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Supreme Court ruffled on State election regulation … so prepare for more fearmongering

Supreme Court ruffled on State election regulation … so prepare for more fearmongering

There is not much that the left abhors more than the Supreme Court doing its job of interpreting the meaning of the Constitution.  They especially hate if the justices actually make decisions based on what the Constitution says.  

The newest issue to get the left’s feathers ruffled is whether state legislatures are empowered by the Constitution to make rules governing elections in their respective states – including how presidential electors are chosen – without review by the state supreme courts.

The issue in Moore v. Harper is whether a state supreme court can overrule election regulations established by the state legislature – or is it left up to the legislature … period.  That includes redistricting.

Before getting into the issue, we should do something no news outlet seems to do.  Tell the public exactly what the Constitution says on that matter.  So here it is.

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 …”

When it comes to the electors who form the Electoral College – and will vote to choose the President and Vice President of the United States — here is what the Constitution says.

“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 Constitution clearly gives the state legislatures the unique and exclusive power to regulate elections and “appoint” electors.  The only limitation is that their electors cannot be stakeholders.

The language of the Constitution seems to support the “independent state legislature theory” – that state supreme courts are not empowered to interfere.  Only Congress can.  

That is what has the left going bonkers.  If there are two threads that run through the liberal fabric, they are that Washington should be the supreme power – with states and cities as compliant – and that the actual wording of the Constitution is not to be taken seriously.

BUT … the Constitution does give Congress the power to alter regulations by the state.  It does not give that power to the state supreme courts, however – although state courts have exercised such power in the past.  

Moore v. Harper is asking the Supreme Court to determine if the state courts have been operating outside of the Constitution by usurping the powers exclusively granted to the state legislature — or if there is some other interpretation of the Constitution that allows that power.  And whether the only counterbalance to ANY election regulation by a state legislature – including “time, places and manner of holding elections” – and that includes redistricting – is the Congress.

The Supreme Court can step in whenever state election laws are deemed to violate other provisions of the Constitution.  We have seen that, most notably in the area of civil rights.  In that same context, we have seen Congress use its authority to step in and supersede state election laws – again, most notably regarding civil rights.

In this issue – like so many others – Democrats and their media allies have created an artificial scaremongering narrative in the tradition of Chicken little – that the sky is falling on the American democracy.  In fact, they claim that IF the high Court upholds the Independent State Legislature Theory, it will be the end of democracy.  (The same bogus claim they have been peddling over the Capitol Hill riot and the election of Republicans to public office.  In a change of metaphor, they are crying wolf much too often.) 

The left’s claim that empowering state legislatures end democracy is prima facie silly.  State legislatures are also democratic institutions – and because they are closer to the people, they operate in a more representative (democratic) fashion than do the governing institutions in Washington.  It can be fairly argued that the Independent State Legislature Theory gives the people more power – and is therefore more democratic.

The left claims that to exclude the state supreme courts from oversight violates the balance-of-power between the branches.  Fact check.  The balance-of-power is a FEDERAL provision.  It does not apply to the states.  It may be a good idea, but it is not a Constitutional matter.

Finally, as this issue gets debated and hyperventilated in the next year, keep in mind that the Moore v. Harper case only applies to FEDERAL elections – meaning the Presidency, the U.S. Senate and the U.S. House.   State and local election rules and regulations remain under the authority of the states – and assumedly under the authority of state supreme courts.

As in the Democrats’ bogus Russian Collusion conspiracy theory, the Insurrection/Ongoing Coup Attempt conspiracy theory, we will be entertained for the next year by their latest – the State Legislatures are a Threat to Democracy conspiracy theory.

My guess is that the Supreme Court will decide against the Independent Legislature Theory, but that does not mean the proponents do not have a valid argument if you read the Constitution.  If the Court were to decide that the Theory is consistent with the Constitution, as written, I would bet there would be a future Amendment.  Remember, in the original Constitution, the state legislatures picked the U.S. senators from their respective states.  That was changed by the Seventeenth Amendment in 1911.

Stay calm and fear not!  No matter what the Supreme Court decides on Moore v. Harper, the Republic and American democracy is not at risk.  The only thing to fear is fearmongering, itself.

So, there ‘tis.

About The Author

Larry Horist

So,there‘tis… The opinions, perspectives and analyses of Larry Horist Larry Horist is a businessman, conservative writer and political strategist with an extensive background in economics and public policy. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman. He has served as a consultant to the Nixon White House and travelled the country as a spokesman for President Reagan’s economic reforms. He has testified as an expert witness before numerous legislative bodies, including the U. S. Congress. Horist has lectured and taught courses at numerous colleges and universities, including Harvard, Northwestern, DePaul universities, Hope College and his alma mater, Knox College. He has been a guest on hundreds of public affairs talk shows, and hosted his own program, “Chicago In Sight,” on WIND radio. Horist was a one-time candidate for mayor of Chicago and served as Executive Director of the City Club of Chicago, where he led a successful two-year campaign to save the historic Chicago Theatre from the wrecking ball. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He is praised by readers for his style, substance and sense of humor. According to one reader, Horist is the “new Charles Krauthammer.” He is actively semi-retired in Boca Raton, Florida where he devotes his time to writing. So, there ‘tis is Horist’s signature sign off.


  1. Tom

    I don’t know Larry. I do not fear either way. And for the most part, I can agree with what you have written. But I have for some time now wondered if we should divorce federal and state elections instead of having them on some huge ballot of a mix of federal positions such as POTUS, and congressional positions, to county environmental waste water administrators. Seems like if we had a federal election day where we only elected federal positions, it would simplify things quite a bit and allow for paper ballots that can quickly and easily be counted. And I think we should have a holiday that day called FED (Federal Election Day) Holiday. Then let the states have their in-state elections when they like, and they can make it a holiday if they choose. Personally I have always thought going to the polls in November is stupid for Northern states – so why can’t they go to the polls when they like, say, May or September? As far as the courts go, both federal SCOTUS and state SC’s should only be involved in one question: Is it legal by the laws currently on the books? And I think we really need to think about this whole issue of gerrymandering, but I have no suggestions. But we have in NC had several problems with this issue where the state SC was used to tell one side or the other that their new map was illegal and they needed to go back to the drawing board and redraw the map for court approval.

    • Sam

      We need our wonderful conservative scotus to rule that voter ID is constitutional. It is. Then blacks will figure out how to get it.