Chickens come home to roost

[Enzo]

Recently Roe v Wade was overturned and now abortion law is returned to the states, and many of them were ready with abortion bans. Well, it didn't take long. A 10 year old girl in Ohio was impregnated by rape. Ohio has a strict 6 week abortion limit. The girl has been pregnant 6 weeks and THREE DAYS. Ohio would force her to carry the pregnancy and give birth. It could even kill her. She would up having to be taken to Indiana for an abortion. Indiana will itself be restricting them, but not yet.

In another incident, republican states have been enacting legislation to take control of elections by the legislatures. They are free to send electors of their choice. Yes, even if the voters favor the other candidate, they can send electors for theirs. This is already happening. I forget where now, but a local election was held and one candidat clearly won by good margin, but the GOP locals decided they wanted to run the other guy anyway, so they took the election from him.

[Мастер]

Recently Roe v Wade was overturned and now abortion law is returned to the states, and many of them were ready with abortion bans. Well, it didn't take long. A 10 year old girl in Ohio was impregnated by rape. Ohio has a strict 6 week abortion limit. The girl has been pregnant 6 weeks and THREE DAYS. Ohio would force her to carry the pregnancy and give birth. It could even kill her. She would up having to be taken to Indiana for an abortion. Indiana will itself be restricting them, but not yet.

In another incident, republican states have been enacting legislation to take control of elections by the legislatures. They are free to send electors of their choice. Yes, even if the voters favor the other candidate, they can send electors for theirs. This is already happening. I forget where now, but a local election was held and one candidat clearly won by good margin, but the GOP locals decided they wanted to run the other guy anyway, so they took the election from him.

I'm not sure state legislatures ever needed any court ruling to send their own electors, instead of having them chosen by election. There is no federal requirement that the electors be chosen by popular election. and in the early history of the US, many states did exactly that - the legislature chose the electors. It was the same for senators, but that has been changed by constitutional amendment.

What came up in Florida, 2000, though, was that federal law prohibited them from changing the rules of the election after the fact. So a state can choose to have their electors chosen by the state legislature, instead of by a public election. They just have to decide to do it in advance. They can't have the election, then decide they don't like the outcome and change the method retroactively. (Depending on the particular state, there might be other rules involved. I don't know whether any state constitutions require public elections for presidential electors.)

I have recently seen an article commenting on an interpretation of the US constitution, which states that because it empowers the "legislature" of the state to oversee elections, this means entities like state courts cannot interfere. E.g., a state court cannot rule that the legislature did not follow the state constitution or its own laws when it comes to election matters - whatever the legislature says, is final. I don't believe any case on this interpretation has yet worked its way through the courts. So I'm not sure if that is related to this issue or not.

But if that interpretation does goes through, I guess everyone has to decide whether they want to choose their state legislators based on their policies in the state (taxes, budgets, regulation, personal freedom, whatever) or based on whom they'll vote for in any upcoming presidential election.

One remedy, if one thinks the electors should be chosen by popular election, is a constitutional amendment requiring this. To get such an amendment passed would require 2/3 of the house, 2/3 of the senate, and three-fourths of the states, so some of the state legislatures would have to vote to limit their own power to make that happen. Alternatively, a constitutional amendment could eliminate the electoral college entirely. Watch for amendments along these lines to be introduced, and then probably not pass.

I'm having trouble keeping up with all the legal things going on in the US . . .

[tubeswell]

Those homing chickens will be from eggs Trump's chooks laid.

[Enzo]

The states are constitutionally bound to send electors, but within each state are the rules by which they do so. In many if not most states the legislature cannot just up and send whoever they want. But what is going on is in states they can get away with it, they have taken responsibility from an election board or other supervisors and giving it to the legislature itself. Thus no longer bound by laws and rules that prevented electors by fiat in the past.

There has been active opposition to the electoral college for a long time, but I doubt it will happen any time soon, as the right wing benefits from the system more than does the left.

I forget now, but I think in Nevada, one of their reps has proposed an end to the one man one vote rule. He has some rationale for rural voters having more count than urban voters. "Why should all those people in the cities get to outvote us in the rural areas?"

[Мастер]

The states are constitutionally bound to send electors, but within each state are the rules by which they do so. In many if not most states the legislature cannot just up and send whoever they want. But what is going on is in states they can get away with it, they have taken responsibility from an election board or other supervisors and giving it to the legislature itself. Thus no longer bound by laws and rules that prevented electors by fiat in the past.

Well yes, each state has its own rules, but those rules are set by the state itself, not the federal government.

But what I am wondering is - why does a state legislature ignore or override the rules, if they have the authority to change the rules? They are the state legislature after all, and having the state choose its electors legislatively rather than by popular election is perfectly permissible under the US constitution (and was even done a lot, in the first half of the 1800s).

