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Old 30th November 2022, 02:05 PM   #1
Hercules56
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SCOTUS to decide if Legislatures own election rules

https://www.rawstory.com/moore-v-harper-2658805721/

Imagine an America where state legislatures could require everyone vote only by touching their nose. Or Muslims could not vote. Or only one drop box in high-poverty areas.

Violates the state constitution? "Sorry, not our problem."

That's what the SCOTUS will be deciding on soon. Whether the state legislatures have the constitutional power to write ANY election laws they like, and these laws are totally and utterly immune from any judicial review, including from the Supreme Court.

Am I being hysterically hyperbolic? Nope. Some of these states want to do some really ****** stuff and if we give them that power they will wield it.

Luckily the Constitution says that Congress can write the rules regarding Congressional elections. Kind of hard to see how the Supreme Legislature Theory can get around that. They'd have to have a separate election day for Congressional and Presidential elections. Or make everyone leave the voting area and come back in so as to comply with the different rules.

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Old 30th November 2022, 02:18 PM   #2
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SCOTUS has, since the DJT douches got onboard, ruled in favor of states rights at every given opportunity so I wouldn't be shocked if this went back to the states as well. Unless a state has something in their constitution to make changes, then changes will be made, and even then most GOP states have a majority, some even a supermajority like ND, to change the state constitution. So unless the state courts rule it down I'd say plan and expect the absolute worst that can happen.
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Old 30th November 2022, 02:25 PM   #3
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Originally Posted by plague311 View Post
SCOTUS has, since the DJT douches got onboard, ruled in favor of states rights at every given opportunity so I wouldn't be shocked if this went back to the states as well. Unless a state has something in their constitution to make changes, then changes will be made, and even then most GOP states have a majority, some even a supermajority like ND, to change the state constitution. So unless the state courts rule it down I'd say plan and expect the absolute worst that can happen.
Trump's SCOTUS has also surprised us with rulings that went against Trump's favor. Hopefully they will again.
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Old 30th November 2022, 02:34 PM   #4
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Originally Posted by Hercules56 View Post
Trump's SCOTUS has also surprised us with rulings that went against Trump's favor. Hopefully they will again.
True, but this isn't for\against Trump, imo. It's about states rights. We'll see though. I generally expect the worst from the righties on the SCOTUS
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Old 30th November 2022, 02:41 PM   #5
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Originally Posted by plague311 View Post
True, but this isn't for\against Trump, imo. It's about states rights. We'll see though. I generally expect the worst from the righties on the SCOTUS
Something to keep in mind is that "States Rights" is often framed as area's where the rights of the States trump the rights of the Federal Government, but in practice States Rights are mostly about States not having to honor the rights if individuals.
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Old 30th November 2022, 02:42 PM   #6
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Originally Posted by plague311 View Post
True, but this isn't for\against Trump, imo. It's about states rights. We'll see though. I generally expect the worst from the righties on the SCOTUS
There seems to be a very clear Constitutional conflict that anyone with eyes and ears understands: Congress has the authority to write election rules for Congress, states have the authority to write them for Presidential elections.

I don't see an easy answer here. But the idea that anything the state legislature does should be even slightly immune from judicial review is scary.
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Old 30th November 2022, 02:49 PM   #7
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Originally Posted by Hercules56 View Post
There seems to be a very clear Constitutional conflict that anyone with eyes and ears understands: Congress has the authority to write election rules for Congress, states have the authority to write them for Presidential elections.

I don't see an easy answer here. But the idea that anything the state legislature does should be even slightly immune from judicial review is scary.
Only state judicial review
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Old 30th November 2022, 02:50 PM   #8
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Originally Posted by lomiller View Post
Something to keep in mind is that "States Rights" is often framed as area's where the rights of the States trump the rights of the Federal Government, but in practice States Rights are mostly about States not having to honor the rights if individuals.
No argument here!

Originally Posted by Hercules56 View Post
There seems to be a very clear Constitutional conflict that anyone with eyes and ears understands: Congress has the authority to write election rules for Congress, states have the authority to write them for Presidential elections.

