Senator Raphael Warnock!

December 7, 2022

          Congratulations to all Democrats who worked tirelessly to help elect Senator Raphael Warnock to a six-year term as US Senator from Georgia! It was a hard-fought contest in which every vote counted—which means that every phone call, postcard, text, door knock, and dollar also counted. Everyone should be proud and gratified. There are plenty of lessons to be drawn from the midterms (and the Georgia runoff), but the most important lesson is that we control our destiny despite the defeatist narrative favored by the media.

          No reflection on Senator Warnock’s victory would be complete without acknowledging the sacrifice of Georgia voters who stood for hours in the rain to exercise a right that should not be contingent on completing an endurance contest and obstacle course. Despite Senator Warnock’s victory, voter suppression is alive and well in Georgia. All Americans owe Georgia voters a debt of gratitude for their determination and constancy in the face of suppression. Congratulations on a job well done!

On to other news . . .

          There were several significant developments on Tuesday, most of which related to the effort to hold Trump accountable for his crimes. But the biggest story relates to the oral argument in the Supreme Court on Wednesday, December 7th in the case of Moore v. Harper—a stalking horse for the “Independent State Legislature” theory. Let’s look at the Trump developments quickly and then turn our attention to a case that could have a major impact on the role of state legislatures in elections for members of Congress.

Jury convicts the Trump Organization of tax fraud.

          A Manhattan jury convicted the Trump organization of seventeen counts of tax fraud and other financial crimes. The charges related to failure to report as compensation “fringe benefits” provided to company executives, e.g., automobile leases and tuition payments for grandchildren of the company’s CFO. Although a company cannot be sentenced to prison for criminal convictions, the collateral consequences of a felony conviction can be severe.

          For example, most banks will not lend to a company convicted of a felony, and the conviction may be an “event of default” under an existing loan that accelerates the loan’s due date. The state may refuse to grant licenses or permits necessary to engage in certain business activities in New York. New York can revoke the real estate license of any person “if such licensee has been guilty of fraud.” NY Real Property Law, Article 12-A § 441(c).

          The guilty verdicts also raise the possibility that Allen Weisselberg will be charged with perjury for testifying that Trump was unaware of the fraud. Finally, the verdicts leave open the possibility that Trump may be charged with the same crimes—although that seems like a stretch at this point.  

January 6th Committee will make criminal referrals to the Department of Justice.

          Bennie Thompson, the Chairman of the January 6th Committee, said that the Committee planned to make criminal referrals to the DOJ. The referrals are not necessary and do not carry any legal force. But they signal that the J6 Committee has concluded that its investigation uncovered criminal activity in connection with the insurrection and attempted coup. Thompson said that the Committee has not concluded which persons would be referred to the DOJ, but Trump will undoubtedly be included.

          Although symbolic, the referral of Trump for criminal prosecution is another divot in his quickly eroding veneer of invincibility. The move will simultaneously embolden Trump’s challengers in the GOP and compel Trump to seek re-election as his last defense against indictment and prison.

Special Counsel Jack Smith issues subpoenas to state officials in connection with 2020 election.

          In a positive sign that Jack Smith is quickly making up for momentum lost by Merrick Garland, Smith issued document subpoenas to five counties in three states where Trump challenged the 2020 election results. A copy of the subpoena is embedded in this article: Talking Points Memo, Special Counsel Subpoenas At Least 5 Key Counties For Trump Communications Around 2020 Election. The subpoena requests documents reflecting communications between Trump’s advisers, attorneys, and campaign officials on the one hand and county election officials on the other. 

          The issuance of the subpoenas is a positive development—but one that could have (and should have) been undertaken in the immediate aftermath of the 2020 attempted coup. The facts at issue in the subpoenas were widely reported in the media in November 2020. But better late than never! Special Counsel Jack Smith is off to a good start!

Moore v. Harper and the Independent State Legislature theory.

          On Wednesday, December 7, 2022, the Supreme Court will hear oral argument in the case of Moore v. Harper. The question to be decided in Moore is whether state courts can set aside regulations by state legislatures regarding the “time, place, and manner” of federal elections for Senators and Representatives and substitute judicial regulations regarding those elections as permitted by the state constitution.

          The answer to that question may have implications for the so-called Independent State Legislature theory (sometimes referred to as “ISL”), a baseless theory that is being promoted by MAGA extremists to give state legislatures the power to override the popular vote.