The two main possibilities that occur to me are,

a) The state constitution specifies some of the election rules, so the state legislature actually doesn't have the authority to change them, unless they can change the state constitution. (And the procedure for that is probably different in every state - maybe it is difficult or impossible in some states.)

b) They already had the election, didn't like the outcome, and decided to change the rules retroactively. As I understand it, this is not permitted under federal law, but perhaps relies on this new innovative legal theory that the feds have empowered the "legislature" to choose the elector, so the state courts have no authority to interfere, even if the state legislature fails to follow its own laws and perhaps constitutional provisions.

So is one of these two situations, what is happening?

Because if not, then I'm not sure why, under the US system, any state that wanted to, could not simply choose presidential electors by the legislature instead of by election. The people of the state can turn the legislators out if they don't like this change, but I'm not sure what legal bar there would be. So why ignore the rules, when you can make the rules?

I forget now, but I think in Nevada, one of their reps has proposed an end to the one man one vote rule. He has some rationale for rural voters having more count than urban voters. "Why should all those people in the cities get to outvote us in the rural areas?"

I'm not sure the US ever really had a one-man one-vote rule. There is something close to that for the House of Representatives, but even there, in the early history of the country, states excluded women from voting, slaves, non-property holders, etc. - all perfectly legally. Not a lawyer here, but it is my understanding that subsequent constitutional amendment (direct election of senators, women get the vote, former slaves get citizenship, etc.), and in particular, the interpretation of the fourteenth amendment to apply to the states as well, that turned the US into something more resembling what we would call a "democracy" today - it was very far from being democratic in the early days, some states had property qualifications to vote, etc.

So on ending the one-man one-vote rule in Nevada, the question that occurs to me is, do the states actually have such a rule? Is there any requirement that representation in the state legislature be approximately proportional?

If not, maybe they need to start a one-man one-vote rule, before they can end it.

[Richard A]

I suspect the history of who can vote in the US has similarities to the UK one. We need to remember who the leaders of the American Revolution were. In contrast to other colonies that kicked us out, they were the descendants of English settlers. (My understanding is that the Scots came later, after independence.) George Washington's two brothers were sent to school in England. So although they didn't like being ruled by the British King and embraced republicanism, they had English attitudes as to who should have a stake in the political process. A property requirement was in keeping with Britain at the time, as Scotland found out all too painfully. So was male-only franchise. I suspect that the forces that in time got rid of both here also came into play there.

The exception being the race issue. Although Britain only outlawed racial discrimination in the mid-1970s - yep, prior to 1976, it was perfectly legal to refuse to hire someone because they were black, Pakistani or whatever and I guess it would have been legal to have a property covenant that prohibited sale to a black - we did give all races the vote. But then, until 1981, we were all British subjects - my 1st passport, issued in 1977, described me as "British Subject: Citizen of the United Kingdom and Colonies". Jim Crow was never established to the same extent here as it was in the US, especially the South.

[Enzo]

Well, semantics may rear its ugly head, but... One man one vote simply meant each voter carried equal weight. If they didn't let women vote at some point, it applied to the men who did. Who gets to vote is not the same as how each vote counts. In any case, the idea that individual votes in rural counties should count more than urban votes strikes me as wrong. And that was exactly what the guy was proposing.

In my state, like most, the legislature cannot just turn on a dime and change rules day to day to suit themselves. Our secretary of state oversees the elections. She herself is elected. The legislature wants to change things so the legislature itself oversees the elections. They want to run the elections that put them into office. They openly want to be able to decide the votes from say Detroit are corrupt and so we will just disqualify all of them. In our case the governor is a democrat, as is the SOS, and the gov will veto any such bill. But in states that have republican governors as well as republican majority legislatures, such changes are happening all around.

These states are not ignoring or overriding their rules, they are changing them to their advantage.

[Мастер]

We’ve got a few different things going on here. Let me take them one at a time.

In my state, like most, the legislature cannot just turn on a dime and change rules day to day to suit themselves. Our secretary of state oversees the elections. She herself is elected.

What is it that prevents the legislature from changing things whenever they want?

I could imagine that the Secretary of State is a position created, with some responsibilities described, in the state constitution. Is it? If so, then the legislature could not just vote the office out of existence, or transfer the responsibility for overseeing elections from this office to themselves - they’d need to change the constitution. Maybe that requires a supermajority, a referendum, or maybe it’s just impossible - I know nothing about the Michigan state constitution.

I could also imagine that there is some federal law that prevents them from doing it. As I understand it, before the 1860s, the states had considerable freedom to do what they wanted, but the fourteenth amendment to the federal constitution has been interpreted to push all kinds of federal constitutional provisions onto the states as well. (E.g., prior to the fourteenth, the federal government couldn’t censor your speech, due to the first amendment, but the state government could, unless they had their own version of the first amendment. After the fourteenth, the state government couldn’t censor your speech, regardless of what the state constitution or laws said.) The federal constitution requires the states to have a republican (small “r”) form of government, so the state of Michigan could not declare itself a hereditary monarchy. If the state legislature voted itself the power to oversee its own election, perhaps a sufficiently activist court would rule that, even though the state is in outward form a republic, it is sufficiently corrupted in practice that it is in violation of the requirement to have a republican form of government. Or perhaps there is some other federal law that applies here.

