 2024 election is constitutionally kosher will have to wait until the justices are forced to make that hard balls and strikes call that the chief

justice referenced at his confirmation hearings. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.

In the New York Times, David French said the Supreme Court just helped save American democracy from Trumpism. It's important to remember that the GOP's attack on American democracy had two aspects, a conspiracy theory and a coup theory. On Tuesday, the Supreme Court dealt a blow to both, French said. The first, the conspiracy theory, was that the election was fundamentally flawed. The second, the coup theory, was that the Constitution provided a remedy that would enable Donald Trump to remain in office.

The implications of the court's ruling are profound. The court's decision strips away the foundation of GOP arguments that the election was legally problematic because of state court interventions. Such interventions did not inherently violate the federal constitution, and the state legislatures did not have extraordinary constitutional autonomy to independently set election rules. The ruling also eliminates the ability of a rogue legislature to set new electoral rules immune from judicial review. State legislatures will still be accountable for following both federal and state constitutional law. In other words, the conventional checks and balances of American

law will still apply, French said. All right, that is it for the left and the right are saying, which brings us to my take. So this is basically what I expected, and I believe it is a very good outcome. In December, I wrote that I felt more strongly about this than any other Supreme Court case we've ever covered. And I wrote then what I still believe now. The independent state legislature theory is bonkers. It isn't just divorced from the historical record. As Roberts noted in his opinion, state courts in Rhode Island and North Carolina were striking down laws violating their own state constitution in the 1780s. That's before the federal constitution itself had even been ratified.

It is also an intentional redefinition of language that has been clear to every generation of lawmakers in our history until this one. The basic argument ISL proponents are proposing is that in the 1700s, the legislature did not mean what it means now. ISL believers want to define the legislature as the elected body of men and women who make up the House and Senate in a state Congress. But the legislature, as the Supreme Court has explained before, is the power that makes laws. And that power is shared by the legislative body, the executive, and the judiciary, that's the courts. This is how it has been understood for our nation's entire history until North Carolina

lawmakers adopted a rather fringe theory and tried to make it mainstream before the Supreme Court. Much of the ISL argument was also based on what can be described as a fake historical document. Again, we explained all of this more in depth in December. I also scored some points then for my thoughts on this week's outcome. This is what I wrote back in December. The good news is that Moore's challenge is likely to fail. While I find it deeply concerning that there are conservative justices on this court even considering this argument, there is plenty of dissent. Leaders at the conservative Federalist Society have lambasted the idea. Benjamin Ginsburg, a longtime Republican idol and one of the top Republican election lawyers in the country, said the theory would create untenable legal uncertainty around elections. Judge Luddig,

cited above, is another conservative legal giant who took the time to deconstruct the truly stunning bad faith arguments behind this case. And even better, the court itself looks unlikely to embrace any broad version of the independent state legislature theory, end quote. To be sure, I don't think all aspects of this outcome are ethically unambiguous. As commentators on the left and right both put it, Roberts twisted himself into a pretzel in order to dodge the mootness of this case. I'm not really sure how to reconcile the logic of this case's merits with the logic he used to hear the case, except to say that it is a reminder of how malleable the law really is. Still, that justification for ruling on the merits is welcome, because I believe the outcome of this case is unambiguously good, but I'm very conscious of the fact I'd feel quite

differently if the ruling had gone the other way. What's ironic, of course, is that a lot of people who wanted to see ISL get crushed were hoping the case would get dismissed, while the folks who thought they had some allies on the high court wanted to see a ruling come down. Again, this might be a middle-of-the-road outcome, and it might even be something that simply preserves the status quo. But in this case, that preservation is a big win because the alternative was complete chaos. All right, that is it for my take today, which brings us to your questions answered. This one is from Maria in Dayton, Ohio. Maria said, my understanding is that by almost all measurements, the general

American public wants abortion to be legal in most or all cases. Please correct me if I'm wrong. So then why are there so many Republicans in this election cycle with anti-abortion platforms, specifically Haley, Pence, DeSantis, and Scott? Is this an effort to distinguish themselves from Trump, who seems at least quiet about it? Alright, so I think we may actually be seeing a mirage regarding abortion opinion in the news media right now for a couple of reasons. First, I'll say you're right. Trump is not talking about abortions much. Not because he's avoiding it, just because he's talking about a lot of other things like the 2020 election and his indictment. And if we're honest, I don't see any other Republican on the campaign trail spending much time on abortion either. In fact, Axios just

had a whole story about Republicans avoiding abortion on the campaign trail. Second, I think the way the media is framing abortion polling is obscuring the fact that restricting abortion is still a winning stance in the Republican Party. I wanted to address this question specifically to talk about how. There is a gap between what the headlines on abortion opinion are implying and what the partisan polling data is saying. Here's a headline from Pew. Six in ten Americans say abortion should be legal in all or most cases. Here's the partisan data from Pew. 60% of Republican and lean Republican respondents say it should be illegal in most cases, including 73% of self-identified conservatives.

