Note: A group photo with new Justice Ketanji Brown Jackson has not yet been published.
The 2022-23 Supreme Court term begins the first Monday in October. The most consequential case on the court’s docket is ostensibly a redistricting case from North Carolina, Moore v. Harper, but it is so much more than this.
The MAGA/QAnon Republican legislators of North Carolina are asking the Court to adopt the bogus “independent state legislature” doctrine formulated by Trump’s corrupt Coup Plot Memos lawyer John Eastman. They are asking the Court to give its impramatur of legality to this bogus “independent state legislature” doctrine, so that Republicans can reject the will of the voters in a fair and free election and to select their own slate of presidential electors in the anti-democratic Electoral College, one of the last remaining vestiges of the slavery compromises in the Constitution, and an archaic system which no other modern democracy in the world uses.
Heavily gerrymandered Republican state legislatures in North Carolina, Pennsylvania, Michigan and Wisconsin (all states with a Democratic governor) could declare that voters no longer will decide the electoral college delegates by an election, but the heavily gerrymandered Republican state legislature will select a slate of Republican electoral college delegates. The governor could not veto the legislature and, more importantly, the state supreme court could not review the legislature’s usurpation of the citizens’ right to vote for presidential electors for constitutionality. This bogus theory rejects both the separation of powers doctrine, and judicial review under Marbury v. Madison, bedrock principles of American democracy.
It would be the coup de grâce to American democracy, the final death blow that Trump’s attempted coup d’état tried to deliver on January 6, 2021. And it will have been accomplished by at least five, if not all six, unelected and unaccountable Republican Supreme Court Justices, without a single shot being fired. Let’s call it a Judicial Coup.
Abraham Lincoln warned in his Lyceum Address in 1838: “At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.”
While these MAGA/QAnon Republicans assert that this is a “states rights” issue (the immortal code words of Jim Crow segregation), in reality it would federalize presidential elections, because any new rule created out of whole cloth by this Republican-controled Supreme Court would certainly provide that this same Republican-controled Siupreme Court would be the final arbiter, in order to maintain a thin veneer of judicial review and separation of powers. In reality, it would simply be a Republican feedback loop in which an unelected and unaccountable Supreme Court sits as a modern-day version of the Star Chamber.
In an extraordinary move on Wednesday, the Conference of Chief Justices – the Chief Justices of all 50 state Supreme Courts, Democrats and Republicans alike – filed an amicus brief in Moore v. Harper, asking the Supreme Court to reject the bogus “independent state legislature” doctrine formulated by Trump’s corrupt Coup Plot Memos lawyer John Eastman.
In a rare move, the group of all 50 states' Supreme Court chief justices wrote to SCOTUS, urging them to shoot down the argument NC Republican lawmakers are making–that there should be no checks and balances for election laws–in their "Independent State Legislature" case #ncpol pic.twitter.com/jGlPRXEoB0
— Will Doran (@will_doran) September 7, 2022
Courthouse News Service reports, State judges offer rare input as high court tackles redistricting case:
Months after the Supreme Court agreed to review a theory that could upend judicial review of election laws, the state justices from the highest courts in all 50 states have taken the unusual step of reaching out to the court in opposition to the principle.
The Conference of Chief Justices — a leading national voice on the role of state courts — urged the Supreme Court in an amicus brief filed Tuesday to discount the theory advanced by Republican lawmakers in North Carolina that would block state court review of their new congressional map. Under the independent state legislature theory, the lawmakers led by Speaker Tim Moore contend that state courts cannot provide a check on the Legislature’s election laws.
Rather than support either party in the case, the conference specified that it would instead provide an unbiased analysis of why the justices should not adopt the controversial theory. Input from the conference is rare and highlights the serious nature of the case.
The brief is careful to say it doesn't support either party. But its first sentence (left photo) directly opposes the argument NC lawmakers made (right photo) about whether or not courts should be allowed to rule on redistricting maps, etc.
