The “clean up” orders list is out and it is bad news from this activist radical Republican Supreme Court.

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The Court has granted cert in MOORE v. HARPER (21-1271), the redistricting case from North Carolina in which the Court denied an application for stay earlier this year pending the filing and disposition of a petition for a writ of certiorari.

This is the case which presents insurrectionist Coup Plotter Lawyer John Eastman’s “Independent State Legislature” theory, which would allow a state legislature to nullify the will of the voters by popular vote in a fair and free election, and to select their own set of presidential electors.

At least four of the current justices (Thomas, Alito, Gorsuch and Kavanagh) have expressed support for this bogus theory (which first appeared in Bush v. Gore). Justice Kavanagh wrote earlier this year:

I agree with Justice Alito that the underlying Elections Clause question raised in the emergency application is important, and that both sides have advanced serious arguments on the merits. The issue is almost certain to keep arising until the Court definitively resolves it. Therefore, if the Court receives petitions for certiorari raising the issue, I believe that the Court should grant certiorari in an appropriate case—either in this case from North Carolina or in a similar case from another State. If the Court does so, the Court can carefully consider and decide the issue next Term after full briefing and oral argument.

Make no mistake, the six radical Republican Justice on the Court, three of whom were appointed by Donald Trump, just signaled to Donald Trump and his supporters that the Court is going to put its impramatur of approval on this bogus “Independent State Legislature” theory next year to allow Republicans to steal the 2024 election with the Court’s assistance.

We are in a code red emergency for our democracy in this ongoing slow-motion insurrection by anti-democracy Republicans.

Election Law expert Rick Hasen explains, Breaking and Analysis: Supreme Court Will Hear Moore v. Harper, the Independent State Legislature Theory Case from North Carolina; This Case Could Severely Curtail the Ability of State Courts to Protect Voting Rights and Stop Partisan Gerrymandering:

The Supreme Court today just agreed to hear Moore v. Harper, an “independent state legislature” theory case from North Carolina. This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights in federal elections. It also could provide the path for election subversion.

The issue presented in this case has been a recurring one in recent years. Two parts of the Constitution, Article I, Section 4 as to congressional elections and Article II as to presidential elections give state “legislatures” the power to set certain rules (in the Art. I, section 4 context, subject to congressional override). The Supreme Court has long understood the use of the term legislature here to broadly encompass a state’s legislative process, such as the need for a governor’s signature on legislative action (or veto override) about congressional elections. See Smiley v. Holm. As recently as 2015, the Supreme Court held that the voters in Arizona could use the initiative process to create an independent redistricting commission to draw congressional districts even when the state legislature objected. See Arizona Independent Redistricting Commission v. Arizona Legislature.

But that latter case was 5-4 with a strong dissent by Chief Justice Roberts, who believed the legislature could not be cut out of the process. Most of the Justices in the majority in that case are now off the Court.

There’s a more radical version of the idea that the Legislature has power, standing on its own as a body and not part of the general structure of state government, in the independent state legislature theory.

Take the facts of the Moore case. The North Carolina Supreme Court, interpreting a provision of the state constitution protecting the right to vote, held that partisan gerrymandering violated the state constitution and required drawing fairer lines, including in Congressional districts. That state court is majority-Democrat and the NC General Assembly is majority Republican. The Republican legislature argued that this holding usurped its sole and plenary power [the term John Eastman uses] to choose the manner for drawing congressional districts.

Pause on that for a moment: the theory in its extreme is that the state constitution as interpreted by the state supreme court is not a limit on legislative power. This extreme position would essentially neuter the development of any laws protecting voters more broadly than the federal constitution based on voting rights provisions in state constitutions.

And this theory might not just restrain state supreme courts: it can also potentially restrain state and local agencies and governors implementing rules for running elections.

And this kind of argument shows how the ISL theory, if taken to its extreme, could help foment election subversion. How so? Suppose a state agency interprets state rules to allow for the counting of certain ballots, and doing so favors one candidate. If the leaders of the legislature are from the other party, and they say that the interpretation does not follow the views of the legislature, it’s impermissible and the results need to flip.

Now there may be many responses to such arguments, including arguments like laches—you can’t start raising these arguments after an election when things don’t go your way.

This was in fact the theory that Trump allies tried to raise after the PA Supreme Court extended the time to receive absentee ballots in the 2020 elections because of covid, relying on voter protective provisions in the State constitution. Trump allies argued this usurped the power of the state legislature to set deadlines, and Justice Alito at the time (Circuit Justice for the Third Circuit) put the counting of such ballots on hold. There were about 10,000 such ballots, far fewer than the 80,000 vote victory of Biden in the state. But if it had been closer, a radical reading of ISL could have led to a flipping of results.

Now may be more limited ways of reading the ISL theory, such as to apply only when a state court or agency decision very strongly deviates from legislative language about how to run federal elections.

There are also strong originalist arguments that might persuade some of the Justices not to adopt such a radical reading of these constitutional provisions.

But buckle up! An extreme decision here could fundamentally alter the balance of power in setting election rules in the states and provide a path for great mischief.

It is more important than ever that the Department of Justice prosecute the Coup Plotters responsible for the insurrection on  January 6, 2021. And Congress needs to rein in this activist radical Republican Supreme Court which is completely out of control.




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