Republican officials in Montana are already resurrecting the independent state legislature theory, which would imbue state legislatures with enormous power over federal elections.
Getting a majority on the Supreme Court to affirm some version of the theory has been a recent white whale of Republican state legislatures as they seek to make voting more difficult without the other branches of state government interfering. The Supreme Court in 2023 rejected a maximalist version of the theory pushed by North Carolina Republicans that would have empowered state legislatures to control voting laws, election administration and redistricting alone, to the exclusion of state courts and state constitutional guardrails..
But the majority, led by Chief Justice John Roberts, left room for ambiguity, saying that “state courts do not have free rein” in hemming in state legislative action, that the courts cannot “transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”
What “transgresses the ordinary bounds,” though, is anybody’s guess.
Montana Republicans are taking advantage of that vagueness to encourage the Court to produce a more robust form of Roberts’ theory, one which severely limits the extent to which state courts can enforce their constitutions (many of which include a right to vote).
In this case, the Montana Supreme Court knocked down two voter suppression measures — one of which would end same-day registration, curtailing registration at noon the day before the election, and the other which would ban the paid collection of absentee ballots — finding that they violated the state constitutional right to vote.
The Republicans say that the court has gone too far into the legislature’s terrain, that they should be able to make voting more difficult with impunity. They’re asking the Supreme Court to take up the case this term.
It’ll be a critical test to see how thoroughly the Court actually opposes the theory, which puts the true integrity of our elections (not the shorthand Republicans use when they want to give a respectable gloss to voter suppression) at serious risk.
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Frist!
I hate this court more everyday for the fact that there’s no telling on how they’ll rule for these bullshit theories. 600,000 Americans are going to have ended up dying in vain by the time they’re done reversing the results of the civil war.
Irony is dead.
CJ John Roberts* killed it in cold blood.
“… “transgress the ordinary bounds of judicial review such that they arrogate to themselves the power…”
/s, but metaphorically dead on accurate.
John Roberts will be finished unmaking democracy by the next presidential election. Count on it.
No kidding.
And today we are stuck praising Jeff Flake for endorsing Harris. Never mind he wimped out over blocking Kavanaugh’s nomination. I’m pragmatic, but it really hurts my heart!