Wednesday, June 28, 2023

June 27, 2023 HEATHER COX RICHARDSON

June 27, 2023

JUN 28

Today, in Moore v. Harper, the Supreme Court by a vote of 6–3 decided against the so-called “independent state legislature doctrine” that would have done away with the concept that the popular vote should decide elections.

People who embrace that doctrine argue that the elections clause of the U.S. Constitution turned over to the legislatures alone the power to arrange federal elections, even if their choices violate state constitutions. The clause reads: “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.”

Those embracing the independent state legislature doctrine tend to ignore the part of the clause that comes after the semicolon, but they also like the clause in the Constitution that says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”

Their idea that state legislatures can do as they wish to organize federal elections flies in the face of what we know of the beliefs of the men who wrote the Constitution, but it caught on in 2015, when Republicans wanted to get rid of an independent redistricting commission in Arizona. The idea that legislatures can pick electors as they wish is the plan Trump and his allies pushed to keep him in power in 2020: they claimed that Republican state legislatures could throw out the will of the people and send electors for Trump to Congress rather than the Biden electors for whom the majority voted.

Moore v. Harper came from North Carolina, where the legislature drew a dramatically partisan gerrymander after the 2020 census. The state supreme court rejected the map, saying it violated the state constitution, and ordered it replaced. Republicans in the state legislature petitioned the Supreme Court, arguing that the state courts could not stop the legislature’s plan. The Supreme Court allowed the map to stand for the 2022 election, but today it said that the legislature is not solely in control of elections; it must follow the rules of the state’s courts, which are based on the state’s constitution.

Revered conservative judge J. Michael Luttig has been trying for months to sound the alarm that the independent state legislature doctrine would enable Republicans to steal the 2024 election. Today, he tweeted: “The Supreme Court's long-awaited decision in Moore v. Harper is a resounding, reverberating victory for American Democracy.”

On June 8 the Supreme Court decided another case involving gerrymandering, Allen v. Milligan, from Alabama. In that case, plaintiffs argued that the redistricting after the 2020 census, which showed about a 4% shift from white people to Black people in the state, discriminated against Black voters by “packing and cracking” (creating one majority Black district and diluting the rest of the Black vote by spreading it out). A district court agreed and ordered a new map with two majority-Black districts. Then the Supreme Court stepped in and left the discriminatory map in place.

On June 8, by a 5–4 vote, the court agreed that the map probably violated Section 2 of the Voting Rights Act of 1965, which protects the right to vote by trying to make sure eligible voters aren’t denied access to the vote on account of race. The map will have to be redrawn.

Marc Elias of Democracy Docket notes that there are currently 28 active state court cases challenging congressional maps and state laws concerning federal elections, including 7 that involve state constitutional challenges to congressional maps in which charges of partisan gerrymandering are central. Madeleine Greenberg and Rachel Selzer, also of Democracy Docket, note that as of June 12, there were 32 active lawsuits in 10 states under Section 2 of the VRA.

These recent decisions are a significant step toward stopping extremist legislatures from deciding our elections, but it is worth noting that the cases came up before the 2022 election. Court stays on the challenges to the now-rejected maps meant that those maps were in place during the election, quite possibly swinging the House of Representatives to the Republicans.

In other news, the shocking tape of former president Trump showing unauthorized people a secret national security document, released last night by CNN, has horrified listeners and rattled Trump enough that he first called on supporters to “EXPLAIN TO THE DERANGED, TRUMP HATING JACK SMITH, HIS FAMILY, AND HIS FRIENDS” that he had not committed a crime, a statement that many interpreted as a threat against special counsel Jack Smith, his family, and his associates.

Trump’s tone changed today as he claimed that he didn’t have a secret document in his hands when he said he did. “I would say it was bravado, if you want to know the truth, it was bravado. I was talking and just holding up papers and talking about them, but I had no documents. I didn’t have any documents.” Instead, he said, when he used the word “plans” with the people in his office, he meant “plans of buildings…plans of a golf course.”

