Category: Law

Comments on the Parade of Horribles Said to Arise from “Independent” State Legislatures

In my last post I noted that many in the mainstream media are panicking over the prospect that the Supreme Court could decide that the Constitution means what it says when it delegates certain authority over federal elections not to the States in general but to their Legislatures. The post dealt briefly with the relevant text of the Elections and Electors clauses. and I stated an intent to address concerns about the evils the commentators believe State legislators (at least the Republican ones) will be able to accomplish in a later post. This is that post. 

Remember that the Constitution gives State Legislatures the power to regulate the “Times, Places and Manner” of Congressional elections, subject to Congressional supremacy. A state legislature may be “independent” of the State constitution, but not of federal law.

NJ.com posits: “Politicians could pass laws to purposely make it harder for people to cast ballots, unchecked by state constitutions – which are more robust than the US Constitution when it comes to protecting the fundamental right to vote.” And then, mixing two horribles together: “And this would liberate the worst gerrymanders, a practice in which state legislators redraw the boundaries of electoral districts to give their own party an unfair advantage. The popular will would be irrelevant; state Legislatures would be picking our presidents.”

CNN seems mostly concerned about gerrymandering. FiveThirtyEight, while strongly concerned about gerrymandering as well, quotes an official of the Brennan Center that acceptance of the independent state legislature doctrine “would be a voter suppressor’s fever dream.”

First, it occurs to me that the language in these comments tends toward hyperbole. Indeed, in general it is all about the evils of Republicans. I doubt there would be the same fever pitch of concern if a majority of state legislatures were in control of the Democrats.

Second, the articulated concerns about gerrymandering do no more than identify the natural desire to advantage one’s group as evil without suggesting what should replace it. As I said more than a year ago:

[T]he remedy for political gerrymandering is not simply to ban or limit the practice, but to articulate and adopt a comprehensive and coherent set of principles for how districts (if there are to be districts) should be drawn. Only then can there be manageable objective standards by which to evaluate any particular redistricting scheme.

Some Weaknesses in Current Arguments Against Gerrymandering

Third, I guess I’m getting tired of election regulations and deadlines being treated as mere suggestions by the executive and judicial branches. Certainly, the idea behind democracy is for those eligible to do so to be able to vote, but that doesn’t mean that all inconveniences must be removed. As I’ve said before, “I believe that the method for voting most likely to impress the voter with the significance of the act is the traditional one, showing up at a polling station on one specified day.” I would also allow for absentee voting, but I would prefer that there be a good reason. In-person voting allows for vigilance against fraud; removing an election official from the process eliminates this safeguard.((I know that there are those who will say that there is little to no vote fraud, so raising its prevention is merely an excuse for vote suppression. But then again, do you remember that in 2020 a Mercer County freeholder (title since changed to commissioner) delivered an absentee ballot for a friend who died before the ballot was delivered? I never did hear how the “investigation” turned out.)) But when “voting by mail” becomes the norm, concerns arise about the timely receipt of the ballot. Election law may require the ballot actually be received by the time the polls close, but judges find excuses to extend that deadline in a purely arbitrary fashion. (What is the legal basis for adding three as opposed to two or four days?((Indeed, it brings to mind the biblical story of Abraham’s bargaining with God to save Sodom and Gomorrah. Genesis 18:20-32.))) The postmark takes on a legal significance beyond its station.((Most alternative voting systems still require that the vote be cast no later than election day. If the postmark becomes the deciding factor in whether a vote is counted, the postal clerk gains the power to allow otherwise ineligible votes to be counted. As the postal service is a federal agency, I foresee difficulties in prosecuting the clerk who offers to “pre-date” the postmark for money for election fraud.))

If your state legislators are going to destroy democracy without the watchful eye of judges interpreting robust constitutional protections, maybe you’re electing the wrong legislators.

