Daily Archives: October 17, 2022

Byron WilliamsWinston-Salem Journal

Prior to becoming president, Gerald Ford defined the impeachment criteria of high crimes and misdemeanors as whatever a majority of the House of Representatives considers them to be at a moment in history. One might offer a similar critique of the independent state legislature theory (ISL).

In the upcoming Supreme Court case of Moore v. Harper, the court will decide whether ISL is merely a fringe theory or a doctrine of constitutional law. ISL offers that a state legislatures plans for new congressional districts cannot be overridden by a state supreme courts interpretations of its states own constitution, including any provisions limiting partisan gerrymandering.

The U.S. Constitution in Articles I and II refers to state legislatures as having a role in federal elections. The Republican-led state legislature in North Carolina, based on being the party in the majority at the time of the census, drew congressional lines that favored the Republican Party a long-held shared practice by the party in the majority at the time of the census.

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The N.C. Supreme Court invalidated those districts, saying excessive partisan gerrymandering was in tension with the state constitution.

The court opined: In every single one of the 52 elections decided within a 6-point margin, the Enacted Plans give Republicans an outright majority in the states congressional delegation, state houses, and the state senate. This is true when Democrats win statewide by clear margins.

The N.C. legislature is bringing the case before the Supreme Court. Invoking ISL, it argues that the state legislature, and only the state legislature, when regulating federal elections, including the presidency, is free from complying with the state constitution, state courts, a governors veto or the people who elected them. It is a peculiar interpretation of the U.S. Constitution that grants legislative fiat when deciding the rules for federal elections.

ISL contends that when the U.S. Constitution refers to the legislatures of the states, that means the elected legislature in isolation possess plenary authority to act. This is a far-fetched theory that belies the fundamental understanding of checks and balances and separation of powers.

Article 1, Section 1 of the U.S. Constitution reads:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Does anyone possessing elementary civic knowledge believe the aforementioned power granted to the legislative branch does not require a signature from the executive branch to become law or judicial review? ISL would be a broad and disruptive insertion into the nations constitutional inheritance that forgoes intellectual heft in lieu of brazen political gain.

The Supreme Court has rejected this argument in four prior cases, but what will it decide in the post-Roberts court? Normally the court is named after the chief justice, i.e., the Burger court, the Rehnquist court, etc. But in the aftermath of overturning Roe v. Wade, Chief Justice John Roberts appears to have lost the court to five uber-conservative justices who are less concerned with the institution than with enacting a judicial philosophy that appears uncomfortably close to the political agenda of the Republican Party.

In the 2019 case Rucho v. Common Cause, the Supreme Court decided in a 5-4 decision that partisan gerrymandering claims cannot be decided in federal court; they are a matter for the states. The N.C. Supreme Court has decided and now the Supreme Court will take up the matter to rule on the legitimacy of ISL.

One never knows how the court will rule, but Moore v. Harper possesses the heavy after-taste of Bush v. Gore, the 2000 Supreme Court ruling that in effect decided a presidency. The questions to be brought before the court: Who runs U.S. elections and who sets U.S. election law, and does the Constitution allow state legislatures to act alone?

If the court holds for the N.C. legislature, it would create a plethora of unintended consequences around the nature of federalism and the adoption of new methods such as rank choice voting while granting state legislatures more leeway to preemptively choose electors for the Electoral College that could conceivably ignore the will of the voters.

Will the post-Roberts court add ISL to the canon of constitutional law? If so, it could conceivably open a new chapter in American democracy thats not pursuant to a more perfect union.

The Rev. Byron Williams (byron@publicmorality.org), a writer and the host of The Public Morality on WSNC 90.5, lives in Winston-Salem.

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Byron Williams: The court is poised to rewrite federalism - Winston-Salem Journal

More than one yearafter the Myanmar military staged an attempted coup d'tat, democracy defenders both inside and outside of Myanmar remain committed to restoring legitimately elected leaders and returning the country to the path to federalism. In partnership with the National Unity Government (NUG) and the Myanmar Campaign Network (MCN), International IDEA co-hosted the Myanmar Roadmap to Federal Democracy Forum in Canberra on 29 September 2022, featuring a panel discussion that provided critical insights into the constitutional illegitimacy of the military juntas regime, political challenges ahead and the opportunities for federal democracy.

Setting the scene since the events of 1 February 2021, Tun Aung Shwe, the NUG Representative to Australia, reiterated the commitment of Myanmars democratic movement, highlighting that the countrys ethnic minority groups are united in their struggle to establish a free and democratic federal system of governance. Speaking positively of the resistance movement, he pointed to the parallel systems of healthcare, judiciaryand other public services that the NUG is operating outside of the militarys rule.

Pointing to the militarys ongoing brutality, he said that the regimes actions have unified previously disparate groups, telling the audience, The social cohesion landscape is changing in the right direction, and noted that different views, such as on the management of natural resources, are being collaboratively discussed.

Moving to the panel discussion, International IDEAs Head of Myanmar Programme, Marcus Brand, NUG Union Minister of Federal Affairs Lian Hmung Sakhong and NUG Union Minister of Justice Thein Oospoke about the unconstitutionality of the coup itself, what the democracy movement needs from the international community, and how the NUG is administering a government from exile.

Summarizing the militarys public justifications for the coup, Marcus Brand said it was their own narrative that what they were doing was the implementation of a state of emergency provision of the 2008 Constitution.

But it is very important to understand that even the 2008 Constitution, which had originally been drafted by the military that constitution did not give the military a carte blanche to take over at will. That is how the military has been presenting this, but the one feature that they missed when they put together the 2008 Constitution was that they did not expect that there would be an elected president in place who would refuse to sign on to a state of emergency and hand over power to the military, he said, adding that they decided to jump over that by detaining senior elected members of parliament.

