Moore v Harper - Official End of Democracy Watch (1 Viewer)

[Snotbubbles]

Poor phrasing on my part I guess.  As I read this thing, paragraph one clearly tells us the grounds on which they believe the maps were unconstitutional.  They list the four aspects there.  As I read, it reads to me like they are describing the "how" and in doing so mention gerrymandering as the "how".  Is the argument going to be that it doesn't matter that the maps violate W,X,Y,Z because they were done for partisan reasons?  I ask because in paragraph three they go and reiterate what they said in paragraph one making sure it's clear that they oppose on grounds that W,X,Y,Z are being violated.  It seems rather clear that this is their major concern...that the 4 points were violated and it doesn't matter how they violated it.

You freakin' lawyers....just spit it out already   

I guess the underlined is really what I want to know.

The dissent lays out the argument.

1.  The NC Supreme Court violated the separation of powers by "placing responsibility with the judicial branch" for redistricting.

2. Partisan gerrymandering is a nonjusticiable political question.  Since the North Carolina Constitution is silent on partisan gerrymandering the only way it can be unconstitutional is for the people to make it so by statute or amendment.  

 

[Maurile Tremblay]

Is the argument going to be that it doesn't matter that the maps violate W,X,Y,Z because they were done for partisan reasons?  I ask because in paragraph three they go and reiterate what they said in paragraph one making sure it's clear that they oppose on grounds that W,X,Y,Z are being violated.

The majority argues that partisan gerrymandering violates several provisions of the state constitution (the free elections, equal protection, free speech, and free assembly clauses) and is therefore prohibited.

The dissent argues that partisan gerrymandering does not violate any of those provisions, and shouldn't be judicially prohibited even if it did.

On appeal, the state legislature can't use the dissent's arguments. The United States Supreme Court cannot second-guess the North Carolina Supreme Court about what the North Carolina Constitution says. Instead, the state legislature will argue that while partisan gerrymandering surely does violate the North Carolina State Constitution, that doesn't matter since the North Carolina State Constitution violates the Federal Constitution.

 

[The Commish]

The majority argues that partisan gerrymandering violates several provisions of the state constitution (the free elections, equal protection, free speech, and free assembly clauses) and is therefor prohibited.

The dissent argues that partisan gerrymandering does not violate any of those provisions, and shouldn't be judicially prohibited even if it did.

On appeal, the state legislature can't use the dissent's arguments. The United States Supreme Court cannot second-guess the North Carolina Supreme Court about what the North Carolina Constitution says. Instead, the state legislature will argue that while partisan gerrymandering surely does violate the North Carolina State Constitution, that doesn't matter since the North Carolina State Constitution violates the Federal Constitution.

This makes my head spin.  And they'll argue the NC Constitution violates the Federal Constitution because it requires free elections, equal protection, free speech and free assembly and those "requirements" put a "limit" on what the legislature can do?  

 

[IvanKaramazov]

This makes my head spin.  And they'll argue the NC Constitution violates the Federal Constitution because it requires free elections, equal protection, free speech and free assembly and those "requirements" put a "limit" on what the legislature can do?  

No.  Those things are all fine.

They'll argue that the NC constitution isn't relevant, because the US constitution has supremacy, and it gives state legislatures free reign to run elections however they want, regardless of what their state constitution says.  

(Not endorsing the argument, just saying that that's how the argument goes).

 

[The Commish]

No.  Those things are all fine.

They'll argue that the NC constitution isn't relevant, because the US constitution has supremacy, and it gives state legislatures free reign to run elections however they want, regardless of what their state constitution says.  

(Not endorsing the argument, just saying that that's how the argument goes).

Basically saying any/all election laws put on the books by a state are unconstitutional?

 

[IvanKaramazov]

Basically saying any/all election laws put on the books by a state are unconstitutional?

No -- it's almost the opposite of that.  I think the "independent state legislature" doctrine essentially holds that the legislature can come up with whatever election laws they want.  They can't violate federal law or the US constitution, but it doesn't matter if they violate state constitutions.  

 

[The Commish]

No -- it's almost the opposite of that.  I think the "independent state legislature" doctrine essentially holds that the legislature can come up with whatever election laws they want.  They can't violate federal law or the US constitution, but it doesn't matter if they violate state constitutions.  

Now I'm lost again.  Maybe I wasn't clearer above...when I said "unconstitutional" I meant federally, not state.  If they are going to argue that the legislation/law they put into the state Constitution violates the federal Constitution because the federal Constitution grants state legislature "free reign", what example can I come up with in any law/legislation around requirements for voting that doesn't violate that "free reign" bar?  As soon as they make a law saying "hey, you have to have a voter ID" that's a limitation, right?  The state legislature limited itself...that's what they chose to do right?  This wasn't something written by some third party was it?  I feel like I'm missing something here.

 

[IvanKaramazov]

Now I'm lost again.  Maybe I wasn't clearer above...when I said "unconstitutional" I meant federally, not state.  If they are going to argue that the legislation/law they put into the state Constitution violates the federal Constitution because the federal Constitution grants state legislature "free reign", what example can I come up with in any law/legislation around requirements for voting that doesn't violate that "free reign" bar?  As soon as they make a law saying "hey, you have to have a voter ID" that's a limitation, right?  The state legislature limited itself...that's what they chose to do right?  This wasn't something written by some third party was it?  I feel like I'm missing something here.