Here's a headline from NPR. Americans want abortion restrictions, but not as far as red states are going. Here's some partisan data from NPR. 88% of Democrats would support a law that gives a safe haven to people seeking out-of-state abortions, but 42% of Democrats would support a law that gives a safe haven to people seeking out-of-state abortions, but 42% of Republicans would not. Here's a headline from Marist. Americans staunch

in opposition to overturning Roe v. Wade. Here's some partisan data from Marist. 65% of Republicans say they think of themselves as opposing abortion rights. I'm not saying that Republican candidates are going to want to make abortions a central plank in their platforms. Clearly, there is broad support for general abortion rights among independents, and any candidate hoping to win over that group won't want to make it a major focus. Ultimately, yes, most Democrats and independents support more access to abortions, but it remains true that most Republicans do not. Even more, Americans as a whole care a lot about when a fetus is aborted when considering an abortion's legality. This will just mean that in the post-Roe era, there will be room for debate between Republican candidates on

where they draw the line. Haley, for instance, has called a federal ban unrealistic, while Tim Scott has called South Carolina's six-week ban good news. Still, I don't think any of this means we're going to see Republican candidates become more permissive about abortion. All right, before we move on to our next section, I want to give a quick notice, a quick call for some help. Every month we set a goal for new Tangle paying subscribers. This month we are actually struggling to hit this goal, which is a little bit unusual. We've hit just 31% of our goal and we're 90% of our way through the month. Because we keep the vast majority of our content free for everyone, we have to remind readers that the only way we

can keep this project going and keep building our team is with new paying subscribers. Given that we're short of our goal, I'm throwing this request out there. If you are not yet a Tangle member, please consider becoming one. Memberships come with all sorts of benefits, including unlocking Friday additions. You can become a member at readtangle.com forward slash membership. If you are already a Tangle member, please consider gifting someone a subscription. We have a link to gift subscriptions in today's episode description and in today's newsletter. And if you are not a subscriber or you are

and you don't know what you wanna do to support us, you can consider two things. One, you could buy a ticket to our event in August on August 3rd, that would really help us out. We're trying to get the word out. We're trying to run a successful, profitable event. Or two, you could just share Tangle with somebody, just spread the word, which would be really, really helpful. All right. That is it for our little self promo here. But again, we're trying to hit our goals. We've only got a few days left in the month.

We're pretty far behind. Would very much appreciate the support. left in the month, we're pretty far behind. Would very much appreciate the support. All right, next up is our Blind Spot Report. Once a week, we present the Blind Spot Report from our partners at Ground News, an app that tells you the bias of news coverage and what stories people on each side are missing. This week, the right missed a story about a city in Delaware that is preparing to give businesses in the town one vote in local elections. Meanwhile, the left missed a story about an undercover video from James O'Keefe allegedly showing a BlackRock recruiter discussing how $10,000 can buy a U.S. senator and how the Ukraine war is good for business.

is good for business. All right, next up is our numbers section. According to a Quinnipiac poll, the percentage of Americans who said they approve of the job the Supreme Court is doing is just 35%. That's the lowest approval rating in 20 years. According to Quinnipiac, the percentage of Americans who said they disapprove of the job the Supreme Court is doing is 55%. The percentage of the United States currently under heat warnings and watches is 30%. The air quality index of Chicago on Tuesday was 228, giving it the worst air quality in the world. And finally, the number of top automakers who say they are removing AM radio receivers from their new vehicles is 8 out of 20. Okay, and last but not least, our have a nice day section. Thanks in large part to an international human effort, there are more trees on earth today than there were 35 years ago. Worldwide tree cover

has now grown by 2.24 million square kilometers, an area the size of Texas and Alaska combined, in the last 35 years. Worldwide tree cover has grown by 2.24 million square kilometers in the last 35 years. That's an area the size of Texas and Alaska combined, according to an analysis of satellite data by researchers from the University of Maryland. The overall global trend has been driven by agricultural abandonment in parts of Europe, Asia, and North America, rising temperatures allowing forests to grow closer to the North and South Poles, and a massive tree planting program in China. Researchers concluded that 60% of the increase they detected during the study period was associated with human activity.

Good Good Good has the story and there's a link to it in today's episode description. All right, everybody, that is it for today's podcast. Like I said, we are in a little sprint to hit some goals this week. So if you want to support our work, please consider going to readtangle.com forward slash membership. And if you want to spread the word, that's great too. You can share the podcast with friends. You can go give us a five-star rating. If you're on an app where you're allowed to rate podcasts, all of that is super, super helpful. We'll be right back here. Same time tomorrow. Have a good one. Peace. helpful. We'll be right back here same time tomorrow. Have a good one. Peace.

Our podcast is written by me, Isaac Saul, and edited by Zosia Warpea. Our script is edited by Sean Brady, Ari Weitzman, and Bailey Saul. Shout out to our interns, Audrey Moorhead and Watkins Kelly, and our social media manager, Magdalena Vakova, who created our podcast logo. Music for Thank you. We'll see you next time. about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases

have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages 6 months and older, and it may be available for free in your province.

Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at FluCellVax.ca.