Earlier today, Reveal News' Andy Donahue tweeted out some screenshots promoting his organization's "The Weekly" newsletter.
The case being argued at SCOTUS tomorrow is just as big a threat to our democracy — if not bigger — than election-denying candidates.
— Andy Donohue (@add) December 6, 2022
Part of the Center for Investigative Reporting, it should come as little surprise that Reveal News, an outfit that works hand in glove with the likes of left-wing Mother Jones, is heavy on selective outrage and outright dishonesty.
First, I want to highlight the lie:
Does the federal government delegate election administration to the states?
What does the Constitution say? Article 1, 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 [sic] Senators.
Nope. The constitution says that it's the responsibility of the state legislatures. Not the states as a whole. The legislatures.
Maybe I'm just reading it wrong. What does the National Constitution Center say is the "common interpretation" of this clause?
One unusual feature of the Elections Clause is that it does not confer the power to regulate congressional elections on states as a whole, but rather the “Legislature” of each state. The Supreme Court has construed the term “Legislature” extremely broadly to include any entity or procedure that a state’s constitution permits to exercise lawmaking power. Thus, laws regulating congressional elections may be enacted not only by a state’s actual legislature, but also directly by a state’s voters through the initiative process or public referendum, in states that allow such procedures.
The Court also has held that a legislature may delegate its authority under the Elections Clause to other entities or officials. A few states have chosen to transfer power to draw congressional district lines from their respective legislatures to non-partisan or bipartisan “independent redistricting commissions.” These states believe that such commissions can make the electoral process more fair by preventing voters from being divided into congressional districts in ways that unduly protect existing officeholders (“gerrymandering”).
Nope. I'm not the one reading it wrong.
In 2020, numerous state courts made changes to election laws to address what they said were unforeseen results of the COVID pandemic. These varied from state to state, but often included extending early voting hours, expanding the availability of ballot drop boxes and the like. In some cases, the loosening of voting rules came after the state legislatures had already made accommodations, but courts acted as if this was not enough.
A federal judge in Wisconsin was smacked down by the Supreme Court for throwing out that state's rule that absentee ballots had to be in by election day. As Justice Neil Gorsuch noted:
Weeks before a national election, a Federal District Judge decreed that Wisconsin law violates the Constitution by requiring absentee voters to return their ballots no later than election day. The court issued its ruling even though over 30 States have long enforced the very same absentee voting deadline—and for understandable reasons: Elections must end sometime, a single deadline supplies clear notice, and requiring ballots be in by election day puts all voters on the same footing.
Why did the district court seek to scuttle such a long-settled tradition in this area? COVID. Because of the current pandemic, the court suggested, it was free to substitute its own election deadline for the State’s. Never mind that, in response to the pandemic, the Wisconsin Elections Commission decided to mail registered voters an absentee ballot application and return envelope over the summer, so no one had to ask for one. Never mind that voters have also been free to seek and return absentee ballots since September. Never mind that voters may return their ballots not only by mail but also by bringing them to a county clerk’s office, or various “no touch” drop boxes staged locally, or certain polling places on election day. Never mind that those unable to vote on election day have still other options in Wisconsin, like voting in-person during a 2-week voting period before election day. And never mind that the court itself found the pandemic posed an insufficient threat to the health and safety of voters to justify revamping the State’s in-person election procedures.
This is the sort of thing that happened around the country and had Donald Trump's acolytes screaming bloody murder. I was annoyed at the courts at the time because of the way this meddling by state courts, if you read the constitution's election's clause as the common interpretation does, that what the courts were doing was unconstitutional.
Which brings us to the "Why this matters" part of Donahue's article.
If the Supreme Court adopts the argument, state legislatures would be free to gerrymander without any state oversight.
Of course, by "state oversight," Donahue means "state judicial oversight." Federal courts would still be empowered to ensure that federal laws aren't violated by the state legislature's actions.
However, it's a little more complicated than that. In the past, the Supreme Court has been okay with state legislatures delegating the responsibility for drawing congressional district lines to "nonpartisan" committees. It's unlikely that the Supreme Court would declare that decision by state legislatures as unconstitutional.
So, is there no check on the state legislature on drawing congressional lines? Not exactly. This only applies to congressional elections. Courts can still exercise a check on the drawing of state house and senate lines. And that can obviously have a deciding impact on the makeup of the legislature and how they ultimately draw the other congressional lines.
Of course, winning elections are tougher than getting a few judges to take your side, which is why both sides would prefer the latter, based upon the makeup of the court in question.
This is not the end of democracy, no matter which way the Supreme Court goes on this question. What is troubling is that this is another case of the news media lying for partisan political purposes. Donahue lied about what the constitution says and thereby throws the rest of his argument into the crapper.
And, if we have another contested presidential election like we did in 2020, it could provide more legal firepower to the side trying to overturn the will of the voters.
Well, it would, but only if the courts were willing to ignore the constitution—and the Supreme Court's decision—by making changes to the legislatively enacted voting laws at the last minute. There is no additional firepower if the courts stay in their lane.
[If the Donahue's tweet above ever disappears, you can find the screenshots from the newsletter here and here. (I do this because their newsletter archive hasn't been updated in nearly two years.) —ed.]