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What You Need to Know About Moore v. Harper, the Supreme Court Case That Could Blow Up American Democracy

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The case could give state legislatures unchecked power to make election rules without any intervention from state courts, governors, or voters.


Moore v. Harper Background

The Supreme Court is currently considering a case that could drastically alter the way elections are conducted in the U.S. and seriously undermine essential democratic processes.

The case in question is called Moore v. Harper and centers around Republican gerrymandering in North Carolina. After the 2020 Census, the state’s Republican-controlled legislature adopted a new Congressional map that gave them a supermajority and a major advantage in winning House seats.

The North Carolina Supreme Court rejected the map, arguing it was “an egregious and intentional partisan gerrymander” that violated the state’s Constitution. As a result, the legislature re-drew their map, but that was also rejected for being gerrymandered by a state court that appointed a special master to make a fair map.

After some more legal back and forth, the Republicans brought the case to the Supreme Court, which eventually agreed to hear it.

All of that might sound pretty run-of-the-mill, but what makes this case so unique is the argument North Carolina Republicans are making in asking the Supreme Court to reinstate their map.

“Moore v. Harper is really one of the most important democracy-related cases that the U.S. Supreme Court has ever heard, ever,” Mike Sozan, a senior fellow at the Center for American Progress, told Rogue Rocket.

The basis for the Republicans’ claim relies on an untested, fringe idea called the Independent State Legislature (ISL) theory, which has recently gained traction after being touted by former President Donald Trump and his allies in their effort to overturn the election.

ISL theory argues that the U.S. Constitution gives state legislatures essentially exclusive authority to set election rules and congressional maps — and nothing can stop them. State legislators could basically make whatever changes they want to their election systems, and governors or state courts would be prohibited from intervening.

State lawmakers could also ignore election-related ballot initiatives, undermining the will of voters. Most alarmingly, the legislatures could even violate their own state Constitutions — which the North Carolina Republicans are arguing for in this case.

The Basis for ISL Theory

Sozan explained that the North Carolina Republicans point to two clauses in the U.S. Constitution that pertain the powers given to “legislatures” to “do things like set election rules for federal elections and that play a role in how presidential electors are selected.”

“It’s true that the word legislature appears in the Constitution in those clauses, but over the course of the 200-plus year history of our country, the Supreme Court has never interpreted the word legislature that narrowly,” he said. “It has, in fact, always interpreted that word in the common sense way, which is a broad interpretation.” 

Sozan asserted that the “broad interpretation” of these clauses is basically just that checks and balances should exist — governors should be involved in lawmaking and courts should have the power of judicial review.

As a result, when ISL theory has been raised in the past, “the court has almost always struck it down completely.”

The theory has also been widely discredited by experts on both sides of the aisle — including many prominent conservatives — and condemned as going against democracy and American history.

“There are also times in the Constitution where the word ‘Congress’ appears […] and this theory would be saying that the word ‘Congress,’ wherever it appears, means only Congress and not the president of the United States having any role in how laws are passed or the U.S. Supreme Court being able to review those laws or the US Constitution serving as guardrails,” Sozan explained in an analogy. “I think we would all say that it’s absurd that Congress would be able to just do whatever it wants to when it passes a law.”

Potential Implications

Sozan also provided some insight as to what would actually happen if the Supreme Court ruled in favor of the Republicans in this case.

“So from a big picture perspective, this could throw our system of free and fair elections and our democracy into chaos, because suddenly judges would not be allowed to review and throw out laws that were passed by a legislature that were anti-voter laws, that are unfair laws,” he said.  

Constitutional provisions that guarantee free and fair elections, for example, could be rendered meaningless. Governors could lose their right to veto or sign laws as part of the normal lawmaking process,” he continued. “Secretaries of state and other local and state election officials, who are often given discretion to help carry out election-related laws in a fair way, could be stripped of that authority.” 

Sozan also added that voting could become chaotic because there could be one set of rules for state-level races and a different set for federal races in elections where people vote for both, which they do in most elections.

