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A NOTE FROM FRED
On December 7, the Supreme Court will hear oral argument in Moore v. Harper, a case which could dramatically and dangerously rewrite American democracy.
In this case, a North Carolina redistricting plan that was rejected by the state’s Supreme Court is being defended by North Carolina legislators who claim the state Court’s decision violates the so-called “independent state legislature theory.”
Considered by many to be a radical, fringe theory, the independent state legislature claim is now before the Supreme Court and, if adopted, would prevent state courts from reviewing laws passed by state legislatures to redistrict congressional seats, or to establish voting rules or other laws applicable to federal elections.
This would eliminate the right of a state Supreme Court to review whether state laws dealing with federal elections comply with the state’s own constitution.
It is strange that the Supreme Court would even consider this case, given a decision just three years ago, when the Court spoke directly to this issue.
In Rucho v. Common Cause, the Court majority, including Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh, rejected a request to find a North Carolina redistricting plan to be an unconstitutional partisan gerrymander under the U.S. Constitution.
The Court majority pointedly noted that there were other remedies that could be pursued including state courts reviewing the actions taken by state legislatures.
The majority opinion written by Chief Justice Roberts stated: “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”
Given the radical path the Supreme Court majority has been taking, however, there are no guarantees that this Court will practice what it preached just a few years ago.
There has also been a widely stated misconception about the potential impact of a Court ruling – that if the independent state legislature theory is adopted by the Supreme Court, state legislatures will be given carte blanche to override the choice of voters in a presidential election.
This is not correct.
Under Article II of the Constitution, Congress is empowered to choose the “time” when presidential electors will be chosen. Federal law implementing the Article has established that electors are chosen on Election Day, the first Tuesday after the first Monday in November.
Furthermore, every state has delegated to the voters the power to choose the President by voting for the presidential electors of the candidate they choose. While a state legislature could take away this power prior to Election Day, it is politically unfeasible and would lead to a national firestorm. In any event, it is unrelated to the independent state legislature theory.
Once electors are chosen on Election Day, state legislatures do not have the authority to name their own presidential electors – apart from one loophole contained as part of the 19th-century Electoral Count Act.
Under that loophole, if a state legislature decides, for whatever reason, that voters have “failed” to make a choice on Election Day, the state legislature can name its own electors. This dangerous loophole was brought into sharp focus by former President Trump’s effort to overturn the 2020 election.
Congress, however, is well on its way to closing that loophole.
Legislation that closes the “failed choice” loophole and contains other reforms has passed the House and similar legislation was reported out of the Senate Rules Committee last month. The Senate legislation has strong bipartisan support – including 15 Republican sponsors – enough to overcome a filibuster. The bill is expected to be voted on by the full Senate in the upcoming lame-duck session.
If this legislation passes and the loophole is closed, state legislatures will have no authority to override the presidential choice of the voters.
Federal law, not state legislatures, will control here, regardless of how the Supreme Court decides the Moore case.
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SUPREME COURT: MOORE v. HARPER
Moore v. Harper is “the most important case for American democracy in the almost two and half centuries since America’s founding.” – Judge J. Michael Luttig
The Conservative Stalwart Challenging The Far-Right Legal Theory That Could Subvert American Democracy
The independent state legislature theory is “so radical that critics say it has the potential to end American democracy as we know it,” via The New Yorker.
The Conservative Judge Who Saved Democracy With A Twitter Thread, via MSNBC.
Moore v. Harper Parties Submit Briefs To Supreme Court, via Democracy Docket.
WATCH: The Independent State Legislature Theory Explained In Two Minutes, via Brennan Center for Justice.
JAN. 6 INSURRECTION
“Trump knew, from unassailable sources, that his election fraud claims were false. ... There is no defense that Donald Trump was duped or irrational. No President can defy the rule of law and act this way in a constitutional republic, period.” – Jan. 6th Committee Vice Chair Rep. Liz Cheney (R-WY)
The Jan. 6 Committee Has Done Its Job, But Its Impact Depends On Others, via National Public Radio.
The Jan. 6 Hearings Are Over. These 3 Things Must Happen Now, opinion from Amb. Norman Eisen (ret.), Danielle Brian, and E. Danya Perry, via The New York Times.
Are Jan. 6 Investigators Hot On The Trail Of “All The President’s People”?
“Whether or not Trump faces federal charges for his Jan. 6 conduct, the aggressive pursuit of all the President’s people, as with Watergate, will be crucial to society’s and history’s assessment of the outrageous offenses against democracy that took place after the 2020 election. The sooner it begins, the better,” opinion from Harry Litman, via Los Angeles Times.
TRUMPWATCH
Trump Signed Legal Documents That He Knew Included False Voter Fraud Numbers, Judge Says, via The Washington Post.
Trump Is Already Boosting Election Conspiracies Ahead Of Midterms, via Vice.
Trump Solicits Cash Right After Jan. 6 Committee Votes To Subpoena Him; Tells Supporters He’s Fighting For Their “Heritage”
“Trump, who has openly flirted with a another presidential run in 2024 but hasn’t yet formally registered a presidential campaign committee, is using his PACs to fund a variety of expenses, from staging rallies to paying staffers to covering legal bills,” via Insider.
Trump Hotels Charged Secret Service Exorbitant Rates, House Inquiry Finds, via The New York Times.
MAR-A-LAGO DOCS CASE
Supreme Court Rebuffs Trump In Mar-A-Lago Documents Fight, via Politico.
The Latest Mar-A-Lago Ruling Underscores The Frivolousness Of Trump’s Complaints, via The Washington Post editorial board.
In Documents Review, Special Master Tells Trump Team To Back Up Privilege Claims
Special Master Judge Raymond Dearie to Trump lawyers: “What’s the expression — ‘Where’s the beef?’ I need some beef,” via The New York Times.
Trump Employee Seen Moving Boxes On Mar-A-Lago Security Footage Identified As Former White House Employee, via CBS News.
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🚨 WARNING OF THE WEEK 🚨
Harrassment, Threats, And Big Money:
Pro-Trump Conspiracy Theorists Hound Election Officials Out Of Office
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MIDTERM$
“A Storm Of Campaign Spending”: See How Campaign Money Is Being Spent Ahead Of Midterms, via PBS NewsHour.
Outside Groups Have Already Spent A Midterm Record Of $1.3 Billion On 2022 Federal Elections, via Open Secrets.
Peter Thiel’s $30M Midterm Bet: The Billionaire Seeking To Disrupt America’s Democracy
“He’s not merely favoring one party over another, but is supporting candidates who deny the legitimacy of Joe Biden’s election as President and have, in their different ways, called for the pillars of the American establishment to be toppled entirely,” via The Guardian.
Races To Oversee Elections Draw An Avalanche Of Spending, via Associated Press.
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RESOURCE OF THE WEEK
⭐ How To Help People Vote In The 2022 Elections⭐
Here are ways you can help spread factual information about voting rights and resources ahead of the midterms.
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