— Will Doran (@will_doran) September 7, 2022
“The Conference of Chief Justice’s brief is very important in this case because … the conference is deeply respected as sort of the authoritative voice on the interests of the state courts and the U.S. legal system because of their membership — which is current and former chief judges,” Tom Wolf, deputy director of the Brennan Center’s democracy program, said in a phone call. “They rarely file, so when they weigh in the very fact of weighing in is indicating their perception of a serious issue.”
The conference also provides a unique view on the issue before the court. The justices will be reviewing a ruling from a state Supreme Court. The high court normally allows state courts to have the final word on what state law is.
“The chief judges of the state courts are in many respects the closest equivalent that we will find to federal Supreme Court justices,” Wolf said. “So these are folks that are speaking, in large part, as the court’s peers. They have a unique perspective that’s really unrivaled and hard to replicate in any sort of legal dispute.”
North Carolina state lawmakers claim the Constitution’s Elections Clause grants the legislature priority in making the rules for federal elections and can only be checked by Congress. To support this argument, lawmakers cite the text of the Elections Clause — which states that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature.”
This is disingenuous by selective editing. What the Elections Clause actually says:
Section 4 Congress
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
“The text of the Constitution assigns to state legislatures alone the authority to regulate the times, places, and manner of congressional elections [Clearly it does not: Congress may at any time by Law make or alter such Regulations] — including the authority to draw congressional districts,” the North Carolina lawmakers wrote in their brief to the court. “Both the plain text and its drafting history demonstrate that this choice was deliberate.”
Moore says the state court’s review of the Legislature’s congressional map would interfere with the Legislature’s role prescribed by the Constitution. The North Carolina Supreme Court shot down the Legislature’s congressional map for partisan gerrymandering. In doing this, the lawmakers say the court, therefore, decreed that upcoming congressional elections would not be held in the manner prescribed by the legislature but instead prescribed by the state’s judicial branch. [Wrong! In conformity with the Constitution.]
For the conference, however, this view is not only an incorrect reading of the Constitution’s text but inconsistent with history and precedent. [True!]
“Neither the textual reference to the ‘Legislature,’ nor contemporary historical understandings and practices, nor the Framers’ intentions, nor structural norms, nor this Court’s precedent supports the view that the Elections Clause displaces the States’ power to authorize their state courts to review their legislature’s regulations of congressional elections for conformity with their state constitutions, and to issue appropriate remedies,” Carter Phillips, an attorney with Sidley Austin, wrote in the conference’s brief.
Breaking down the lawmakers’ argument, the conference said the question before the court is if the Elections Clause removes state courts from their traditional role in reviewing election laws under state constitutions. The conference contends it does not.
The Elections Clause does give state legislatures the authority to enact state laws governing federal elections and gives Congress the authority to override those laws, but it doesn’t interfere with the states’ authority to structure their governments, the brief claims. The conference said this includes the process for determining state laws — which involves judicial review by state courts.
“The States’ power to authorize state courts to interpret all state statutes definitively and to determine whether those statutes comply with state constitutions is neither a ‘power … delegated to the United States by the Constitution, nor [a power] prohibited to the States,’” the conference says. “Thus, the States’ power to structure their governments to include judicial review is also protected by the Tenth Amendment.”
While the text of the Elections Clause references the state’s “legislature,” the conference uses historical context to highlight that the framers did not intend for all other branches of government to be precluded.
“When the Framers intended to give unreviewable authority to a specific branch of government, they did so clearly,” the conference wrote.
But the framers did not only give power to state legislatures in the Elections Clause; they also gave power to Congress. The conference said no party is claiming that courts can not review Congress’ laws related to federal elections, so the same should be applied at the state level.
“All agree that the Elections Clause’s reference to ‘Congress’ does not preclude judicial review of Congress’s regulation of federal elections,” the conference wrote. “Thus, the reference to the state ‘Legislature’ likewise should not be read to preclude state judicial review of the laws enacted by state legislatures.”
