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dontmeantobepoliticalbut · 10 months

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A video clip of Florida Republican Gov. Ron DeSantis from two and a half years ago has resurfaced and is being shared on social media, in which the 2024 presidential candidate suggested using a discredited legal theory in order to overturn the results of the 2020 election to help then-President Donald Trump remain in office.

The video suggests DeSantis, like Trump, is willing to embrace far-fetched legal theories in order to help himself or other Republicans obtain positions of power, even if they go against the democratic preferences of voters.

In the video, DeSantis discusses possible remedies to help Trump win the 2020 election, even after most media outlets at the time — including Fox News, the cable news station where the interview took place — had already called the election for President Joe Biden. DeSantis suggests utilizing an aspect of the fringe, right-wing independent legislature theory, which posits, in part, that state legislatures are the sole deciders of how electors are chosen to represent states in the Electoral College.

The Florida Governor also encourages viewers in states Trump lost to President Joe Biden to pressure their state legislatures to utilize the theory…

“If you’re in those states that have Republican Legislatures like Pennsylvania and Michigan and all these places, call your state Representatives and your state Senators,” DeSantis said in the clip. “Under Article II of the Constitution, presidential electors are done by the Legislatures and the schemes they create.”

DeSantis added that he would “exhaust every option” in order to produce what he said would be a “fair count” of votes, although all indications at the time — and ever since — showed that the initial vote count was both fair and legitimate.

While the Constitution does give legislatures the ability to decide how electors are chosen, it doesn’t give them the right to overturn elections or to decide how electors are picked after voters have already decided — the clause simply gives state governments the ability to pass laws to determine what the process will be. Since the middle of the 19th century, every state has chosen its electors through an election by eligible voters.

Seen as a fringe theory at the time DeSantis suggested it on Fox News, the United States Supreme Court has since rejected other aspects of the independent state legislature theory, which asserted that the legislature alone has the authority to decide how congressional maps are drawn.

A staunch Trump supporter when the interview was recorded, DeSantis has since stated he doesn’t believe Trump won the 2020 race.

Earlier this month in an interview with NBC News correspondent Dasha Burns, DeSantis was asked who he thought won the race, Biden or Trump. At first, DeSantis tried to sidestep the issue — “Whoever puts their hand on the Bible on January 20 every four years is the winner,” he responded.

Burns pressed DeSantis to be more direct. “Respectfully, you did not clearly answer that question,” she pointed out, asking whether the Florida Governor could give a “yes” or “no” response instead.

“No, of course he lost. Joe Biden’s the president,” DeSantis finally relented.

DeSantis will likely have to explain to voters why he, like Trump, would be supportive of using then-untested legal theories in order to justify overturning the will of the people — that is, of course, if he’s successful in becoming the Republican Party’s presidential nominee. As it stands right now, DeSantis, like all other current GOP primary candidates, is polling far behind Trump.

A recent Quinnipiac University poll published this week, for example, shows that 57% of Republican-aligned voters back Trump for the party’s pick. DeSantis, meanwhile, obtains just 18% support, while businessman Vivek Ramaswamy garners 5% and former Vice President Mike Pence gets 4% in the poll.

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nodynasty4us · 1 year

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Hanging over all of this is the U.S. Supreme Court's case of Moore v. Harper.... A decision is expected in June. The leak hasn't been scheduled yet.

Electoral-vote.com

#supreme court #gerrymandering #independent state legislature theory

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gwydionmisha · 11 months

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#Supreme Court #Independent State Legislature Theory #Election Oversight #Judicial Review #News

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dreaminginthedeepsouth · 11 months

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Crisis averted!

June 28, 2023

ROBERT B. HUBBELL

JUN 28, 2023

The Supreme Court dealt a fatal blow to the “Independent State Legislature” theory in a surprise ruling in Moore v. Harper on Tuesday. Although the holding in the case was narrow, the reasoning was broad enough to ensure the demise of a theory that would have granted state legislatures nearly unbounded power in federal elections. Consequently, state legislators must abide by the will of the people in congressional and presidential elections.

The ruling is the most consequential and positive development for democracy since the January 6th insurrection—perhaps since the Civil War. Or, as Ian Millhiser put it, “The Supreme Court decides not to destroy democracy in the United States.”

There is plenty of excellent commentary analyzing the ruling, which I cite below. But I would like to step back to view Moore v. Harper in the broader context of efforts to repair the damage of January 6th and prevent future recurrences. Moore v. Harper is an unexpected but powerful coda to a series of efforts to right the ship of democracy after it nearly foundered on January 6th. (Apologies for the mixed metaphor, but you get the point.)