While Trump’s immediate concern appears to be about the documents case, the investigation of the attempt to overturn the 2020 presidential election is still underway. We learned today that Special Counsel Smith will interview Georgia secretary of state Brad Raffensperger tomorrow. Trump called Raffensperger on January 2, 2021, to cajole him into changing the election results to say that Trump won in Georgia, rather than losing by more than 11,000 votes. Raffensperger recorded the call. We learned as well that former Trump attorney Rudy Giuliani has also been interviewed in the investigation.

Trump’s troubles are growing serious enough that House speaker Kevin McCarthy (R-CA) suggested on CNBC this morning that Trump might not be the best candidate for the Republican Party in 2024. But then, revealing Trump’s continuing support in the party, he promptly backtracked to say that Trump is the “strongest political opponent” against President Biden.

Meanwhile, the picture of just what is happening in Russia remains unclear, although observers almost universally say the rapid advance of Yevgeny Prigozhin and the Wagner forces toward Moscow this weekend before they turned aside voluntarily illustrated Putin’s weakness. What is crystal clear, though, is that those governments that have cast their fortunes with Putin are now concerned.

Countries near Russia are reevaluating Putin’s power; countries in Africa, too, are recalculating. The Wagner Group has been supporting African strongmen, and Philip Obaji Jr. in the Daily Beast reported Sunday that cabinet officers in the Central African Republic (CAR), whose leadership depends on the Wagner group, were calling each other over the weekend with concern. An advisor to CAR president Faustin-Archange Touadéra told Obaji, “The Russians play a very important role in the security architecture of our country and if they are forced to pull out completely, things could become messy…. The last thing the government [in CAR] wants to see at the moment is the exit of Russia from the country.”

The Wagner Group manages a CAR shell company known as Diamville, and today the U.S. Treasury imposed sanctions on it and Midas Ressources, another CAR firm associated with Prigozhin. It also sanctioned Industrial Resources General Trading, a Dubai-based company that has funded Prigozhin, as well as a Russian firm and a Russian national working in Mali to force those standing against the Wagner Group out of Africa. “The Wagner Group exploits insecurity around the world, committing atrocities and criminal acts that threaten the safety, good governance, prosperity, and human rights of nations, as well as exploiting their natural resources,” the Treasury said. The sanctions are designed to cut off the illicit gold trade and thus stop the flow of money to the Wagner Group.

China, too, has reason to be concerned about Putin’s apparent weakness. As Daniel B. Baer noted in Foreign Policy, Putin’s political power has centered around his own personal power, an approach Chinese president Xi Jinping has also favored. Baer points out that “Xi generally does not want Russia to put on display, for all the world to see, the risks of building a centralized authoritarian regime on an autocrat’s highly personalized power.”

When President Biden gave his first speech to the State Department in February 2021, he made it clear that he intended “to rally the nations of the world to defend democracy globally, to push back the authoritarianism’s advance.” And, he said, such an effort depended on the successful defense of democracy at home.

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Notes:

https://www.cnn.com/2022/04/27/opinions/gop-blueprint-to-steal-the-2024-election-luttig/index.html

https://www.brennancenter.org/our-work/research-reports/independent-state-legislature-theory-explained

https://www.democracydocket.com/cases/pennsylvania-act-77-mail-in-voting-challenge/

https://www.democracydocket.com/news-alerts/pennsylvania-court-rejects-republican-attempt-to-end-gop-backed-mail-in-voting-law/

https://www.democracydocket.com/opinion/a-dangerous-legal-theory-is-rejected/

https://www.democracydocket.com/analysis/how-the-u-s-supreme-courts-decision-in-allen-v-milligan-will-impact-ongoing-redistricting-litigation/

https://www.supremecourt.gov/opinions/22pdf/21-1086_1co6.pdf

https://www.democracydocket.com/news-alerts/nearly-30-state-court-cases-to-continue-unimpeded-by-isl-theory-following-ruling-in-moore-v-harper/

https://twitter.com/judgeluttig/status/1673726425072013312

https://www.semafor.com/article/06/27/2023/it-was-bravado-trump-says-he-wasnt-holding-up-classified-documents-in-2021-meeting