Crisis averted!

June 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.

Two developments regarding Trump's criminal exposure.

          Special counsel Jack Smith is interviewing Georgia Secretary of State Brad Raffensperger on Wednesday. See CNN, Investigators from special counsel’s office to interview Georgia Secretary of State Raffensperger. It does not appear that Smith is conducting a separate investigation into Trump's effort to overturn the Georgia presidential election. But it is possible that Smith views Raffensperger as relevant to Trump's intent to block the electoral count on January 6th and send the contested election back to the state legislature. Trump also suggested that Raffensperger might be committing a felony if he certified the Georgia election results. So, the call is fertile ground for Smith, even if he doesn’t bring a separate prosecution relating to Georgia.

          In New York, Trump got a chilly reception in his effort to remove the New York state-court hush-money prosecution to federal court. See CBS News, Judge signals Trump "hush money" case likely to stay in state court. State court Judge Juan Merchan has set trial in the Manhattan criminal prosecution for March 25, 2024. That date is likely to stick, so Trump will be defending himself in a criminal trial during the opening months of the GOP primary.

Join a States Project Giving Circle.

          The States Project has started an initiative called Giving Circles in which like-minded people come together to pool donations for state-level races that can affect the balance of power in key states. See the States Project/Giving Circles description of its highly successful model here: Welcome to Giving Circles - The States Project. Take two-minutes to watch the video by Melissa Walker explaining how small donations can make a major difference in state legislatures. The States Project can connect you with a new or existing Giving Circle to help inspire and support your efforts—and amplify the effectiveness of your donations.

          Melissa Walker, the Head of Giving Circles sent the following note:

At The States Project, we know that rightwing state legislative majorities will continue to test the limits of their power on issue after issue. ​We will not let today’s decision distract us from our goal. We remain laser-focused on building power for lawmakers who will defend our freedoms where they’re being attacked: in state legislatures. 

          In fact, Giving Circles started by readers of this newsletter (Today’s Edition by Robert Hubbell) have already raised over $100,000 to strategically target state legislatures with The States Project this year — if you want to start a Giving Circle, or join one from this community that's already going, visit statesproject.org/action or email gcteam@statesproject.org to find out more.

Concluding thoughts.

          It is too early to take a victory lap in celebration of the Supreme Court’s term ending this week, but there is cause for cautious optimism. The overwhelming criticism of the Court’s lurch to the right in its last term may have caused some justices (Kavanaugh, Barrett) to reconsider their unholy alliance with Alito, Thomas, and Gorsuch. Several commentators have suggested as much: See Dahlia Lithwick and Mark Joseph Stern in Slate, Are Samuel Alito and Clarence Thomas losing the other Supreme Court conservatives?, and Ed Pilkington in The Guardian,Turning point or the long game: what’s behind John Roberts’s surprise supreme court voting rights ruling?

          But there are several important cases remaining on the docket, including the student loan case and the affirmative action case. Odds are high that Alito will write one of those two opinions with outcomes that are likely to hurt millions of Americans as Alito mocks those who are disadvantaged by his opinion. Alito seems to be becoming more angry and bitter by the day. Such behavior may be affecting the willingness of other justices to sign onto opinions authored by an angry old man yelling at kids to get off his lawn. See Aziz Huq in Politico, Opinion | Samuel Alito: One Angry Man.

          But it is reasonable to believe that public criticism of the Court has found its mark in justices who care about their legacy—even if they do not care about the legacy or legitimacy of the Court. If true (and I believe it is), then our collective outcry has made a difference. The lesson we should take from the moderation in a handful of Court opinions this term is that our outcry should become even louder and more urgent.

          As Pilkington asks in his article in The Guardian (linked above), “Is this just a temporary pause in [Roberts’s] long game?” We may get our first clue about the answer to that question in the next few days. But even if those opinions surprise us like Allen v. Milligan (voting rights) and Moore v. Harper, the only reasonable assumption to assume that Roberts, Kavanaugh, and Barrett are temporizing, waiting for the next major item on the MAGA agenda to make its way to the Court. Too much is at stake for us to assume otherwise. We must keep up pressure on the Court!

          Talk to you tomorrow!