Jay Bohn

July 18, 2022

Furor Over “Independent State Legislature” Ignores Constitutional Text

Recently I’ve been seeing many news articles/editorials/analyses((For example: This Supreme Court case could be the ultimate coup for Republicans – and the death of our democracy (NJ.com-clearly marked as an editorial); Why Republicans want to redefine one word in the Constitution (CNN-an analysis); Supreme Court case could reshape redistricting. What it means for Pa. elections (Morning Call-“Pennsylvania news”), How The Supreme Court Could Turbocharge Gerrymandering — Just In Time for 2024 (FiveThirtyEight, but with none of the usual statistics), and How an upcoming Supreme Court case could upend 2024 election laws, lawsuits (behind USA Today’s paywall; also appears on MSN.com). The intellectual inspiration for many of these articles may be an “explainer” published by the Brennan Center for Justice: “The ‘Independent State Legislature Theory,’ Explained.” )) in which the authors wring their hands over the Supreme Court’s grant of certiorari in Moore v. Harper and what they call the “independent state legislature” doctrine or theory.((I’m not sure it’s first use of the term, but the name “independent state legislature doctrine” was used by Michael T. Morley in his article The Intratextual Independent “Legislature” and the Elections Clause, 109 NW. U.L. REV. ONLINE 131, 147 (2015).)) These articles take strong positions on the merits of the theory, which they warn that this case could lead to the destruction of our democracy, without (for the most part) any consideration of the constitutional text. I expect a good deal of the concern is that some of the arguments asserted to challenge the validity of President Biden’s election were based upon this theory and the usurpation of the Legislature’s authority by governors and courts premised upon states of emergency declared in response to the COVID-19 pandemic.((See 167 Cong. Rec. H77-H78 (daily ed. Jan. 6, 2021) (statement of Rep. Scalise); 167 Cong. Rec. H79 (daily ed. Jan. 6, 2021) (statement of Rep. Jordan).))

The basic premise of the independent state legislature doctrine is that the United States Constitution confers certain authority upon State “Legislatures” which thereby act as agents of the federal government. Pursuant to the Constitution’s Supremacy Clause (Article VI, clause 2), the States cannot reallocate or limit this authority granted to the Legislature. Therefore, the Legislature’s exercise of this authority is not subject to substantive provisions of the State Constitution. This theory was hinted at, but I doubt had its genesis, in Chief Justice Rehnquist’s concurrence in Bush v. Gore, 531 U.S. 98 (2000).

The present argument involves two provisions of the Constitution. The first, called the “Elections Clause,” is in Article I, section 4:

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.

The second is in Article II, section 1:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

(The text source for these quotations, including spelling and capitalization, is the National Archives.)

Proponents of the independent state legislature doctrine argue that these two provisions mean what they say, the Constitution gives State Legislatures the power to establish rules (subject to Congressional supremacy) to govern Congressional elections in the State and the absolute power to determine how the State’s presidential electors will be chosen, all subject to the provisions of the United States Constitution.((As an example of such a provision, section 1 of the Twenty-Fourth Amendment states: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”))

Opponents who consider the text at all read “Legislature” to involve a State’s entire law-making function, including not just the potential of a veto by the governor, but also popular initiative and referendum, and perhaps much else.((Most of the articles I cited in note 1 do not bother with the constitutional text; all of them are more concerned about the evils they believe State legislators (at least the Republican ones) will be able to accomplish. I plan to address those concerns in a later post.)) They do have some support from relevant precedent. In Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015), a 5-4 majority of the U.S. Supreme Court construed the Election Clause to countenance a voter initiative that had amended the State constitution to transfer the Legislature’s power over congressional redistricting to an independent commission.((The law review article cited in note 2 was published while this case was pending and substantively argued against the result the Court ultimately reached.))

Jay Bohn
July 14, 2022

Free Speech, but Not for All Ideas

The French philosopher Voltaire is quoted as having said, “I disapprove of what you say, but will defend to the death your right to say it.” Many modern American institutions do not share this view.

A couple decades ago I first heard the term “political correctness,” then in the context that universities, which you would think are the haven for all sorts of ideas, were inhospitable to certain ideas, usually described as “-ist”: e.g., racist, sexist. More recently these content-based restrictions on speech have been justified by the asserted need to provide “safe spaces” for those offended by the ideas.

How often have we read of a public employee expressing some idea only to be met with the employer promising an investigation and asserting that those ideas “do not reflect our values”?