I don't see an easy answer here. But the idea that anything the state legislature does should be even slightly immune from judicial review is scary.
I'm not saying you're right or wrong. I'm saying this SCOTUS has overturned decades old precedent in the name of state's (I was forgetting the apostrophe) rights, and I have no doubts that, even if it makes voting significantly more complicated, they'll do that in this situation as well. The right's goal is to make voting more complicated and convoluted. That works to their advantage.
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Old 30th November 2022, 03:08 PM   #9
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Originally Posted by BobTheCoward View Post
Only state judicial review
Says you. The Independent Legislature folks say its immune from ALL judicial review.
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Old 30th November 2022, 03:12 PM   #10
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Who decides how many seats each state gets in Congress?
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Old 30th November 2022, 03:15 PM   #11
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Originally Posted by Hercules56 View Post
Says you. The Independent Legislature folks say its immune from ALL judicial review.
That is a separate supremacy clause issue. The two groups just roll together a lot.
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Old 30th November 2022, 03:23 PM   #12
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Originally Posted by Norman Alexander View Post
Who decides how many seats each state gets in Congress?
The Senate is set at 2 Senators per state, the seats are determined based on the Census if I remember correctly. Which just took place and takes place every 10 years, I believe.
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Old 30th November 2022, 04:00 PM   #13
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Maybe start using the Repugs tactics against them so we can rid the country of them. It's not like they care about optics at all.

The options:

a) Do nothing while Repubs cheat then watch the country fall apart, maybe go to war.
b) Play dirty, use their tactics against them and stamp them out now by any legal means possible.
c) hope that things get better somehow on their own (see "a").

Maybe the left leaning states need to start striking back with their own stupid election laws, aggressive gerrymandering, etc. If the Repubs put only one drop box in Dallas then Dem states can at least threaten to put drop boxes only in major metro areas, or some other ideas. Or mail-in only.

We are fighting people who do not give a crap how bad they look. Will it be like a movie where everything just works out even if we play Mr. Nice Guy? Bad stuff can't happen here cuz we're special?

The Trump pendulum is swinging back, at least some. Look at Arizona. Take advantage.

I'm sick of waiting for the Republican party to fall apart. They aren't waiting for anything.

Aaaah just thinking out loud, I dunno. Start by indicting Trump for any one of his crimes. If we can't do that then we might as well throw in the towel. We had to fight to keep this country a few times already. We don't have to be nice.

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Old 30th November 2022, 06:50 PM   #14
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Originally Posted by Hercules56 View Post
Says you. The Independent Legislature folks say its immune from ALL judicial review.
Yeah, I don't think many people have a grasp on the Independent State Legislature theory and might want to get educated on it because this could effectively end US democracy as we know it.
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Old 1st December 2022, 07:38 AM   #15
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Here is the relevant clause

Quote:
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.
Yes, law dictionaries at the time defined legislature as the whole lawmaking body. I find that very convincing, but I think there is one last clause that needs considering

Quote:
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.
When state legislatures chose senators....was that subject to governor veto or state judicial review? If yes, and states treated the choosing of senators as laws, then it seems clear it was understood that legislature meant the combined law making body.

But was it done by vote of legislature and then the governor and judges had no say?

I have not been able to find an answer to this question.
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Old 1st December 2022, 07:39 AM   #16
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Originally Posted by Norman Alexander View Post
Who decides how many seats each state gets in Congress?
One house seat per 200,000 people I believe
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Old 1st December 2022, 07:44 AM   #17
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Originally Posted by Hercules56 View Post
One house seat per 200,000 people I believe
That can't be right. North Dakota has >700,000 people and only 1 House Rep.
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Old 1st December 2022, 07:49 AM   #18
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Originally Posted by plague311 View Post
That can't be right. North Dakota has >700,000 people and only 1 House Rep.
https://en.m.wikipedia.org/wiki/Reap...nt_Act_of_1929
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Old 1st December 2022, 08:36 AM   #19
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Originally Posted by Norman Alexander View Post
Who decides how many seats each state gets in Congress?
There's a law called the Reapportionment Act. It's been rewritten several times throughout our history to keep up with the growing population but hasn't been updated since about 1920.

That's when the HoR was hard-capped at 435. That should be 1 representative for every 770,000 people or so. But, since every state gets at least 1 rep and state borders are about geography, not population, and state legislatures draw up their own districts you get some crazy over and under-represented areas.
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Old 2nd December 2022, 10:11 AM   #20
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Originally Posted by Donal View Post
There's a law called the Reapportionment Act. It's been rewritten several times throughout our history to keep up with the growing population but hasn't been updated since about 1920.

