“perhaps a largely forgotten provision of the Constitution offers a solution to safeguard American democracy. Created amid some of the country’s most violent clashes over voting rights, Section 2 of the 14th Amendment provides a harsh penalty for any state where the right to vote is denied “or in any way abridged.”
A state that crosses the line would lose a percentage of its seats in the House of Representatives in proportion to how many voters it disenfranchises. If a state abridges voting rights for, say, 10 percent of its eligible voters, that state would lose 10 percent of its representatives — and with fewer House seats, it would get fewer votes in the Electoral College, too.”
“On the eve of former President Donald Trump’s infamous tweet calling for his supporters to show up in Washington on January 6, the West Wing was “unhinged.”
As shown by the select committee investigating the January 6, 2021, attack on the Capitol, the December 19 tweet followed an Oval Office meeting where insults, personal attacks, and even challenges to fistfights were exchanged among participants, as a group of outside advisers to Trump tried to persuade him to issue an executive order to seize voting machines and name lawyer Sidney Powell as a special counsel to investigate fraud in the election.
In a text message provided to the committee, former White House aide Cassidy Hutchinson, who was also in the West Wing at that time, described the meeting to another White House aide. “The west wing is UNHINGED,” she wrote.
Even that fails to describe the fiery nature of the showdown between attorneys from the White House counsel’s office and the likes of Trump lawyers Rudy Giuliani and Sidney Powell, former national security adviser Michael Flynn, and former Overstock CEO Patrick Byrne. Giuliani testified that he called Trump’s White House lawyers “a bunch of pussies” for not zealously backing Trump’s efforts to overturn the 2020 election.”
“Do state courts have the power to interpret their own state constitutions? The Supreme Court could be poised to say “no” — at least when it comes to redistricting and election law.
Last week, the Supreme Court agreed to hear the case Moore v. Harper in the coming fall term. In that case, Republican legislators in North Carolina are asking the court to overturn the state Supreme Court’s decision to throw out their gerrymandered congressional map and impose one of the court’s own.
Their argument rests on an extreme reading of the elections clause of the U.S. Constitution that posits that only state legislatures and Congress have the authority to decide how federal elections are run. Under this school of thought, known as the “independent state legislature” theory, state courts would no longer be able to intervene — even when a legislature violated the state’s constitution, as was found to be the case in North Carolina.
The independent state legislature theory is fewer than 25 years old, and for most of its life, it’s been relegated to the fringes of academia. But it was widely promoted by former President Donald Trump and his allies as they attempted to first undermine — and then overturn — the outcome of the 2020 presidential election. And several Supreme Court justices have already suggested that they’re on board with the theory. During litigation over election laws in Pennsylvania and Wisconsin in 2020, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch endorsed some version of the idea that state legislatures should have nearly unfettered power over how federal elections are run, and earlier this year, they said in an emergency-docket ruling that they would have ruled in favor of the North Carolina legislature.
If the Supreme Court sides with North Carolina Republicans in this case, it would have massive implications for election law. Depending on how the court rules, state courts might no longer be allowed to strike down legislatures’ proposed congressional maps for being gerrymandered. And if this happens, the way American elections are conducted would change in dramatic and destabilizing ways.”
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“An extreme embrace of the theory by the Supreme Court would hand legislatures power over every aspect of how federal elections are run, to the exclusion of not only state courts but also possibly other state actors like governors and election administrators. “It would be a voter suppressor’s fever dream,” Wolf said.”
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“the impact wouldn’t stop at redistricting. The Constitution’s elections clause also covers every aspect of how federal elections are run. That includes the 56 voting restrictions passed since the 2020 election — laws that require ID in order to vote, discourage absentee voting, move up voter deadlines, cut early voting, purge voters from the rolls and ban giving food and water to voters waiting in line.”
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“Similarly, courts would not be able to unilaterally change federal election laws in an emergency, like the Pennsylvania Supreme Court did in 2020 when it extended the deadline for absentee ballots to be received amid widespread delays in postal service. “If the state legislature says, ‘Polls close at 7 p.m.,’ and on Election Day, there’s a hurricane and the [state] Supreme Court says, ‘Keep them open until 10,’ the legislature wins,” Vladeck said.”
