The normalization of the radical far right and illegitimate Supreme Court majority continues over at Politico this day, which provides a preview of the Moore v. Harper case the court will hear Wednesday. That’s the screwball and dangerous “independent state legislature” theory that formed the base of Trump’s legal insurrection effort to install his fake electors and overturn the 2020 election. It posits that state legislatures are the ultimate authority in federal elections, even above state supreme courts, brought by the North Carolina Republican legislature against that state’s Supreme Court, which ruled a gerrymandered congressional redistricting map unconstitutional.
Politico blandly presents that as “a legal idea … that would give state legislatures more control over elections—which could have a dramatic impact on everything from who gets elected to Congress to what rules voters must follow to cast their ballots in 2024.” It’s presented as “once on the fringes of election law discourse, but it has now gained significant traction among conservative election lawyers,” which has “led worried liberal commentators to warn that they were opening the door to state legislatures trying to throw out presidential elections.”
It is absolutely not just “worried liberal commentators” who have raised the alarm over this whackjob legal crusade of the extremists reaching the Supreme Court. The idea is so radical, the Conference of Chief Justices of all the states and U.S. territories filed a brief with the court. It’s not unprecedented for the states’ equivalent of Chief Justice John Roberts to intervene but it is extremely rare. They did so because “It’s the biggest federalism issue in a long time,” Chief Justice Nathan L. Hecht of the Texas Supreme Court told The New York Times’ Adam Liptak. “Maybe ever.”
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These state chief justices, appointed by members of both political parties, submitted an advisory brief and did not formally back either of the parties in the court, but it eviscerated the theory explaining it has no basis in history, constitutional law, or Supreme Court precedent. So you can consider them unanimously opposed. They were joined by dozens of other federal and state officials and prominent attorneys who filed friend-of-the-court briefs denouncing the theory.
The Brennan Center has catalogued the briefs and details the “most significant names” raising the alarm about this case: “Federalist Society cofounder Steven Calabresi, highly respected former federal circuit judge Thomas Griffith, former California Gov. Arnold Schwarzenegger, a group of prominent former Republican election officials, and even Republican election lawyer Ben Ginsberg, who worked on the Bush v. Gore case that planted the seeds of the theory.”
Calabresi—who founded the damn Federalist Society that was the force behind seating the extremist majority—wrote that the petitioners bringing the case “flout core tenets of the American founding.” Ginsburg wrote that it would “create untenable legal uncertainty around elections” and “increase the odds that state legislatures replace the popular vote with their own political preferences.” Another group of retired admirals, generals, and military branch secretaries warned that the theory “undermines election integrity and exacerbates both domestic and foreign threats to national security.”
“Another significant challenger of the theory is esteemed conservative jurist and former federal circuit judge J. Michael Luttig,” Brennan notes, “who is serving as party counsel for some of the voters and nonprofits in the case.” Luttig was among the leaders of legal conservatism in the Clinton and George W. Bush administrations. He is, or was, a hero in conservative legal circles and absolute star, which is one of the reasons former Vice President Mike Pence reached out to him under Trump’s pressure to make him seat false electors. Luttig is serving as co-counsel for the voting rights groups in the case, driven by how this theory was used in the recent past.
“The independent state legislature doctrine was the centerpiece to Trump’s effort to overturn the 2020 election,” Luttig told CNN this fall. “I have believed since January 6th that I had a responsibility to the country to explain why I rejected the theory in advising the vice president,” he said.
The other briefs are from a small group of election deniers and voter suppression advocates. It’s the state attorneys general in a handful of red states, the think tanks and law shops that exist to make money out of the vast GOP welfare scheme, and notably the Republican political committee arms. Because the official Republican Party line is damn the constitution, we need to cheat so we can always win.
It is also absolutely worth noting that the whole case is built on historical fraud, centering a falsified document created in 1818 by South Carolinian named Charles Pinckney, who was asked by Secretary of State John Quincy Adams to submit his draft proposal from the Constitutional Convention. Adams created the official Journal of the Convention for the government 30 years after the fact. Pickney submitted a draft that was essentially the Constitution, which was immediately debunked by the James Madison, who had meticulously recorded the proceedings. There has been broad historical agreement that the document from Pickney was a total fraud.
And that document is cited in the brief of the Republican North Carolina legislators in their bid to kneecap the state’s Supreme Court. They brought the case after the congressional map they created for redistricting was rejected by the state court as unconstitutional. After the gerrymandered map was struck down, the legislators brought the case to the U.S. Supreme Court and here we are, on the cusp of a decision by the highest court in the land to allow a fraud and fringe doctrine to throw out 233 years of democracy.
There are likely three Supreme Court justices who will happily do that. Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito have all proven at least sympathetic to the argument. Brett Kavanaugh has flirted with it, and the only true unknowns among the conservatives are John Robert and Amy Coney Barrett. Roberts is the most likely to reject it—it’s far too radical for him. Barrett is a totally unknown quantity here.
It’s also worth noting here that Barrett, along with Kavanaugh and Roberts, worked for the Bush side in the Bush v. Gore litigation. That case hinged on the radical independent state legislature doctrine espoused by Chief Justice William Rehnquist. The justices, in deciding that it was their job to select the president, realized that what they were doing was radical. We know that because they went to great lengths to declare that their decision was not precedential, that it was a one-off and shouldn’t be used as the basis for future challenges.
But here we are with the lawyer who brought that case to the SCOTUS, Ginsberg, telling this court that they are flirting with creating a “toxic brew of uncertainty, distrust, partisanship, and unchecked power lead[ing] to nightmare scenarios that all parties want to avoid: ‘competing candidates ... declar[ing] victory under different sets of rules[;]’ actual fraud; and false claims of it.”