I don't think I understand this post, but I'm nearly positive that the legislators who are pushing this case think they should have the ability to impose an ID requirement, for example.  

 

[Maurile Tremblay]

Now I'm lost again.  Maybe I wasn't clearer above...when I said "unconstitutional" I meant federally, not state.  If they are going to argue that the legislation/law they put into the state Constitution violates the federal Constitution because the federal Constitution grants state legislature "free reign", what example can I come up with in any law/legislation around requirements for voting that doesn't violate that "free reign" bar?  As soon as they make a law saying "hey, you have to have a voter ID" that's a limitation, right?  The state legislature limited itself...that's what they chose to do right?  This wasn't something written by some third party was it?  I feel like I'm missing something here.

The legislature, via legislation, can make rules about elections and cannot be constrained in that regard by other parties such as the people, via the state constitution, or judges, via their state constitutional interpretation. That's the argument. The federal constitution gives that power to state legislatures, subject only to federal legislation and the federal constitution itself, not subject to state constitutional provisions.

 

[Maurile Tremblay]

As soon as they make a law saying "hey, you have to have a voter ID" that's a limitation, right?

Who is "they"? The state legislature is free to make such a law. The state is not free to make it a state constitutional provision that constrains state legislation. (I'd assume, under this theory, that the governor cannot veto such legislation either.)

 

[The Commish]

I don't think I understand this post,  

Let me ask better in the reply to MT.

The legislature, via legislation, can make rules about elections and cannot be constrained in that regard by other parties such as the people, via the state constitution, or judges, via their state constitutional interpretation. That's the argument. The federal constitution gives that power to state legislatures, subject only to federal legislation and the federal constitution itself, not subject to state constitutional provisions.

This might be where I'm confused.  "The People" didn't write the NC state Constitution....the legislature did.  I THINK I understand the "judge interpretation" argument even if I think it's crazy.  So I am putting that to the side.  The NC Constitution is legislation written by the state legislature just like any of the other laws are written by the state legislature.  Is that not correct?

 

[The Commish]

Who is "they"? The state legislature is free to make such a law. The state is not free to make it a state constitutional provision that constrains state legislation. (I'd assume, under this theory, that the governor cannot veto such legislation either.)

They here is "state legislature".....let me ask a different question.  Does it matter AT ALL if "You have to have an ID to vote in our state" is written into the Constitution vs just a regular election law?  Both come through the state legislature and are both written by them.  If so, I'd like to understand why they'd be viewed differently.  

 

[The Commish]

By the way...thanks to all of you indulging what you may perceive as stupid questions...I really appreciate it  

 

[Maurile Tremblay]

The NC Constitution is legislation written by the state legislature just like any of the other laws are written by the state legislature.  Is that not correct?

The constitution is not legislation. The constitution is what authorizes some types of legislation while forbidding other types.

I don't know about North Carolina specifically, but in some states (such as California), the state constitution can be amended without any involvement by the state legislature at all. I believe that, in every state, the procedure for amending the state constitution differs from the procedure for passing legislation.

 

[The Commish]

The constitution is not legislation. The constitution is what authorizes some types of legislation while forbidding other types.

I don't know about North Carolina specifically, but in some states (such as California), the state constitution can be amended without any involvement by the state legislature at all. I believe that, in every state, the procedure for amending the state constitution differs from the procedure for passing legislation.

So anything written into the state Constitution to the effect of "You have to have a voter ID to vote in this state" would be rendered unconstitutional federally?

In NC, there is a process where changes originate in the House/Senate....after it passes the threshhold (don't remember the %) it is given to a committee who dumbs down the verbiage to put on the ballot and it's given to the citizens to vote on.

 

[Maurile Tremblay]

So anything written into the state Constitution to the effect of "You have to have a voter ID to vote in this state" would be rendered unconstitutional federally?

Yes, according to the legal theory in question, a rule like that would need to come from the legislature rather than from the state constitution.

In NC, there is a process where changes originate in the House/Senate....after it passes the threshhold (don't remember the %) it is given to a committee who dumbs down the verbiage to put on the ballot and it's given to the citizens to vote on.

Ah, given to the citizens to vote on. Hence the dissent's characterization of state constitutional provisions coming from "the people."

 

[The Commish]

So anything written into the state Constitution to the effect of "You have to have a voter ID to vote in this state" would be rendered unconstitutional federally?

Yes, according to the legal theory in question, a rule like that would need to come from the legislature rather than from the state constitution.

In NC, there is a process where changes originate in the House/Senate....after it passes the threshhold (don't remember the %) it is given to a committee who dumbs down the verbiage to put on the ballot and it's given to the citizens to vote on.

Ah, given to the citizens to vote on. Hence the dissent's characterization of state constitutional provisions coming from "the people."

Ok...now I follow a bit better.  To the first part, how reasonable does that postition seem to you?  To the second part, I understand what their argument is.  It appears that if this argument is successful it will upend a bunch of Constitutions in a bunch of different states.