“Imagine two different sets of rules regarding things like voting hours or voting locations, or whether drop boxes are allowed or whether people are properly registered,” he told Rogue Rocket. “That could throw our elections into chaos, and from a bigger picture, it can make people even less trustworthy of our elections. And that could also just reduce people’s wanting to be involved in our elections and our democracy.”

Arguably the biggest concern, however, is what partisan state legislators will do with all their unchecked power.

“We’ve seen over 20 states in the past two years, states that are controlled by Republican legislatures. We’ve seen these states pass voter suppression and election sabotage laws, almost always based on the big lie,” Sozan noted.

“Imagine all of those state legislatures being able to do what they did in the past couple of years, but on steroids, with no court to check them and no constitution to check them.” 

“They’re going to be able to pass whatever laws they want related to federal elections,” he continued. “They could decide to make it harder for people to vote. They could decide to make it much easier to draw unfair boundaries for congressional maps. And it could just really heighten extremism in our nation at a time where we really all need to be lowering the political temperature.” 

Oral Arguments Prompt (Some) Optimism

Despite the serious threats posed by the potential embrace of this theory, Sozan said that he is cautiously optimistic the high court will err on the side of reason following oral arguments earlier this month.

Specifically, Sozan said that the court’s three liberals made it clear that they opposed ISL theory. Three of the conservative justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — seemed very much in the camp of supporting ISL theory, but the other three conservatives were more on the fence.

“And that’s what gave me a little bit of optimism here, that hopefully, the court will not adopt this theory in all of its glory, in its full-fledged nature,” Sozan stated. “Maybe there can be a way that it’s adopted in a more narrow way that might circumscribe state courts and state constitutions in some way, but still protect state courts’ ability to get involved in cases and to apply state constitutions.” 

Sozan also noted that there are some checks and balances in place to counter ISL theory if the court does rule in favor of the North Carolina Republicans.

For example, if state courts get cut out of election rule-making, federal courts would still have jurisdiction to determine which laws are Constitutional. Those federal courts, however, would have to do way more litigation and likely get super backed up, slowing down the whole process.

Congress could also pass laws regarding federal elections, but, as Sozan noted, they are so gridlocked now it seems impossible they could approve sweeping elections legislation. 

Federal lawmakers might agree to smaller, piecemeal bills. Sozan noted that, currently, lawmakers are actually on the verge of passing changes to the Electoral Count Act — which outlines rules for how electors are chosen — to prevent a president from trying to overturn a valid election like Trump did.

The Supreme Court is expected to hand down its decision on Moore v. Harper in June of 2023.

See what others are saying: (The Brennan Center for Justice) (ProPublica) (CNN)

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Biden Announces Plan to End COVID Emergency in May

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The decision would drastically change the government’s long-standing pandemic response and shift Americans’ access to COVID-related services.


Emergency Declarations at an End

In a statement Monday, The White House announced that it would be ending the COVID national emergency and public health emergency declarations on May 11.

The move will entirely restructure the federal government’s response to the pandemic to treat it as endemic and upend policies that have been in place for the last three years. Although more than 500 people in the U.S. are still dying from COVID on average each day — which is around two times the number of daily deaths during a bad flu season — life has largely returned to normal.

Most Americans are vaccinated, and even President Joe Biden himself said the pandemic was “over” back in September. The new announcement comes in part as a response to resolutions Republicans brought to the House floor last week that would end the declarations immediately.

“An abrupt end to the emergency declarations would create wide-ranging chaos and uncertainty throughout the health care system — for states, for hospitals and doctors’ offices, and, most importantly, for tens of millions of Americans,” the White House argued.

Lapses in Coverage and Care

Federal officials decided that a phase-out would make more sense because the U.S. has come to rely on several systems and benefits under the emergencies.

One of the most significant changes that will have the biggest impact on Americans in their day-to-day lives is access to COVID tests, treatments, and vaccines that have been free throughout the pandemic.