The fake electors plot and assault on the Capitol were complementary efforts in the broader plot to overturn the 2020 election. That plot began with two Eastman memos that outlined a plan to “create a stalemate” in Congress when counting electoral ballots “that would give the state legislatures more time to weigh in to formally support the alternate slate of electors.” [Eastman Memo 1.]

Eastman also suggested that disputes over competing slates of electors would create a delay during which state legislatures could appoint an alternate slate of electors (i.e., the fake electors):

“State legislatures [would] convene, order a comprehensive audit/investigation of the election returns in their states, and then determine whether the slate of electors initially certified is valid, or whether the alternative slate of electors should be certified by the legislature, exercise authority it has directly from Article II and also from 3 U.S.C. § 2. “ [Memo II.]

In short, the fake electors plot was predicated on the notion that Mike Pence would “delay” the count of ballots because of competing slates of electors. When Pence declared he would not grant that delay, Trump incited his followers to assault the Capitol to create the necessary delay by force.

That is the pith of the Eastman coup scheme: That state legislatures are free-floating entities with “plenary power” to appoint presidential electors without regard to the prior selection of electors by popular vote.

There was more to the coup plot than outlined above, but those are the essential elements. Eastman (and Trump) were positing non-existent ambiguities in the 12th Amendment and Electoral Count Act relating to the power of state legislatures, the appointment of electors, the role of the Vice President, and the handling of objections to the count of electoral ballots. The attempted coup was thus based on imagined ambiguities and a willingness to resort to violence to derail the count of electoral ballots.

In the aftermath of January 6th, there was a palpable fear that there would be a repeat of January 6th in the 2024 presidential election—this time with GOP state legislatures having more time to line up alternate slates of electors to support Trump if he loses in swing states.

But several developments after January 6th have made the recurrence of a similar attempted coup unlikely to the point of impossibility.

First, to its great credit, Congress passed the Electoral Count Reform and Presidential Transition Improvement Act of 2022, which eliminated even the imagined ambiguities posited by Eastman.

For example, the Act clarified that states must submit a single, conclusive slate of electors appointed according to rules in effect on Election Day. The Act clarifies that the role of the Vice President is ministerial with no power to resolve or rule upon objections. It raised the threshold for objections from two members of Congress to 20% of each chamber. Finally, the Act removed the ability of states to declare a “failed election”—a possibility under the old Electoral Count Act, which permitted legislatures to determine a new method for selecting electors.

The Department of Justice has charged more than a thousand defendants with crimes arising from the assault on the Capitol. The attractiveness of violence in aid of Trump's conspiracy theories has diminished greatly—as evidenced by the sparse crowds that responded to his indictments in Manhattan and Florida. And the DOJ it is reportedly investigating John Eastman, Rudy Giuliani, Donald Trump, and several fake electors for their effort to defraud the US by submitting false certificates to the National Archives claiming to be duly appointed electors.

The January 6th Commission exposed the fake elector scheme to the harsh light of public scrutiny. Most of the participants in the scheme have since taken the position that they were “just joshing” and weren’t really claiming to be the true electors. John Eastman is currently defending a proceeding by the California State Bar to revoke his license to practice law. Rudy Giuliani has lost his right to practice law in New York and D.C.

Even without today’s ruling in Moore v. Harper, the Electoral Count Reform Act and the investigations, prosecutions, and license revocations provide a powerful disincentive to attempt a re-run of the fake electors scheme in 2024. But Moore v. Harper eliminated any doubt about the viability of the Independent State Legislature theory. In short, state legislatures are not autonomous bodies with independent power to elect the president. Or, as Chief Justice Roberts put it,

“Legislatures, the Framers recognized, “are the mere creatures of the State Constitutions, and cannot be greater than their creators.”

The actual holding in Moore v. Harper was limited to the question of whether state courts could review the actions of state legislatures when setting the “time, place, and manner” of federal elections. In concluding that state legislatures are subject to review by state courts, Chief Justice Roberts wrote an extensive analysis of the Court’s previous rejections of the Independent State Legislature theory—demonstrating that the ISL theory has never been accepted in any fashion by the Court.

Indeed, Roberts’s analysis is so convicting, it causes one to wonder why the Supreme Court granted review of the case in the first instance. No matter. The ISL theory is dead and will not be resurrected after Roberts’s definitive takedown.

As always, I recommend the analyses by Ian Millhiser in Vox, The Supreme Court hands down a big victory for democracy — with one caveat — in Moore v. Harper, and Mark Joseph Stern in Slate, John Roberts has wrested back control of the Supreme Court.

Some commentators are bemoaning the fact that Roberts reserved the right of the federal courts to review state court decisions interpreting state law in narrow circumstances. (That is what happened in Bush v. Gore.) But the exception applies only when state courts “arrogate to themselves the power vested in state legislatures to regulate federal elections.” But that standard does not alter the status quo, so we should not let that fact spoil the victory in Moore v. Harper.

