First, Tom Bogionni summarizes a longer piece by Supreme Court reporters Dahlia Lithwick and Mark Joseph Stern in a cloumn for Slate, Clarence and Ginni Thomas are telegraphing the roadmap for stealing the 2024 election: legal experts:
Dahlia Lithwick and Mark Joseph Stern make the case that Supreme Court Justice Clarence Thomas and his conservative gadfly wife Ginni are laying out a roadmap for Republicans to successfully steal the 2024 presidential election after Donald Trump failed to do so in 2020.
Noting that there appears to be no appetite by the House Select Committee looking into the Capitol insurrection to call Ginni Thomas in to talk about her efforts to get election officials in Arizona to defy the will of the voters, the two analysts claim this will embolden conservatives by providing them with a path to future election interference.
Writing, “there is seemingly nothing to be done about Justice Clarence Thomas’ refusal to recuse in cases that materially affect his spouse, even as he has already decided several matters surrounding the 2020 election … and also because that same spouse had written far more inflammatory, QAnon-style texts to Trump’s chief of staff urging him to set aside the 2020 contest, and nothing was done about that either,” they added, “What’s past is prologue, and what was done sloppily in 2020 is being mapped out by experts for 2024.”
Calling the texts and emails about the 2020 election of Ginni Thomas “demented,” the two analysts said they nonetheless should be looked at as “a warning and road map for what is already being put into place for the next presidential contest. But next time, the lawyers won’t be sweating brown makeup or referencing crackpot theories of Italian election meddling.”
Stating that the Ginni Thomas’s Arizona emails contained a “prefabbed piece of legal advocacy,’ they added that her husband has echoed the theory previously “as a matter of constitutional law,” with Lithwick and Stern writing, “It didn’t work in 2020 because the legal and political structures to support it weren’t in place at the time. Those pieces are being put into place as we type this.”
To make their point, they wrote: “Recall, for instance, that back in November of 2020, it wasn’t clear there were five votes at the Supreme Court to support the proposition that state legislatures could simply set aside election results they deemed tainted by impropriety. Recall that when lawyer/insurrectionists John Eastman (a Thomas clerk) and Jeffrey Bossert Clark floated that notion at the White House and elsewhere, serious DOJ attorneys told them in no uncertain terms to go away. Recall finally that one of the lawmakers in Arizona, Shawnna Bolick, is married to a state Supreme Court justice and is parent to Clarence Thomas’ godchild.”
Adding that Jane Mayer of the New Yorker previously reported that Bolick introduced legislation that “would enable a majority of the legislature to override the popular vote … and dictate the state’s electoral college votes itself,” the analysts wrote, “In other words, what Bolick couldn’t lawfully do in 2020 is a thing she hopes to do under color of law in future.”
Dahlwick and Stern went on to add that Bolick is not alone in her beliefs and that “election deniers around the country are running forsecretary of state and attorney general—vying to be swing states’ top election officer and top cop, respectively. If successful, they can use this power to aggressively investigate bogus claims of voter fraud, attempt to nullify Democratic ballots, refuse to certify the true results, and even try to approve an ‘alternative’ slate of electors for the loser.”
“The question remaining isn’t whether it’ll happen; the question is whether it’ll succeed,” they suggested.
The case which may serve as the vehicle for this anti-democratic election subversion is already before the U.S. Supreme Court.
Election law expert Rick Hasen reports, Supreme Court Poised to Decide within Weeks Whether to Take Up Case Raising “Independent State Legislature” Theory–with Potential Big Implications for 2024 Elections:
The Supreme Court is poised to decide before it breaks for the summer whether to hear Moore v. Harper, a case raising the question whether the North Carolina Supreme Court had the power to rein in the North Carolina General Assembly’s partisan gerrymander of the state’s congressional districts. Opponents of the lawsuit asked to delay filing their opposition until June 20, but the Supreme Court required that briefs be filed by May 20, and they have been. That gives enough time for the Court to decide before the expected end of the term in June or early July whether to hear the case next term. It’s a case with potentially enormous implications for the 2024 elections and beyond.
At issue is the viability of the “independent state legislature theory.” As I explained in this Slatepiece, when North Carolina Republicans sought emergency relief in the Supreme Court in this case, this suit “if successful would not only restore the state legislature’s ability to engage in partisan gerrymandering and perhaps tip control of Congress, but would radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections.” Further:
The Supreme Court accepting North Carolina’s argument would lead to some horrible consequences. First, it would neuter state courts’ abilities to rein in partisan gerrymandering, further undermining democratic representation. Second, the Supreme Court would be acting in a way that could tip control of Congress to Republicans.
But most importantly, siding with North Carolina could profoundly alter the balance of power between state courts and state legislatures. It could essentially neuter the ability of state courts to protect voters under provisions of state constitutions against infringement of their rights. This would apply not only to redistricting but to laws restricting registration and voting practices. It would allow hostile legislature to run roughshod over legislative rights. It could lead to major voter suppression policed by neither state courts nor federal courts, given the Supreme Court’s shrinking of the federal Voting Rights Act’s protections.
There are some good reasons for the Supreme Court not to take this case, not the least of which is that the state legislature seems to have empowered the state courts to review redistricting decisions, meaning there would be no violation of the legislature’s “power” even if such power exists.
But four Justices expressed interest in this theory when the Court denied a stay in this case, and former Judge Luttig believes the Court is going to have to resolve this issue sooner rather than later:
Only last month, in a case from North Carolina the Court declined to hear, Moore v. Harper, four Justices (Alito, Thomas, Gorsuch and Kavanaugh) said that the independent state legislature question is of exceptional importance to our national elections, the issue will continue to recur and the Court should decide the issue sooner rather than later before the next presidential election. This case involved congressional redistricting, but the independent state legislature doctrine is as applicable to redistricting as it is to presidential elections.
But there are dangers on the horizon in this case or another one. As I’ve written about Justice Alito’s dissent from a stay in this case:
If J. Kavanaugh ultimately goes along with the Alito reasoning, it will take only one more Justice to agree in order to overturn over two centuries of practice involving interpretation of state election law by state courts. Chief Justice Roberts’ dissent in the Arizona redistricting case from 2015 put him very much in sympathy with Alito’s position on the merits; he might demur for prudential reasons, but who knows? And Justice Amy Coney Barrett is a complete mystery, as she has not weighed in on this. I expect the major action is going to be building a strong record, based upon originalist style scholarship, that the independent state legislature theory, as currently understood, is contrary to the original understanding of the Constitution. There’s a strong case to be made, and it will be one of the first tests to see how serious Justice Barrett takes such historical arguments.
Further, as I wrote in the Harvard Law Review Forum, some of the more extreme forms of the doctrine could facilitate election subversion in 2024 with state legislatures appointing slates of electors that would negate the choices of voters for President. Keep your eye on this.
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