NJ.com recently reported that the mayor of Bloomfield was trying to prevent the opening of a Chick-fil-A restaurant in the local Garden State Parkway service area . (The same article was published in the Star Ledger on January 15, 2022.) The objection was not to the quality of the food but to the political views of the company’s leaders. The article quoted the mayor as saying: “Bloomfield is a diverse community accepting of all races, religions and sexual orientations, which is the antithesis of what this chain stands for.” The company can have, and perhaps express its opinions, but we’re going to punish it for them.

On January 18, 2022, the United States Supreme Court heard argument in Shurtleff v. Boston (transcript available here). For almost two decades the City of Boston had a program whereby groups could request to raise a flag on a City-owned flagpole in front of City Hall for a brief time. (The City’s own flag usually flew on that pole.) During this period there were hundreds of requests from various groups; all were approved — until the petitioner’s group requested permission to fly the “Christian flag” for one hour. The request was denied. As expressed by the City’s attorney during oral argument, “[T]he City … will not put up a flag that is discriminatory, offensive, or that supports religion.”

Clearly, many disagree with Voltaire and believe that free speech does not apply if they disapprove of what you want to say.

Jay Bohn
January 20, 2022

Since When is a Constitutional Right a Mere “Technicality”?

While a criminal trial is an attempt to get at the truth behind the charges, and truth is no doubt important, the system is properly weighted against a conviction. That the prosecution must prove its case “beyond a reasonable doubt,” that an acquitted defendant cannot be retried for the same crime, and that the defendant cannot be compelled to testify against himself are just three of the important protections of the people against a powerful government. The existence of those protections means that we believe them to be so important that we will tolerate a guilty defendant’s acquittal if necessary. When the application of these rights results in the reversal of a conviction of someone whom “everybody” knows to be guilty (perhaps because we believe the media has told us so), there is a tendency to complain that the defendant “got off on a technicality.”

As an example, lets look at the criminal case against Bill Cosby. After being told by the relevant district attorney that the Commonwealth of Pennsylvania would not prosecute certain accusations of sexual assault against him, Cosby answered questions about such charges in a deposition in a civil case against himself. Some of the answers he gave in the proceeding were potentially incriminating and for that reason he could not have been compelled to answer those questions if he faced potential prosecution.

Subsequently, however, a newly elected district attorney decided that Cosby should be prosecuted and his deposition testimony was used against him. He was convicted and has spent the last several years in prison.

Yesterday, the Pennsylvania Supreme Court decided that the actions of the original district attorney should be enforced and that proper remedy would be to preclude the Commonwealth from prosecuting Cosby for those charges. As a result Cosby’s conviction was overturned and he was released from prison. He cannot be retried and the decision is not subject to appeal.((No appeal is possible because the decision was based upon Pennsylvania law and the Pennsylvania Supreme Court has the final say on Pennsylvania law.))

Many are predictably disappointed and of course the decision is being called a “procedural technicality.”

It is not my purpose to say that the Pennsylvania Supreme Court’s decision is right or wrong, and certainly I have no particular insight into the truth of the underlying charges. But the right to refuse to testify against oneself in a criminal matter is an important one, and the government cannot be permitted to defeat that right by what the court called a “coercive bait-and-switch.”

Jay Bohn
July 1, 2021

Free Speech is a Bitch

We’re all for freedom of speech, aren’t we? Well sure, as long as it reflects our values, is not vulgar, and certainly does not use “the ‘f’ word.”

There is a case before the U.S. Supreme Court where a high school cheerleader (on the weekend, not from school and on her own social media account) did just that to express her dissatisfaction with not being chosen for the varsity cheerleading squad. Before the posting was removed, it was seen by another student and reported to the school, which proceeded to punish the student.((More details about the case can be found here.))

How many times have we read that a college, as either employer or educator, reacts to a controversial (perhaps hateful, maybe just impolitic) statement by one of its teachers or students by saying that the statement “does not reflect our values” and promises an “investigation” (read “we’ll make it sufficiently unpleasant that the speaker will quit”)?

Yesterday NJ.com reported((N.J. town warns homeowner to remove F-bomb anti-Biden flags or she’ll face fines. She isn’t backing down. (This article is behind their paywall as a “subscriber exclusive”). )) that Roselle Park is threatening daily fines of up to $500 to force one homeowner “to remove profanity-laced anti-President Joe Biden flags from her property . . . .”