Once the emergencies end, a very complex wave of changes will take place that differs from person to person depending on their insurance — or lack thereof — and even possibly what state they live in.

Currently, people with private health insurance or Medicare coverage have been allowed eight free COVID tests a month and insurers had to cover those tests, even if they were administered out of network.

Once the emergency ends, some Americans will have to pay out of pocket, as well as for antiviral COVID treatments like Paxlovid. 

Notably, it has been reported that vaccines will still be included for all those people covered by both private and public insurance. That, however, may not be the case for those without insurance — a group that is also more likely to be the most affected by rising costs for tests and treatments.

Jen Kates, a senior vice president at the Kaiser Family Foundation, told The Washington Post that when the emergency declarations end, states that opted to provide Medicaid coverage for tests, treatments, and shots will lose the federal funds that matched costs at 100%.

“To me, that’s the biggest issue for the general public to think about,” she said. “The uninsured and underinsured have no guaranteed access to covid vaccines, tests or treatments.”

When it comes to vaccines, those costs could be significant. Moderna and Pfizer have both said they might charge as much as $130 per dose of vaccine once the federal government stops paying and the shots are transitioned to the private market. That figure is nearly quadruple what federal offices have paid for the doses.

The shift to the private market could happen fairly soon, especially because Republicans have refused Biden’s request that they put billions of dollars towards additional free COVID testing and shots to extend those efforts.

There could also be a spike in the number of uninsured or underinsured Americans because the $1.7 trillion spending bill passed last year ends a rule that banned states from kicking people off Medicaid, leaving millions at risk of losing coverage.

Other Possible Outcomes

Ending the declarations could also set up a battle around immigration because the Biden administration has said the move will bring an end to Title 42 — the Trump-era public health measure that placed restrictions on border crossings and other migrant policies.

Biden has previously tried to cut the program, but the Supreme Court kept it in place. House Republicans rejected the White House’s claim that the program would be terminated, arguing it is not tied to the public health emergency.

Beyond that, the termination of the declarations would require health providers to make numerous adjustments because many of the flexibilities they were allowed in a number of areas would be cut. 

As a result, the administration says a phase-out of those policies over the next few months is necessary, arguing that hospitals and nursing homes “will be plunged into chaos” if they are cut immediately. House Republicans, however, are insistent on moving forward their legislation that would do just that, though the Democratic-controlled Senate could block their proposals.

See what others are saying: (The New York Times) (The Washington Post) (The Associated Press)

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Conservatives are Mad at “Woke” Xbox for Minor Climate-Related Updates

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The fury comes after Xbox announced it was slightly altering existing consoles to better utilize and save energy.


Same War, New Battlefield

Mere days after M&M canceled their “spokescandies” due to backlash from the right, led largely by Fox News’ Tucker Carlson, conservatives have found a new front for their ongoing culture war: Xbox.

Carlson spent months complaining that small character redesigns were “woke” because they made the animated anthropomorphized M&M’s — in his own words — “less sexy.” His campaign finally proved successful on Monday when the company announced it would be doing away with the spokescandies and replacing them with actress Maya Rudolph.

Conservatives, now facing a sudden dearth of non-issues to complain about, quickly found a new issue to rage against. Xbox announced in a blog post earlier this month that it is making minor updates to lower its environmental impact as part of an effort to reach Microsoft’s goal of being carbon-negative by 2030.

Now, instead of having an Xbox wake up to update games, apps, and software during random times of the night, it will do that at a time of night when a user’s local energy grid is generating the most power it can from renewable sources. 

Xbox also said it would automatically update some older consoles to a power-saving mode that aims to reduce electricity consumption when it is turned off — a feature that is already the default on newer consoles.

According to The Verge, the only difference for users is that an Xbox in power-saving mode takes around 15 seconds to boot up instead of doing so immediately as the console does in “sleep” mode. The change is a small price to pay for what the outlet described as “significant” energy savings.

Xbox Under Fire

To many leading conservative voices, the minimal shifts were just another example of “woke” culture. 