Speaking to the current situation in Myanmar, Lian Hmung Sakhong described brutal crackdowns on peaceful protests, and said the resistance movement, which comprises of multiple groups, have come together in pursuit of the Federal Democracy Charter (FDC).

The Charter has five guiding principles and 64 federal principles this is what ethnic groups are proposing and demanding. We agreed to these [FDC] principles in three weeksthat is the difference between us and the military. We the people are united and willing to establish our country base on those principles, he said.

Acknowledging the need for meaningful transitional justice, Thein Oo said the NUGs plan includes a focus on training new legal practitioners and ensuring the rule of law is evenly applied.

Our new justice system will be built within a federal system that ensures the rule of law applies to everyone, no matter who they are or where they live, he said, adding that 35 townships are living in the NUG administrative system.

Further, he called on the international community to fully, and officially, recognize the NUG.

One of our strategies for this year is to get international recognition as the government of Myanmar. The NUG needs to be able to speak formally within the UN system and have access to other governments, he said.

Digging into the specifics of the Federal Democracy Charter, Marcus Brand explained it is not to be seen as an interim constitution at this point.

I see it more as a framework than a legal, enforceable interim constitution. That is because of the fluidity of building this democratic coalitionit needs principles and guidance where hard, legally enforceable rules might be counterproductive. It rejects the validity of the 2008 Constitution, but it does not seek to fully replace it yet, because the situation on the ground is very much in fluxit is very diverse.

Instead, it clearly lays down the basic principles and structure for the new federal system that will be built. We are looking at a bottom-up system that sees the constituent unitsthe member states and territories, and the people living in them, as the original owners of sovereignty. There is a commitment to self-determination, but not just defined in ethnic terms but in more in terms of democratic citizenship, he said.

Click hereto learn more about International IDEAs Myanmar programme.

Click hereto view IDEAs analysis of the Federal Democracy Charter.

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A Myanmar roadmap: Charting the path to federal democracy - International IDEA

The Official Language Committees report on the use of Hindi in the country, and the response it has evoked, shows that there are further tensions at play in the follow-up to the 2024 general elections, with the pressing issue of representation coming to the forefront.

The latest report of the Committee of Parliament on Official Language has recommended that use of Hindibe further adopted across the country, it must be the primary method of communication in government offices, the UN, and all central institutes of higher education, among others. Although this report is meant to be submitted once every five years, the committee has submitted two reports in the lastthree years, revealing the governments priorities.

Also Read:Foolish pursuit of Hindi dominance

Leaders from non-Hindi-speaking states were critical of the report, and questioned its motives. Critics allege that the 100+ recommendations in the report undermine Indias federal structure and linguistic diversity by forcibly imposing Hindi onto a country where the majority of people do not speak Hindi.

This is not a new debate. Right from independence, tussles over the use of Hindi or English as Indias official language have manifested in Parliament, and played out on the streets.

In 1965, violent anti-Hindi protests broke out in Tamil Nadu, after which the Union agreed to use both Hindi and English for official use indefinitely. The importance of English in bridging the gap between North and South India has been debated extensively and will continue in subsequent years. Leaving the merits and demerits of this proposal aside, the response from political parties reflects another issue that will be at the forefront of Indian politics in the 2024 general elections, all the way till 2031: the delimitation of new parliamentary constituencies.

The electoral system mandates that seats are allocated to states based on the principle ofproportionality, with constituencies of similar populations across the country. In turn, stateswith higher populations will have more constituencies than those with lower ones. Currently,Uttar Pradesh, the most populous state, has 80 seats in the Lok Sabha, while Tamil Nadu has39. However, these figures have been allocated based on the 1971 census.

A report by Milan Vaishnav shows, four north Indian states (Bihar, Madhya Pradesh, Rajasthan, and Uttar Pradesh) would collectively gain 22 seats, while four southern states (Andhra Pradesh, Kerala, Telangana, and Tamil Nadu) would lose 17 seats, assuming that the number of seats in Parliament remains at 545. Proposals for what the future of the Indian Parliament would look like are unclear, for now. Nonetheless, tensions between the North and South will come to a head in 2024, 2026, and finally in 2031.

Also Read:Stop poking at us with Hindi rod

The Souths importance in shaping the countrys economy is evident. It is more developed than the North but receives less funding from the Union. Once delimitation occurs, its share of funding from the Finance Commission will shrink even further, given population changes, straining relations between the North and South. Southern states have already alleged that the Union does not providethem with adequate funding, GST revenues, and more.

The 15th Finance Commission, which was constituted in 2018, used the 2011 census to allocate funding to states. Despite attempts not to penalise states like Tamil Nadu for implementing successful family planning policies, Southern states concerns about skewed financial resources, and bias in allocation were not alleviated. Such instances of skewed federalism have undermined Union-state relations, and will continue to do so.

While the warmup to 2024 has begun with the Congress Bharat Jodo Yatra, the BJPs internal reorganisation efforts, and efforts by the Mahaghatbandhan in Bihar to unite opposition leaders, an integral issue for the 2024 elections will be the role of non-Hindi states in the Union, and how to bridge the gap between the North and South. Based on the governments determination to accelerate the use of Hindi, and non-Hindi speaking states response, tensions will be fraught ahead of 2024, and subsequently, until 2031. These questions must be resolved soon with the future of Indias representative democracy and state funding hanging in the balance.

(The writer is a student of History & Anthropology at Stanford University)

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Why Hindi may set the tone for 2024 - Deccan Herald