That's when the HoR was hard-capped at 435. That should be 1 representative for every 770,000 people or so. But, since every state gets at least 1 rep and state borders are about geography, not population, and state legislatures draw up their own districts you get some crazy over and under-represented areas.
Yep, that's why we need to massively increase the number of representatives. For example, double it. Give Wyoming (population 560K) one rep. Propotionately, that would give Texas 52 reps, California would have 70, and New York would have 34. However, New York only has 26, California only has 52, and Texas only has 38.

To get equal representation of those states, we should have more like 600 representatives. I support that move.

I will note that it also will deal with a some of the issues in the Electoral College, at least some. For example, the difference between Wyoming and California will go from the current 187K/electoral vote in Wyoming and 712K/electoral vote in Cal (a factor of almost 4!) down to 187K to 544K, only a factor of 3. Still not great, but added up over the entire country, it's a difference.
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Old 2nd December 2022, 10:57 AM   #21
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I really do think thats the end of the United States if SCOTUS allows states to decide they can choose their congress people by any means whatsoever they decide even its completely undemocratic. The 'experiment' is then over. I see no reason to stick to a union with such states. Lets just all go our own way and have some free trade agreements or something.

I guess the complication is who gets the nukes?
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Old 2nd December 2022, 11:32 AM   #22
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Originally Posted by lobosrul5 View Post
I really do think thats the end of the United States if SCOTUS allows states to decide they can choose their congress people by any means whatsoever they decide even its completely undemocratic. The 'experiment' is then over. I see no reason to stick to a union with such states. Lets just all go our own way and have some free trade agreements or something.

I guess the complication is who gets the nukes?
It is appointed by an elected legislature. It wouldn't be any less democratic than not having. a popular vote for secretary of transportation.
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Old 2nd December 2022, 01:03 PM   #23
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Originally Posted by BobTheCoward View Post
It is appointed by an elected legislature. It wouldn't be any less democratic than not having. a popular vote for secretary of transportation.
So if the elected legislature decides to not let black people or women or Jews or Muslims vote you think that would be okay?
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Old 2nd December 2022, 01:08 PM   #24
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Originally Posted by Hercules56 View Post
So if the elected legislature decides to not let black people or women or Jews or Muslims vote you think that would be okay?
That's exactly the type of thing Bob is all for, and he's made it clear several times.

The sad part is that with the way the states are setup a good portion of those states will do everything they can to disenfranchise as many voters as it can.
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Old 2nd December 2022, 01:14 PM   #25
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Originally Posted by Hercules56 View Post
So if the elected legislature decides to not let black people or women or Jews or Muslims vote you think that would be okay?
You confuse an interpretation of the rules versus what I think of the rules. I think the constitution is a bad document, and this is an example of it doing a bad job.
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Old 2nd December 2022, 01:15 PM   #26
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Lets not let this thread get "bob'd".
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Old 2nd December 2022, 01:28 PM   #27
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Originally Posted by lobosrul5 View Post
Lets not let this thread get "bob'd".
It is a little BS to discuss something like a rule and then someone asks if I'm okay with some outcome as if I endorsed the rule or wrote it. I don't understand why it comes up so much in constitutional interpretation.
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Old 2nd December 2022, 03:03 PM   #28
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Originally Posted by plague311 View Post
The Senate is set at 2 Senators per state, the seats are determined based on the Census if I remember correctly. Which just took place and takes place every 10 years, I believe.
I understand what the setup is. What I am wondering is how this was/is set. Is it carved into Mt Rushmore by the finger of god and is immutable? Or can it be changed? If so, how?
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Old 2nd December 2022, 03:11 PM   #29
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Originally Posted by Norman Alexander View Post
I understand what the setup is. What I am wondering is how this was/is set. Is it carved into Mt Rushmore by the finger of god and is immutable? Or can it be changed? If so, how?
Gotcha, that's a good question. I'm not positive, but my best guess is that it would have to be done via constitutional amendment, but I have nothing to back that up, and I'm extremely lazy right now. To do that they'd need 2/3 of the states to agree.

Yup, here are the details:

Quote:
According to Article I, Section 3 of the Constitution, “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof for six Years.” The framers believed that in electing senators, state legislatures would cement their ties with the national government.
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Old 2nd December 2022, 03:40 PM   #30
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Originally Posted by plague311 View Post
Gotcha, that's a good question. I'm not positive, but my best guess is that it would have to be done via constitutional amendment, but I have nothing to back that up, and I'm extremely lazy right now. To do that they'd need 2/3 of the states to agree.