Regulating speech can be a slippery slope, and we never know when our own views, even expressed with an attempt at civility on a little- (or even un-) read blog may not reflect someone’s values and require an investigation.

Jay Bohn
June 3, 2021

Post script
Today the Supreme Court voted 8-1 to affirm the decisions of the lower courts that the school’s discipline of the student for her off-campus speech violated the First Amendment.

J.B.B.
June 23, 2021

Critique of the Historical Case for Senate Jurisdiction to Try Impeached Former Official

This post was originally written as a letter to the editor of the two newspapers mentioned, but was too long for those fora.

In their respective January 17, 2021, editions, the Star-Ledger and Express-Times published an article from Bloomberg News which they entitled “Can Trump be tried after he leaves? Yes, history indicates.” The articles assert that the Senate can conduct President Trump’s impeachment trial after he leaves office.

What may once have been considered primarily an academic question has now taken on greater importance. A full discussion of the question would take far more space the than any newspaper can allot to letters to the editor. (The 2001 law review article by Brian Kalt mentioned in the newspaper article is 68 pages long and contains 554 footnotes.) Therefore, other than noting that there are other arguments for and against the power to try an impeachment against a former official, this post will only argue that the three precedents cited in the newspaper articles are of extremely limited value in answering the question. I am addressing only the process question and not whether President Trump should have been convicted if the trial had occurred while he was in office.

The first precedent identified in the article was the impeachment and trial of Warren Hastings in the British Parliament. Hastings had served as colonial governor in British India and, after he had resigned and returned to Great Britain, was charged with various offenses regarding his time in office. Because–Professor Kalt asserts–the members of the constitutional convention were aware of the trial which was ongoing at the time (the trial started in 1787 and did not end with a “not guilty” verdicts until 1795), they must  have wanted someone in Hastings’ position (a former office holder) to be impeachable. Not only does this assertion require a bit of a leap to reach, but it does not give sufficient weight to the fact that there was no legal limit to the power of the House of Commons to impeach anyone (office holder or not) and that punishment by the House of Lords was accordingly not limited to removal from office or disqualification from holding office in the future. Impeachment under the United States Constitution is much more limited.

The second precedent is the impeachment and trial of Senator William Blount, who was expelled from the Senate two days after the House of Representatives voted to impeach him. (Each house of Congress has the power to expel a member by a two-thirds vote.) Following the expulsion a trial was commenced on the impeachment charges, which Blount defended on several legal bases going to the jurisdiction of the Senate to try him, including the a senator was not a “civil officer” subject to impeachment and that in any event he was, as a result of the expulsion, no longer a senator at the time of trial. The Senate, by a majority vote, ruled that it did not have jurisdiction to try him. The resolution is ambiguous as to the actual basis for the conclusion of no jurisdiction, so this is hardly a strong precedent favoring the trial of a former official.

The third precedent cited is indeed the strongest, but once again the Senate’s jurisdiction to try a former officer was subject to intense argument. William Knapp, President Grant’s Secretary of War, resigned in the morning before a committee of the House of Representatives voted to impeach him in the afternoon. Although a majority of the Senate voted in favor of a resolution asserting that it had jurisdiction because Knapp had been an officer at the time of the offenses alleged, Knapp was ultimately acquitted, with most of the senators voting in his favor doing so because they disagreed with the ability to impeach and try a former official.

Far more numerous are the occasions when impeachment proceedings had commenced but were terminated by the timely resignation of the officer (most famously that of President Nixon in 1974).

In neither of the two pre-Trump cases governed by the U.S. Constitution was the impeached former office-holder convicted, so there has been no occasion for a court to decide this question. (This assumes that judicial review could be had; in 1993 the Supreme Court rejected an attempt by an impeached and convicted judge to challenge his removal on certain procedural grounds as being beyond the power of the courts to review.) Thus, the historical record supporting the Senate’s ability to trial is not only sparse, but particularly weak.

President Trump’s impeachment trial was in essence a repeat of Belknap’s: a majority of the the Senate voted that it had jurisdiction, but fewer than two-thirds voted to convict.

Jay Bohn
April 26, 2021