Last week retired Judge Michael Luttig, considered a preeminent conservative judge and legal scholar, testified to the January 6 Committee that there is ‘No Basis’ in Constitution for Theories Espoused by Trump’s Attorney John Eastman:

Retired federal judge Michael Luttig, one of two witnesses testifying Thursday at the House select committee hearing on the Jan. 6 Capitol riot, told lawmakers there is no support in either the Constitution or the laws of the United States “to count alternative slates of electors.”

Advertisement

Luttig, a staunch conservative and and George H.W. Bush-appointed circuit judge, debunked the theory that Vice President Mike Pence had the power to recognize alternative electors.

Then-President Donald Trump had seized on the unorthodox proposal from conservative law professor John Eastman to have Pence turn back electors from seven states when he presided over Congress to certify the election results on Jan. 6. 2021.

“There was no basis in the Constitution or the laws of the United States at all for the theories espoused by Mr. Eastman. None.”

“Had the Vice President of the United States obeyed the President of the United States, America would immediately have been plunged into what would have been tantamount to a revolution within a paralyzing constitutional crisis,” Luttig added.

Now the radical Republican U.S. Supreme Court is poised to take up a case asserting the baseless “Independent State Legislature doctrine” and give life to it. Justices seem poised to hear elections case pressed by GOP:

The Supreme Court seems poised to take on a new elections case being pressed by Republicans that could increase the power of state lawmakers over races for Congress and the presidency, as well as redistricting, and cut state courts out of the equation.

The issue has arisen repeatedly in cases from North Carolina and Pennsylvania, where Democratic majorities on the states’ highest courts have invoked voting protections in their state constitutions to frustrate the plans of Republican-dominated legislatures.

Already, four conservative [radical Republican] Supreme Court justices have noted their interest in deciding whether state courts, finding violations of their state constitutions, can order changes to federal elections and the once-a-decade redrawing of congressional districts. The Supreme Court has never invoked what is known as the independent state legislature doctrine, although three justices advanced it in the Bush v. Gore case that settled the 2000 presidential election. [An opinion which expressly stated ““Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities,”, but it nevertheless has been cited as precedent by the radical Republican justices on the Court.]

“The issue is almost certain to keep arising until the Court definitively resolves it,” Justice Brett Kavanaugh wrote in March.

It only takes four of the nine justices to agree to hear a case. A majority of five is needed for an eventual decision.

Many election law experts are alarmed by the prospect that the justices might seek to reduce state courts’ powers over elections.

“A ruling endorsing a strong or muscular reading of the independent state legislature theory would potentially give state legislatures even more power to curtail voting rights and provide a pathway for litigation to subvert the election outcomes expressing the will of the people,” law professor Richard Hasen wrote in an email.

But if the justices are going to get involved, Hasen said, “it does make sense for the Court to do it outside the context of an election with national implications.”

The court could say as early as Tuesday, or perhaps the following week, whether it will hear an appeal filed by North Carolina Republicans. The appeal challenges a state court ruling that threw out the congressional districts drawn by the General Assembly that made GOP candidates likely victors in 10 of the state’s 14 congressional districts.

The North Carolina Supreme Court held that the boundaries violated state constitution provisions protecting free elections and freedoms of speech and association by handicapping voters who support Democrats.

The new map that eventually emerged and is being used this year gives Democrats a good chance to win six seats, and possibly a seventh in a new toss-up district.

Pennsylvania’s top court also selected a map that Republicans say probably will lead to the election of more Democrats, as the two parties battle for control of the U.S. House in the midterm elections in November. An appeal from Pennsylvania also is waiting, if the court for some reason passes on the North Carolina case.

Nationally, the parties fought to a draw in redistricting, which leaves Republicans positioned to win control of the House even if they come up just short of winning a majority of the national vote.

If the GOP does well in November, the party also could capture seats on state supreme courts, including in North Carolina, that might allow for the drawing of more slanted maps that previous courts rejected. Two court seats held by North Carolina Democrats are on the ballot this year and Republicans need to win just one to take control of the court for the first time since 2017.

In their appeal to the nation’s high court, North Carolina Republicans wrote that it is time for the Supreme Court to weigh in on the elections clause in the U.S. Constitution, which gives each state’s legislature the responsibility to determine “the times, places and manner” of holding congressional elections.

Note: States have done this. States long ago delegated the selection of Presidential Electors to the popular vote of its citizens. John Eastman wanted  states to “take it back from the voters” and allow partisan Republican legislators to select their own Presidential Electors, regardless of the popular vote of its citizens, after the election did not go Trump’s way.  This is not democracy, it is GQP authoritarianism.

“Activist judges and allied plaintiffs have proved time and time again that they believe state courts have the ultimate say over congressional maps, no matter what the U.S. Constitution says,” North Carolina Senate leader Phil Berger said when the appeal was filed in March.

More psychological projection from Republicans. Taking this case, and worse, deciding it in favor of North Carolina would be the worst example of “activist judges” since Bush v. Gore, in which only five Republican justices determined the outcome of the 2000 election, not the millions of ballots cast by voters.

The Supreme Court generally does not disturb state court rulings that are rooted in state law.

But four [radical Republican] Supreme Court justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Kavanaugh — have said the court should step in to decide whether state courts had improperly taken powers given by the U.S. Constitution to state lawmakers.

Justice Thomas should be forced to recuse himself because his insurrectionist Coup Plotter wife was directly communicationg with insurrectionist Coup Plotter lawyer John Eastman, the author of the “Coup Memos” and a former law clerk to Justice Thomas. The Chief Justice must step in and tell him that he is disqualfied from participating in this case.

That was the argument that Thomas and two other conservative justices put forward in Bush v. Gore, although that case was decided on other grounds.

If the court takes up the North Carolina case and rules in the GOP’s favor, North Carolina Republicans could draw new maps for 2024 elections with less worry that the state Supreme Court would strike them down.

Defenders of state court involvement argue that state lawmakers would also gain the power to pass provisions that would suppress voting, subject only to challenge in federal courts. [And the Roberts Court has already gutted the Voting Rights Act to make this less likely to succeed.] Delegating power to election boards and secretaries of state to manage federal elections in emergencies also could be questioned legally, some scholars said.

“Its adoption [“Independent State Legislature doctrine”] would radically change our elections,” Ethan Herenstein and Tom Wolf, both with the Brennan Center’s Democracy Program at the New York University Law School, wrote earlier this month.

That’s an understatement. It would mark the emd of American democracy, and the beginning of the tyrrany of the minority of GQP authoritarianism. The radical Republican justices would give their imprimatur of legality to American fascism.

I wonder whether Judge Michael Luttig is willing to “throw his body in the road” to prevent the U. S. Supreme Court from engaging in this perversion of the rule of law.




Advertisement