Yup, here are the details:
Three quarters to ratify an amendment actually. After being officially proposed, either by Congress or a national convention of the states, a constitutional amendment must then be ratified by three-fourths (38 out of 50) of the states.


https://en.wikipedia.org/wiki/Articl..._of_amendments

So, if it is decided that states have sole power to decide how they decide their congressional reps, we'll eventually get nutty things like Texas creating their own electoral system in which the counties (or state senate districts) shall decide the governor and the governor shall appoint all congressmen. Think I'm being a crazy "librul"? Read this: https://www.democracydocket.com/anal...toral-college/

Eventually every red state will just send nothing but GoP reps to Washington, and then to counteract that every blue state will send democratic reps to Washington.
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Old 2nd December 2022, 06:17 PM   #31
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Originally Posted by BobTheCoward View Post
You confuse an interpretation of the rules versus what I think of the rules. I think the constitution is a bad document, and this is an example of it doing a bad job.
Constitution never says that any rule or law made by the states shall be immune from judicial review. Such an interpretation would allow a state legislature from banning women or Jews or blacks the right to vote, even if violates state or Federal law.

Do you agree that the such a rule would be legal?
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Old 2nd December 2022, 07:36 PM   #32
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Originally Posted by Hercules56 View Post
Constitution never says that any rule or law made by the states shall be immune from judicial review. Such an interpretation would allow a state legislature from banning women or Jews or blacks the right to vote, even if violates state or Federal law.

Do you agree that the such a rule would be legal?
You asked if that would be okay, not if it was legal. I'm not I already commented about judicial review on the first page.
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Old 2nd December 2022, 10:40 PM   #33
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Originally Posted by plague311
Originally Posted by Norman Alexander View Post
I understand what the setup is. What I am wondering is how this was/is set. Is it carved into Mt Rushmore by the finger of god and is immutable? Or can it be changed? If so, how?
Gotcha, that's a good question. I'm not positive, but my best guess is that it would have to be done via constitutional amendment, but I have nothing to back that up, and I'm extremely lazy right now. To do that they'd need 2/3 of the states to agree.

Yup, here are the details:

Quote:
According to Article I, Section 3 of the Constitution, “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof for six Years.” The framers believed that in electing senators, state legislatures would cement their ties with the national government.
Great - many thanks!

So the next obvious question is: Can the phrase "chosen by the legislature thereof" imply that the same legislatures (i.e. state legislatures) are permitted to use each-to-their-own electing method? That is: The current rag-bag of methods, with their known issues and shortcomings that are being played to the hilt to tilt the result.

Or could it equally imply that the federal senate can impose a method that each state must use? That is: a true "federal election" of senators using the same electing method throughout the country.
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Old 3rd December 2022, 05:05 AM   #34
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Originally Posted by Norman Alexander View Post
Great - many thanks!

So the next obvious question is: Can the phrase "chosen by the legislature thereof" imply that the same legislatures (i.e. state legislatures) are permitted to use each-to-their-own electing method? That is: The current rag-bag of methods, with their known issues and shortcomings that are being played to the hilt to tilt the result.

Or could it equally imply that the federal senate can impose a method that each state must use? That is: a true "federal election" of senators using the same electing method throughout the country.
...That part was changed by the 17th amendment
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Old 3rd December 2022, 09:58 PM   #35
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Originally Posted by BobTheCoward View Post
...That part was changed by the 17th amendment
That amendment only affirms that the legislatures must elect senators directly. It does not prevent the federal government mandating what voting method or standard of election process the state legislatures must use.
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Old 5th December 2022, 08:26 AM   #36
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It’s tough to say how the conservatives on the Court will rule. On the one hand, they want to maximize GOP political advantages, but on the other, the GOP has already maximized their advantages in many locations. A ruling that specifically says that political gerrymandering is OK might encourage Democratic legislatures in New York and California to go all in on political gerrymandering, shifting things against the GOP.

Plus, a ruling against the patently absurd ISL doctrine would give them a torrent of mainstream media stories congratulating them on how non-partisan they are and how we can never question the non-partisan nature of the Supreme Court again ever, ever, ever.

The six conservative justices will have to think long and hard about the best way to give power to conservatives before they decide what to say the Constitution says.
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Old 5th December 2022, 09:07 AM   #37
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Originally Posted by Norman Alexander View Post
That amendment only affirms that the legislatures must elect senators directly. It does not prevent the federal government mandating what voting method or standard of election process the state legislatures must use.
Which basically means the feds can't do that.