So, here’s my point: The combined effect of Moore v. Harper, the Electoral Count Reform Act, the DOJ prosecutions, state bar license revocation hearings, and the January 6th hearings make a repeat of the fake electors or Independent State Legislature coup attempts impossible. Of course, there are other ways to steal an election (and the GOP will no doubt try), but the opinion in Moore v. Harper suggests that a majority of the Court is committed to ensuring that the will of the people is heard in presidential elections. That is a good result on many levels, and everyone should heave a sigh of relief today.

Speaking of ways to steal an election . . . .

Running a third-party candidate in a presidential election does not amount to “stealing” an election if that candidate is a good-faith contestant for the job. But if the third-party candidate—like No Labels—is a shill who exists only to siphon votes from one candidate, the arrangement is deceptive at best, fraudulent at worst.

But what about a situation in which a candidate challenging an incumbent president for their party’s nomination is supported by the incumbent’s opponent? That may be the situation with Robert F. Kennedy, Jr. That is the disturbing possibility raised in a Rolling Stone article, RFK Jr. Super PAC Has Ties to Marjorie Taylor Greene, George Santos. Per Rolling Stone, RFK’s PAC is run by the same management team that ran PACs for Marjorie Taylor Greene, George Santos, and Herschel Walker.

The fact that RFK’s PAC is run by the same management team used by Marjorie Taylor Greene is not conclusive evidence that RFK is a shill for Trump, but it seems highly unlikely that a good-faith candidate would use a management team with ties to MAGA extremists. The whole thing stinks.

Robert B. Hubbell Newsletter

#SCOTUS #independent state legislature theory #Voting rights #gerrymanderng #stealing an election #RFK Jr.#rule of law #Robert B. Hubbell Newsletter #robert b. hubbell

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kp777 · 1 year

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By Jessica Corbett

Common Dreams

June 27, 2023

By ruling against the independent state legislature theory, said one activist, "the U.S. Supreme Court made clear that state courts and state constitutions should serve as a critical check against abuses of power by legislators."

Democracy defenders across the United States on Tuesday breathed a collective sigh of relief after half of the U.S. Supreme Court's right-wing supermajority joined with the three liberal justices to reject a "dangerous" legal theory that could dramatically impact federal elections.

"The Supreme Court took an important and crucial step today in protecting our system of checks and balances," said Hilary Harris Klein, senior counsel for voting rights at Southern Coalition for Social Justice. "Today's decision will ensure that voters will continue to have the full protection of state constitutions against harmful and anti-democratic voter suppression and election manipulation."

Oral arguments for Moore v. Harper in December had some campaigners worried that at least five justices would embrace the independent state legislature theory (ISLT), whose proponents claim the U.S. Constitution only empowers state legislatures to regulate federal elections, without checks from state constitutions, courts, or governors.

However, in the case—which stemmed from a fight over North Carolina's congressional map—Chief Justice John Roberts, fellow conservatives Amy Coney Barrett and Brett Kavanaugh, and liberals Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor rejected the ISLT. Right-wing Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented.

The elections clause of the U.S. Constitution "does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections," Roberts wrote for the majority. "When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review."

"When a state legislature carries out its federal constitutional power to prescribe rules regulating federal elections, it acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the federal Constitution," he continued. "Both constitutions restrain the state legislature's exercise of power."

"Although the elections clause does not exempt state legislatures from the ordinary constraints imposed by state law, federal courts must not abandon their duty to exercise judicial review," Roberts added. "This court has an obligation to ensure that state court interpretations of state law do not evade federal law."

Both the majority opinion and campaigners pointed to precedent. Fair Elections Center litigation director Jon Sherman said that "for 233 years and counting, no court has ever found that state election laws are unconstrained by state constitutional requirements, because this is a fantasy that is antithetical to our system of government."

Elias Law Group partner Abha Khanna, counsel of record for theplaintiffs, called the 6-3 decision "a resounding victory for free and fair elections in the United States."

The ISLT "is a dangerous, fringe legal theory that has no place in our democracy," Khanna said. "In its most extreme form, the independent state legislature theory could have weakened the foundation of our democracy, removing a crucial check on state legislatures and making it easier for rogue legislators to enact policies that suppress voters and subvert elections without adequate oversight from state court."

The case was argued in the wake of former President Donald Trump—who is seeking the Republican nomination for 2024—and his supporters refusing the accept the results of the 2020 election, which led to the January 6, 2021 attack on the U.S. Capitol. Notably, two of the three Trump-appointed justices, Barrett and Kavanaugh, rejected the ISLT.

While celebrating the new ruling as "a historic victory for the people of North Carolina and for American democracy," Bob Phillips, Common Cause North Carolina's executive director, also looked ahead.