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“Some Trump allies have also argued that the independent state legislature theory empowers legislatures to appoint an alternate set of state electors — which, in 2020, could have overturned the presidential election. However, Leah Litman, a law professor at the University of Michigan, said that it’s important to remember that even the independent state legislature theory doesn’t mean state legislatures would be completely unchecked, because the U.S. Constitution would still apply. But she added that part of what alarms her about the theory is that it’s so unclear what embracing it would actually do. “It’s just kind of a mess,” she said of the theory. “We really don’t know what it would look like.””
“The North Carolina Supreme Court ruled in February that the state’s congressional maps violated the state constitution by illegally favoring Republicans. The map — drawn by GOP legislators — could have given the party control of as many as 11 of the closely divided state’s 14 districts.
But the Republican legislators argued in an appeal to the U.S. Supreme Court that the state court had extremely limited authority to police the legislature on federal election matters — a theory known as the “independent state legislature” theory.
The theory holds that state legislatures have near-uncheckable authority to set procedures for federal elections — and state courts have either a limited or even no ability to rule on those laws. The theory is based on a pair of clauses in the constitution, the Electors Clause and the Elections Clause, that mention state legislatures but do not explicitly mention the judiciary.
Republicans have increasingly promoted the theory as a way around state courts that have recently struck down redistricting maps as partisan gerrymanders.
“Some provisions of the Constitution are subject to reasonable debate. Others are not,” read a friend of the court brief from the Republican National Committee and other GOP committees earlier this year.
“Absent from the constitutionally mandated order of authority is any role for the state judiciary,” the brief continued. “Notwithstanding this omission, certain state and commonwealth courts have taken it upon themselves to appropriate the processes that belong to the politically accountable branches of government.”
A Supreme Court ruling that state legislatures alone have the power to make decisions about federal elections, within the boundaries set by federal law, could have a dramatic impact on redistricting processes and election procedures.
Actions by state legislatures could still be subject to challenge in federal courts, but state courts and even governors could be sidelined under the most expansive interpretations of the “independent state legislature” theory.
With 30 state legislatures currently in Republican hands, GOP state legislative leaders would be strongly positioned to skew maps in their party’s favor and to make changes Republican have sought to voting procedures.
Four conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — have signaled at least an openness to some version of the theory.
The theory was also central to then-President Donald Trump’s ultimately unsuccessful attempt to get states to appoint a slate of alternate electors in the 2020 presidential contest.
The court is likely to hear arguments in the case late this fall or early next year. The Supreme Court is also set to hear arguments in October in the case Merrill v. Milligan, which election lawyers and civil rights groups worry could undermine the Voting Rights Act.”
“In one fell swoop, former Trump White House aide Cassidy Hutchinson transformed the story of the January 6, 2021, attack on the Capitol.
Hutchinson, who was a top deputy to Trump chief of staff Mark Meadows, revealed a series of stunning details about the events of the Capitol riot during her testimony to the January 6 committee. Hutchinson’s testimony suggests that the president knew in advance that violence was a possibility that day, and may very well have approved of it. He instructed his supporters to go to the Capitol, knowing that they were armed, and planned to join them personally once they arrived. After he was prevented from going personally, he told top aides that his vice president deserved the “hang Mike Pence” chants and that the rioters weren’t doing anything wrong.”
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“Hutchinson is not the first committee source to describe Trump as approving the idea of Pence’s execution. But hearing more confirmation, together with testimony that he believed that the crowd assaulting police officers and ransacking the Capitol was doing nothing wrong, paints an even clearer picture of a president who not only condoned the violence, but actively approved of it.
Put together and, assuming the details are true, we now have good reason to believe that the violence of the day was not accidental but intentional: that Trump wanted a violent mob to attack the Capitol on his behalf, to use force to disrupt Congress’s certification of the election results and thus give him a chance at illegally holding on to the presidency.
It appears, in short, to be a kind of attempted regime change: a coup that we would have no problem describing as such in any other country but our own.”
“Competitive congressional districts have been steadily disappearing for decades. In the current redistricting cycle, six highly competitive districts in the House of Representatives were drawn out of existence. The Cook Political Report estimates that less than 8 percent of congressional districts will be competitive come November.
This is a problem. It’s not because competitive districts are a powerfully moderating force on our democracy — instead, the decline of competitive districts is a problem that reflects deeper causes of partisan polarization and leaves the overwhelming majority of Americans in places where their votes don’t matter, and where parties and candidates don’t need to work for anybody’s votes.
Governing in America requires compromise. But when over 90 percent of congressional districts lean toward one of the two major parties, that means most representatives have little incentive to compromise. In fact, representatives increasingly face strong pressures to be very partisan, which has made governing very difficult.”