While discussing M&M’s spokescandies Tuesday morning, “Fox and Friends” co-host Ainsley Earhardt brought up Xbox’s new changes with Fox radio host Jimmy Failla.

“So Xbox has also announced that they’re going woke too, you know, because of climate change,” Earhardt said.

“I mean, it’s crazy what they’re doing, but we understand what this is. It’s not that it’s actually going to offset emissions, okay — the level of reduction is infinitesimal,”  Failla claimed, without evidence. “But they’re trying to recruit your kids into climate politics at an earlier age; make them climate conscious now.”

“Yeah, I didn’t think of that — you’re right, they’re going after the children,” Earhardt agreed, despite the fact that internal data from Microsoft shows just around 10% of Xbox owners are under the age of 18.

Other prominent conservatives also did their part to bait Americans into anger on social media, including America’s Foundation, which posted a tweet stating that “the woke brigade is after video games.”

The post linked an article from the right-wing website TheBlaze, which asserted that “Xbox will force gamers to power down to fight climate change.”  That, however, is false — Xbox has said users can switch back and change the settings any time they want

Still, top lawmakers continued to share the article and spread its false claims, including Sen. Ted Cruz (R-Tx.).

“First gas stoves, then your coffee, now they’re gunning for your Xbox,” he wrote in the post, which was flagged by Twitter and given an “added context” warning.

The same warning, however, was not placed in a very similar post by Rep. Troy Nehls (R-Tx.), who also shared the article.

“They want to take your guns. They want to take your gas stoves. And now they want to take your Xbox. What’s next?” he wrote.

See what others are saying: (The Washington Post) (The Daily Beast) (VICE)

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Washington State Launches Investigation Into Abuse at Private Special Ed. Schools

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Allegations include staff kicking a fourth-grader and dragging a child with autism around by his leg.


Abuse Allegations

Washington State’s Office of Superintendent of Public Instruction (OSPI) has launched an investigation into a system of private schools for kids with disabilities after ProPublica and the Seattle Times reported on allegations of abuse.

The series of articles focused on Northwest School of Innovative Learning (NWSOIL). NWSOIL is a set of private schools that serve 500 Washington public school students with serious disabilities. ProPublica and the Seattle Times found years of complaints from parents and school districts against NWSOIL alleging abuse, overuse of isolation rooms, and unqualified aides teaching instead of certified professionals.

One district claimed NWSOIL staff kicked a fourth-grader. Another alleged that a child with autism was dragged around by his thigh.

Many former NWSOIL employees also claim that they were pressured by their parent company to to enroll more students and skimp on basic resources, like staffing.

Investigation Launched

In a seven-page letter, OSPI reminded NWSOIL of its authority to revoke or suspend a school’s approval, meaning that it could shut NWSOIL down. 

“Given the serious nature of the allegations made in the articles, OSPI is examining what, if any, actions need to be taken with respect to Northwest SOIL’s approval to contract with Washington school districts,” Tania May, assistant superintendent for special education at OSPI, wrote in the letter.

OSPI has demanded any records of mistreatment, maltreatment, abuse, or neglect as well as documents pertaining to restraint or isolation of students and calls to the police. They are also seeking information about the student-to-teacher ratio and staff qualifications. 

In the letter, OSPI claims that all of this was previously unknown to them as well as to police, Child Protective Services, and local school districts. They are asking NWSOIL for an explanation as to why the allegations were not reported. 

NWSOIL defended itself in a public statement.

“Use of restraints and seclusion are always used as a last response when a student is at imminent risk of hurting themselves or others, it said. “We strongly deny any allegation that we understaff and/or pressure staff to increase admissions in order to maximize profits.” 

Washington state representatives are considering a reform bill that will give them more oversight on the publicly funded system of private special education schools. 

In this legislation, OSPI and at least one district that sends students to this program would be required to visit before approving the contract. It would also standardize district agreements with programs like NWSOIL, including financial safeguards to make sure funds are being used appropriately.

See the full series: (ProPublica) (The Seattle Times)

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