Edit to add, this may have been addressed but I only saw some partial answers.

The Senate is set at 2 per State in the constitution and would require an amendment to change.
The house is just required to popularly elected and proportional to population in the constitution. So that can be changed by legislation. There was a time when changing it was feasible, not so much these days.

We should have more Representatives. That would make allow more proportional representation. I suppose the argument against is that at some point a legislature would become so big as to be completely unworkable. Can't say as that would change much in the US these days. The alternative that would come close to accomplishing the same thing is breaking up the big states in to smaller constituencies, increasing the number of Senators. That requires legislation and amendments to state constitutions as well as federal legislation. We should probably do both.

The real problems are that we all hate each other and everything has been made a federal issue. If you hate everyone in the state across the border and they also almost as much say in your governance as you do, well that's gonna be a problem.

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Old 5th December 2022, 11:10 AM   #38
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Originally Posted by Random View Post
It’s tough to say how the conservatives on the Court will rule. On the one hand, they want to maximize GOP political advantages, but on the other, the GOP has already maximized their advantages in many locations. A ruling that specifically says that political gerrymandering is OK might encourage Democratic legislatures in New York and California to go all in on political gerrymandering, shifting things against the GOP.

Plus, a ruling against the patently absurd ISL doctrine would give them a torrent of mainstream media stories congratulating them on how non-partisan they are and how we can never question the non-partisan nature of the Supreme Court again ever, ever, ever.

The six conservative justices will have to think long and hard about the best way to give power to conservatives before they decide what to say the Constitution says.
This isn't about New York and California. This is about Wisconsin, Ohio, Georgia, North Carolina, and any other state that currently has a Republican-run legislature but isn't entirely deep red. New York and California can be 100% bright blue. AOC can be elected governor of New York and Katie Porter governor of California and it wouldn't matter in the federal government.
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Old 5th December 2022, 11:26 AM   #39
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Originally Posted by Donal View Post
This isn't about New York and California. This is about Wisconsin, Ohio, Georgia, North Carolina, and any other state that currently has a Republican-run legislature but isn't entirely deep red. New York and California can be 100% bright blue. AOC can be elected governor of New York and Katie Porter governor of California and it wouldn't matter in the federal government.
Well, the ISL theory only applies to Federal Elections, so it definitely does matter on the Federal level. The issue in Moore V Harper is the gerrymandering of federal congressional seats, and if the state Legislature can just enact partisan Federal maps regardless of what anyone else says.

There are several states where Democrats have control of the legislature, but have enacted laws that have non-partisan redistricting commissions draw the maps. The Court saying that the State Legislatures can do whatever they want without any kind of oversight would open a flood of stuff in red states, but it might also cause some blue states to say, "Hey, if the game is going to be rigged, let's not be the only side not rigging it."
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Old 5th December 2022, 12:43 PM   #40
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Originally Posted by ahhell
Originally Posted by Norman Alexander View Post
That amendment only affirms that the legislatures must elect senators directly. It does not prevent the federal government mandating what voting method or standard of election process the state legislatures must use.
Which basically means the feds can't do that.

Edit to add, this may have been addressed but I only saw some partial answers.

The Senate is set at 2 per State in the constitution and would require an amendment to change.
The house is just required to popularly elected and proportional to population in the constitution. So that can be changed by legislation. There was a time when changing it was feasible, not so much these days.

We should have more Representatives. That would make allow more proportional representation. I suppose the argument against is that at some point a legislature would become so big as to be completely unworkable. Can't say as that would change much in the US these days. The alternative that would come close to accomplishing the same thing is breaking up the big states in to smaller constituencies, increasing the number of Senators. That requires legislation and amendments to state constitutions as well as federal legislation. We should probably do both.

The real problems are that we all hate each other and everything has been made a federal issue. If you hate everyone in the state across the border and they also almost as much say in your governance as you do, well that's gonna be a problem.
Sorry, but I think you missed my point. I was not talking about the numbers but the method of election.

What the 17th amendment says is the states elect senators directly. That is their mandated state "right" in this matter.

My point was that it does not specify the method of those elections. The states currently use whatever election method they like, from regular and fair voting to the current biased and gerrymandered voting now seen in some states. They could even use boxing matches and beauty contests or whatever.

My point was that it would seem viable although not popular that the federal government can impose a consistent method for all states when electing senators, while not violating their state rights.
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