Reid Wilson for Pluribus News.

The Supreme Court has decided Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd., recognizing Congress has constitutional prerogatives to govern and structure the federal government as it sees fit. The case will no doubt mostly be discussed as an obscure case that put an end to the long conservative attack on the constitutionality of the Consumer Financial Protection Board. But it should also be acknowledged as a pro-democracy case–and those are few and far between these days. This Court is arrogant in its assertion of judicial supremacy, and when it comes to Congress, it routinely minimizes that branch’s constitutional powers. This impacts democracy because as Congress lays mired in gridlock, the administrative state is the main place governance is occurring. This decision upholds Congress’s power to financially insulate administrative agencies from Congress’s dysfunction. To be sure, it is doctrinally limited and will not put a stop to other developments likely to undercut congressional flexibility to structure agencies. Nevertheless, it should be recognized as an important separation of powers decision that appears to acknowledge Congress as a co-equal branch of government.

New Common Ground Democracy column, with this subtitle: “Until electoral reform occurs, the best way to protect democracy is for a bipartisan coalition to join together in a campaign against a would-be autocrat.” The reference to “traditional” Republicans is to this recent Washington Post opinion piece, which (while well-intentioned) fails to recognize that it will be impossible for the non-MAGA wing of the GOP to resuscitate itself without electoral reform according to Common Ground Democracy (in technical terms, Condorcet-based) principles.

As I noted earlier on this blog, the Court was faced with a procedural mess (I called it a “train wreck”) in the LA redistricting case. Two different federal courts had issued two decisions which left LA with no valid congressional map in place. The first federal court said LA’s original map violated the Voting Rights Act; the second federal court said the new map LA enacted to remedy the VRA violation itself violated the Constitution.

Today, the Court stayed that second decision. The effect of that stay is the state’s remedial map — which creates 2 VRA districts rather than just the 1 the state had created initially — will be the map LA uses this fall.

The stay application apparently got tangled up with Purcell issues, but the Court didn’t have to say anything about Purcell even if it were going to issue the stay. The Court was up against some tight deadlines regardless of any issue about Purcell. It basically had two options:

1. The Secretary of State represented very forcefully to the Court that she had to know which map was in place by today, in order to meet the series of deadlines the state’s election laws rolled out from here on in. If the Court accepted those representations, then the case for issuing a stay was strong.
2. The other side disputed whether May 15th was such a firm deadline. If the Court thought there was a bit more play in the joints, then it did not have to issue the stay today. The Court could have given a couple more weeks for the next stage of the remedial process to play out (the lower court had stated it would have a remedial map in place by June 4th). Justice Jackson’s dissent disagreed that the May 15th deadline was so important, but didn’t explain why; she simply noted that the lower court had disagreed with the Secretary of State’s representation.

The majority could have said we aren’t in a position to second guess the Secretary of State’s representation that May 15th is a firm deadline by which a map must be in place in order to meet the rest of the election deadlines under the state’s laws. Because we accept that representation, we issue the stay. That would not require invoking Purcell or deciding how it ought to apply in this procedurally messy situation. Since I would imagine the Secretary of State’s representation did play a major role in the Court’s stay decision, the Court could have justified the stay, if it accepted the SOS’s representation, without bringing Purcell into the picture.

Order. Early coverage in the Times, the Post, and Reuters. I’m sure others will want to comment on this complicated case. I note here only that under my self-districting proposal, these messy issues would be entirely avoided.

I’ve posted on SSRN this paper, to be published in the Florida Law Review. Here’s the abstract:

The Madisonian political philosophy upon which the U.S. Constitution rests did not supply the nation with a well-developed theory of electoral procedures. Instead, Madisonian philosophy concentrated on the separation of powers and other elements of constitutional architecture, including federalism, in order to prevent factions from subverting the common good. Subsequent history has demonstrated that Madisonian constitutional architecture, while necessary, is not sufficient for democratic government to operate in the interest of the people as a whole rather than on behalf of a faction and its own interests. Instead, it is necessary to supplement Madisonian constitutional architecture with a well-designed electoral system that accords with Madisonian values.

Maximum Convergence Voting, a method of electing a single winner when there are more than two candidates, is the method that most accords with Madisonian principles underlying the Constitution. Derived from the work of the Marquis de Condorcet, a French contemporary of Madison (and the Constitution’s other Framers), whose electoral theories Madison would have admired if he had studied them, Maximum Convergence Voting is the method that most avoids the election of a factional candidate and instead elects the candidate who achieves the greatest common ground among all the voters in the electorate. This essay describes how Maximum Convergence Voting operates, how it can take several different forms—including a Top-Three electoral system that is a variation of California’s existing Top-Two system (and Alaska’s existing Top-Four system)—and how it also can be used for presidential elections.

This paper, like my other recent work on electoral system design, is a preliminary sketch of ideas I am pursuing in a book on this topic. Comments, both on this specific paper and on the topic in general, are very welcome.

AP News: The Georgia Supreme Court refused to issue a ruling, leaving the legality of Cobb County Commissioners’ electoral districts uncertain. The County is Georgia’s third-largest. While the Court agreed “that someone needs to issue a legally final ruling on whether county commissioners can override state legislators and draw their own electoral districts,” and one Justice urged the commissioners themselves to file for a declaration, a unanimous Court held that the “it would be improper to rule on the legal issue” where the plaintiffs lacked standing.

The stay applications before the Supreme Court this week on Louisiana’s congressional map represent the biggest procedural quagmire in a Voting Rights Act I can recall seeing:

1. One federal court held that Louisiana’s newly enacted map, after the 2020 Census, violated the VRA.

2. When LA then then enacted a remedial map, a different federal court held the remedial map violated the Constitution. So right now, LA has no valid map for this year’s congressional elections.

3. But on top of this, LA’s Secretary of State has told the Court she has to have a map in place by May 15th — Wednesday — to meet critical election deadlines that start rolling out.

The stay issues will be fully briefed before the Court this am. LA asks the Court to stay the second federal court decision, let it use a map this fall which that lower court has has held unconstitutional, but also hear the case on the merits down the road.

4. On the merits, if the Court agrees to hear the case this fall, the case presents the tension between the use of race in redistricting that the VRA might require and the constitutional constraints that also apply to the use of race in redistricting (particularly when a State is creating a remedial map after a judicial finding that the VRA requires a remedy). This is the search for what Chief Justice Roberts called, in the case I argued on these issues from Alabama, “the sweet spot” on the use of race in redistricting.

Update: Now that the opposing briefs have been filed, I can report that the respondents take issue with the Secretary of State’s assertion that a map must be in place by May 15th. They also argue that remedial proceedings are currently going on before the second federal court, which has committed to adopting a remedial map by June 4th.