A guest post by author Patrice Johnson
The United States Supreme Court has announced it will hear an N. Carolina redistricting case, and it’s a whopper. The tsunami force of the high court’s ruling is expected to affect federal and state elections at all levels. At issue is who has ultimate authority over this nation’s elections: The courts? The federal government? State legislatures?
When the justices hand down their ruling, expected next June, the U.S. Congress and 50 state supreme courts will bow to the high court’s decision. Leftist governors and their secretaries of state across the fruited plain will either have their sails trimmed or feel emboldened to pull out the plugs in leaky election integrity dams.
Pure Integrity Michigan Elections and the Wisconsin Voter Alliance filed a brief with the Supreme Court. Yes, you read that right. On Sep. 2 at 9:45 AM, our organizations’ amici curiae brief went on the docket of the U.S. Supreme Court.
PIME, founded with eight people around a kitchen table less than two years ago, submitted what is called an Amici Curiae brief, Latin for friends of the court, with the Supreme Court of this nation. Amicus briefs are permitted to offer information, expertise, or insight that has bearing on a case’s issues. These briefs offer an assist to the court. The PIME/WVA brief supports neither party.
To view the WVA/PIME brief click here
Why this is a big deal
The WVA/PIME brief states that the landmark case brings the high court “onto the cusp of constitutional peril as it relates to the application of the independent state legislature theory, to the election process under the Elections Clause and Electors Clause of the U.S. Constitution.”
It’s hardly an overstatement to suggest that the court’s ruling will either devastate or fortify the foundational core of the republic for generations to come. The amici curiae was written by Attorney Erick Kaardal, a partner with Mohrma, Kaardal & Erickson, P.A. and Special Counsel to Thomas More Society.
Origins of the case
A dispute over who determines N. Carolina’s redistricting lines jarred the legal tidal wave into motion. Timothy K. Moore, speaker of the North Carolina House of Representatives, and Rebecca Harper and others came to loggerheads over who has the final say over the state’s redistricting lines. Moore maintains the authority rests with the elected state legislature. Harper and friends claim the power lies with the courts, whose judges are often appointed.
The case appealed its way up the ladder to the U.S. Supreme Court. SCOTUS generally defers to lower-court judgments and is reported to accept about 5% of the cases laid at its feet. On this rare occasion, the justices gave their nod to hearing the case.
Inherent constitutional questions
The independent state legislature doctrine and its meaning in the Elections Clause touch every voter and every branch of government. That’s why experts are forecasting the Supremes’ ruling will cascade through the legalities of federal election laws, Executive Orders, and future laws.
The WVA/PIME brief addresses the potential federal encroachments under the independent state legislature theory. Our organizations maintain that Biden’s Presidential Executive Order No. 14019, which commands government agencies to get out the vote in what appears to be a highly biased manner, represents government overreach. It’s legally unauthorized, and it’s big government pressing its thumb on the scales of individual liberty.
Take Michigan as an example. Last week, PIME filed a challenge to Promote the Vote (whom opponents refer to as Steal to Vote). The Board of State Canvassers voted 2-2, and the split decision kicked the proposal up to the Mich. Supreme Court. The state Supremes ruled to put Promote the Vote onto this November’s ballot.
If voters approve Promote the Vote, it will amend Michigan’s Constitution and hand over authority for our elections to the courts. (It will also allow billionaires to buy votes [Zuckerbucks], strip away voter ID requirements, thwart citizen oversight of elections, undermine chain of custody on ballots, allow ballot harvesting, require drop boxes, prohibit election integrity laws, and create a permanent absentee ballot list. But that’s a separate story.)
Since Federal law trumps state law, a Supreme Court ruling to uphold the independent state legislature doctrine would smash any conflicting state laws and constitutional provisions to smithereens.
“The doctrine can serve the people well or change the course of history and the meaning of democracy to generations to come affecting the integrity of elections and the electors’ confidence and acceptance of election outcomes (including the candidates themselves),” says the amici brief.
What the Constitution says about who should run our elections
The petitioners from N. Carolina are invoking the U.S. Constitution’s Elections Clause governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof.” U.S. Const. art. I, § 4, cl. 1.
In a nutshell, the independent state legislature theory holds that the federal Constitution in Article I’s Elections Clause and Article II’s Presidential Electors Clause give to state legislatures the power to exclusively regulate federal elections, excluding state executive branch and judicial branch officials.
Subsequent to the 2020 elections, courts reined back what they determined were executive branch overreaches. For example, they ruled against Michigan’s Secretary of State, who eschewed election law and unilaterally mandated election observers to stand six feet away. She trained clerks to assume the signatures on all absentee ballots were valid.
Other issues have yet to be challenged in court, such as when voters return absentee ballots that aren’t the ones issued to them. The current SOS elections manual instructs workers to mark mismatched ballots as challenged and then to process them…to count them!
MI Governor Gretchen Whitmer (D) vetoed bipartisan legislation that would have prohibited private funding of election administration. She vetoed vote ID requirements.
Let us not forget the bothersome issue of Michigan’s SOS Jocelyn Benson’s handing management of the state’s voter rolls over to the Soros-funded, leftist organization ERIC, the Electronic Registration Information Center.
Ripple effects of ruling
Who gets to determine a state’s presidential electors? Is the governor allowed to veto a duly passed legislative bill on elections? Do courts or governors have any sway over legislative law when it comes to the people’s elections? Who dictates the rules for federal elections?
The answers are all on the table. How the court interprets the Elections and Electors clauses in the Constitution could become legal doctrine and “will either strengthen or weaken our democracy for generations.”
The rap of Chief Justice John Robert’s gavel will part the fog and let the light of the U.S. Constitution shine through.
This is the stuff of which legends are made.
Patrice Johnson is chair of Michigan Fair Elections and Pure Integrity Michigan Elections. She authored The Fall and Rise of Tyler Johnson, the first-place winner of the 2017 National Indie Excellence Award for new nonfiction. The book is the basis for a soon-to-be-aired, nationally syndicated PBS documentary, FINDING TYLER. Johnson has founded four successful technology companies and holds a master’s degree in English Literature from Michigan State University.