If neither of these applies, then what prevents the state legislature from changing the rules whenever and as often as it suits them? There is the wrath of the voters, if they don’t do a good enough job rigging the elections, but is there something other than that?

So if this afternoon, the state legislature of Michigan declares that, effective immediately, authority for overseeing elections is transferred from the Secretary of State to the legislature itself, and that they will set the rules, count the votes themselves, resolve any disputes about the validity of the votes, etc. - what exactly prevents them from doing this?

The legislature wants to change things so the legislature itself oversees the elections. They want to run the elections that put them into office. They openly want to be able to decide the votes from say Detroit are corrupt and so we will just disqualify all of them. In our case the governor is a democrat, as is the SOS, and the gov will veto any such bill. But in states that have republican governors as well as republican majority legislatures, such changes are happening all around.

These states are not ignoring or overriding their rules, they are changing them to their advantage.

So other than voter outrage (which may or may not matter, depending on how thoroughly the system gets corrupted), or perhaps their own sense of what should and should not be allowed, what stops them from doing this?

If the answer is “nothing”, I think the available remedies are

a) vote the jokers out of office, if the system has not been too thoroughly corrupted to allow that, or

b) amend the state constitution to prohibit these practices, since the legislature can’t just change the constitution whenever they like, unlike ordinary laws.

[Enzo]

What stops them? Well not least, the fact we have a governor poised to veto any such actions. In many other states, they are indeed unfettered as the governor and legislature are all in the same party. Also ther are rules about the new rules taking effect. For example, the legislature can vote itself a large pay raise, but it won't take effect until after the next term ends. And there are existing rules that cannot be just pitched overnight. Do I know them all, or even many of them? No. But they are there.

And again what stops them? Serious gerrymandering is one thing. Again, I forget the state, One of the Carolinas maybe? In that state the voters were very close to 50/50, but the gerrymandered districts cause the results of congressional races left only 2 of 13 in the hands of democrats. And selective voter suppresssion affects results. 23 states rushed to enact such suppression laws. Like outlawing vote drop boxes at precincts - now require one go inside to vote. Trying to make it hard to get a mail in ballot. These are voting methods used more by democrats than republicans. In one area, they closed all the precincts and moved them a mile out of town to a school. MAking it harder for low income folks to get there. A church had a program where they held a service then took voters by bus to the precinct. The authorities banned that, no one unrelated can convey a voter to the polls. It goes on and on. In some places where long lines have happened, they made it illegal to supply food or drink to anyone in line to vote. Seriously. It goes on and on.

You can amend the constitutions, but that takes time

[Enzo]

Another chicken...
North Carolina legislature has introduced a bill to remove and scrap any public automobile charging stations. ANy "free" charging stations at places like restaurants must put the expense of the electricity on your bill. They offered alternatives. If we keep the public chargers, we then have to have free gasoline vendors as well.

https://www.msn.com/en-us/news/us/north ... li=BBnb7Kz

[Мастер]

I am trying to understand the issue here.

(Throughout, interpret "legislature" as "legislature plus governor" if the governor is required to pass legislation. I just got tired of typing it every time.)

Do you feel the state legislature is trying to do something it doesn't have the authority to do?

Or do you feel they are doing something they do have the authority to do, but that you think is bad policy?

If the first, then take their arses to court and stop them. If these "rules" are in the state constitution, or in federal law, then the courts should smack them down.

If the second, where these "rules" are simply rules the legislature itself has passed (or rules which exist only in the minds of the public), and which can be changed any time the legislature likes, then I'd say you have two options. One is to get used to a legislature that sometimes does things you don't like. The other is, get a rule into the state constitution, so that the legislature can't do what they are trying to do, no matter how strongly they support it.

Personally, I think rules on running elections are one of the first things you should have protected in a constitution, where the legislature can't change them (or at least not change them easily) - otherwise, the whole system is rather easily corrupted.

So are there already state constitution prohibitions (or federal prohibitions) against what these states are doing? If so, I don't see the problem - go to court and sue their arses. If there are no such prohibitions, my advice would be, lobby to get some in place.

[Enzo]

Well of course. WHile the bad guys are working day and night to tilt things their way, we good guys are trying hard to prevent it, but they are sitting in charge now and thus have the advantage, Most of what they do is legal, though ethically bankrupt.

We have petitions, if we get enough signatures, we can get an issue on the ballot to go around the legislature. An example: People demanding minimum wage be raised to $15 an hour. They got the signatures, so the issue would then be placed on the November ballot. BUT WAIT. The legislature then passed its own wage increase before that date. That obviated the issue, and so it was no longer to be voted on. But unlike the constitutional issue, their increase can be just as easily undone, and that is exactly what they did. After the election they rescinded the raise. For them, problen solved. For the people, they were screwed out of their day at the vote.