The conference also disagrees with lawmakers’ claim that courts would be usurping the legislature’s lawmaking authority by reviewing election laws. Judicial review is a check on lawmaking, not actual lawmaking itself.
“State court adjudication, while a form of check on the legality of lawmaking, is not itself lawmaking,” the conference wrote. “It is the exercise of judicial power.”
After laying out their argument against the court adopting the independent state legislature theory, the conference stipulates that, if the justices still decide to do so, the court needs to be deferential to state courts.
“Even if this Court determines that the Elections Clause authorizes federal judicial review of state court decisions about state elections law, such review should be rare, highly deferential, and under a clear standard to avoid undue intrusion on the state courts’ prerogatives,” the conference wrote.
A number of other amicus briefs were submitted in the case this week aggressively pushing the court toward curbing state court power. Although the conference’s brief was not submitted in response to those appeals, it answers them all the same.
“What’s remarkable about many of the other briefs that came in last night … is they take a very aggressive posture towards state courts and state Supreme Courts in particular,” Wolf from the Brennan Center said. “And so, although this brief was filed at the same time and couldn’t possibly directly respond to those briefs, it actually lays out an evenhanded and very effective rejoinder to much of the argument leveled by the amici who are filling in support in North Carolina legislators.”
One amicus brief filed in support of the bogus “independent state legislature” doctrine formulated by Trump’s corrupt Coup Plot Memos lawyer John Eastman ws joined by our political hack attorney general Mark Brnovich aka “Nunchucks” (or is it numbnuts?) Dude, you lost your primary, why are you still kissing Trump’s ass? Looking to land your next job at some far-right think tank?
The Arizona Mirror reports, Brnovich joins 12 other GOP AGs in ‘independent state legislature’ case:
Arizona Attorney General Mark Brnovich joined 12 other Republican attorneys generalbacking North Carolina’s GOP-led legislature in a U.S. Supreme Court case that could drastically alter how federal elections are conducted, handing more power to state legislatures and blocking state courts from intervening.
The case, Moore v. Harper, will be heard by SCOTUS later this year and involves a fringe legal theory called the “independent state legislature theory.” Lawmakers in North Carolina used this theory in an attempt to dodge a state court ruling that struck down gerrymandered voting maps in a lawsuit filed by Common Cause North Carolina.
The “independent state legislature theory” asks that SCOTUS reverse legal precedents that allow courts to review if state lawmakers broke the law when creating election policies. If that happens, state courts could be disallowed from reviewing voting maps or deciding if voting hours should be extended.
Brnovich and others argue in their brief that “prescribing the times, places, and manner of federal elections is fundamentally a legislative role” set forth in the U.S. Constitution and that the courts have no role in elections — even overseeing the laws governing them. [I have told you that he is a horseshit lawyer.]
The legal theory also has ties to 2020 election denialism, as it was pushed by allies of former President Donald Trump to toss out election results in swing states. It would also set the pretext for states to refuse to certify election results and select their own slate of electors.
State bans on gerrymandering in states like Florida, Ohio and North Carolina could die, as could the Arizona Independent Redistricting Commission in Arizona. That panel, which voters created when they amended the state constitution in 2000, voted last week to file its own brief with the court opposing North Carolina’s position.
The filing by the attorneys general tries to stake out a position that redistricting panels like Arizona’s — which was upheld by the Supreme Court in a 2015 ruling — would still be legal even if courts have no oversight of election laws, as its creation was “legislative” in nature, thus protecting it from destruction by any ruling.
States like California and Michigan and other states which have constitutional provisions with the right to a secret ballot could also see those provisions wiped out by a ruling in favor of North Carolina Republicans, according to the Brennan Center for Justice.
“Nunchucks” should never work again as a lawyer, and should be disbarred for his multiple acts of abuse of power of his office and the politicization of the Attorney General’s office.