"Today, the U.S. Supreme Court made clear that state courts and state constitutions should serve as a critical check against abuses of power by legislators," he said. "Now, we must ensure our state courts fulfill their duty to protect our freedoms against attacks by extremist politicians."

Campaign Legal Center senior vice president Paul Smith similarly said that "while the Supreme Court's ruling is a victory for democracy, the fight for fair maps in North Carolina and across the country is far from over," and vowed his group "will continue fighting for fair maps so voters can feel confident that they choose their representatives, not the other way around."

Common Cause vice president of programs Kathay Feng highlighted that there is also work to be done at the national level, saying that "now Congress must act and pass long overdue protections for voters, so that we can put an end once and for all to the persistent attempts to undermine and restrict our right to vote."

Since the election chaos of 2020, the U.S. Senate's filibuster rule, right-wing obstructionist Democrats, and Republicans reclaiming control of the House of Representatives have impeded the passage of national voting rights legislation, as GOP state legislators have continued voter suppression efforts across the country.

Still, Senate Majority Leader Chuck Schumer (D-N.Y.) on Tuesday pledged to keep up the fight, quoting the late civil rights icon and Democratic Congressman John Lewis, for whom a key voting rights package is named.

"Today those who support democracy, fair elections and the rule of law can stand a bit taller," Schumer said of the Moore decision. "There is still much work to do to protect American democracy. As John Lewis said, 'Democracy is not a state. It is an act,' which is why Senate Democrats will continue to fight for free and fair elections."

Campaigners in recent years have urged Congress to act on not only voting rights legislation but also Supreme Court reforms.

"Today marks a rare example of our politicized court falling on the right side of history," said Carrol Olinger, Fayetteville director at Action N.C., an affiliate of Center for Popular Democracy Action. "This decision was too close of a call, and there was far too much at stake. It is essential to recognize that the need for crucial court reforms remains."

Take Back the Court Action Fund president Sarah Lipton-Lubet agreed. "The fact that this case wasn't laughed out of the court is a sign of how far we have fallen," she said. "Worse, the right-wing justices crowned themselves the ultimate arbiters of future state election disputes. Don't be surprised if we see Bush v. Gore 2.0 in 2024 or beyond."

"What rulings like this one actually highlight is just how afraid Roberts is of the momentum behind Court reform—and how far he'll go to try to quell our power," she added. "The bar for a 'victory' with this court is on the floor. We deserve better. We deserve a judiciary that puts the American people first. And we can only get it if we expand the court."

#u.s. supreme court #independent state legislature theory #democracy

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taylorscottbarnett · 1 year

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Perhaps the most consequential case in US history is facing the Supreme Court.

Moore v. Harper.

The North Carolina State Supreme Court last year blocked North Carolina’s congressional voting map, drawn by Republican lawmakers, as an unconstitutional partisan gerrymander under the state Constitution.

Republicans in the state legislature appealed the ruling to the Supreme Court, stating that the courts could not second-guess the legislature under the US Constitution:

“The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”

A sentence found in Article I, Section 4, Clause 1 of the US Constitution.

This gives authority to state legislative bodies over their elections and the argument goes that the state courts cannot declare a map drawn by the state legislature because the they are given the Constitutional right to decide their election laws. Aka: State Courts cannot overrule a state law redrawing maps or affecting elections.

This would give state governments the power to do anything they wanted (that didn't run afoul of the US Constitution's Supremacy Clause -- in theory) in regards to elections with no checks and balances by another state body.

It's known as the "independent state legislature theory" that state legislaturs are independent and therefore immune from court challenges on how they decide elections.

Interestingly, the composition of North Carolina's Supreme Court flipped in the last election. Now favoring Republicans by a 5-2 margin. After the election, the court ordered a rehearing of the case.

A ruling in favor of North Carolina's State Legislature would undermine a core tenant of checks and balances between state governments and state courts. It would state that the court had no right to declare a state law passed by the legislature invalid because it would effectively be second-guessing the legislature.

If that's not a knife to the heart of checks and balances I don't know what is.

Moreover, it would mean that state governments would be unchecked by ANY other body. A veto by the Governor would be impossible for election laws.

A national voting law would be declared unconstitutional under the "independent state legislature" theory.

Although this would clash with the Supremacy Clause of the United States Constitution as well and how that would play out in court is anyone's guess, given the court has generally gutted federal voting laws in the past.

One should also remember there's not really a lot of federal voting law left after the Supreme Court gutted the Voting Rights Act years ago, so there's a big question if anything could actually be enacted at the federal-level to supercede this that's already law -- and given Republican filibustering any form of new voting rights act, it's unlikely that a State Legislative body would have any oversight at all period.

#politics #us politics #state legislature #independent state legislature theory #republicans #democrats #liberal #conservative

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