          Rather than reviewing Moore v. Harper in detail, I want to address three questions to help set the context for the oral argument in Moore. I believe such context will help readers assess (or ignore) misleading headlines about what is at stake in Moore. Before I do, please understand that I am not dismissing the importance of the issues in Moore or the potential damage that might flow from an adverse decision. But it does no one any good to believe (mistakenly) that an adverse decision in Moore (standing alone) will “end democracy” or “deny citizens of their right to vote.” It will not.

           If you would like to do independent reading, I recommend two excellent explanations of the finer points of the Independent State Legislature theory: The Brennan Center for Justice, Moore v. Harper, Explained and Michael Luttig, The Atlantic, There Is Absolutely Nothing to Support the ‘Independent State Legislature’ Theory. If you wake up at night worrying about the ISL theory, The Brennan Center’s and Judge Luttig’s explanations should give you hope that the Supreme Court will reject the ISL theory outright.

          The three questions I will address are: (1) What is the Independent State Legislature theory; (2) what portion, if any, of the ISL is under review in Moore v. Harper, and (3) what can we do if the Court issues an opinion that implicitly recognizes the ISL theory?

What is the Independent State Legislature theory?

          MAGA extremists deployed the ISL theory in 2020 seeking to overturn the popular vote in states Biden won. At root, the theory asserts that state legislatures effectively possess “superpowers” granted to them by the US Constitution to

1. Select presidential electors without regard to the popular vote, and

2. Regulate federal elections free from oversight by state courts.

          Let’s look at how the ISL was used in 2020. Part of Trump’s attempted coup was to create slates of fake electors to contest the legitimate slates of electors chosen by popular vote. Trump hoped Pence would send the contested slates back to the states, where legislatures would substitute their preferred slate of presidential electors in place of those elected by the people. That did not happen because Mike Pence complied with his constitutional obligation to count the electoral ballots certified by the states.

          As Judge Luttig and The Brennan Center explain, the ISL theory has no support in the Constitution or jurisprudence. But as we know, MAGA extremists never let the Constitution or the law get in the way of their “We win or you cheated” approach to elections.

What portion, if any, of the ISL is under review in Moore v. Harper?

          As noted above, there are two prongs of the ISL theory: (1) the supposed ability of state legislatures to override the popular vote in appointing presidential electors, and (2) the supposed ability of state legislatures to regulate the time, place, and manner of federal elections without review by state courts.

          While both prongs of the ISL theory are important, the notion that state legislatures can override the popular vote to appoint their own slates of electors is the most radical and anti-democratic version of the ISL—but that prong is not before the Court in Moore v. Harper. Instead, the Court will consider whether state legislatures are subject to review by state courts in regulating the time, place, and manner of federal elections.

          So, if you see a headline that says the Court is considering in Moore whether state legislatures can override the popular vote in presidential elections, that headline is wrong. The Court may consider that question in the future, but it is not doing so in Moore v. Harper.

What can we do if the Court issues an opinion that implicitly recognizes the ISL theory?

          What if the reactionary majority agrees that state legislatures can regulate the time, place, and manner of federal elections without oversight from state courts? Does that mean state legislatures are free-floating agencies immune from all review and regulation? NO! How can I be so sure? Because the Constitution says so. Article I Section 4 of the Constitution says the following:

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 . . . .

          So, even if the Supreme Court says that state legislatures are free from oversight by state courts, they are still subject to supervision and oversight by Congress. And they are subject to oversight by the federal judiciary, as well. Let’s consider an example to test the role of the federal judiciary in overseeing state legislatures.

Imagine that a state legislature says that Republicans can vote at any school, library, or fire station, but Democrats can vote only at the state capitol building. Obviously, a federal court would strike down that regulation under the Equal Protection Clause.

          It will be a travesty if the Supreme Court rules that state legislatures are not subject to the oversight of state courts in setting the time, place, and manner of federal elections. But such a holding would fall far short of the extreme version of the ISL theory that asserts state legislatures can ignore the popular vote and appoint slates of presidential electors of their own choosing.

          Let’s take this one step at a time and see what the oral argument on Wednesday signals about the Court’s intentions in Moore v. Harper. At the moment, it does not appear that five justices support the ISL theory in any of its iterations.

Concluding Thoughts.

          It would be impossible to acknowledge every group that contributed to Raphael Warnock’s victory, so I will instead share a story about Jessica Craven of Chop Wood, Carry Water that represents the spirit of everyone who gave selflessly of their time and resources. I hosted a Zoom call Tuesday at 6:00 PM Eastern to which Jessica Craven was invited. She sent a note saying that she could not attend because she was phone-banking to get out the vote in Georgia until 7:00 PM Eastern—when the polls closed! Jessica’s dedication is both remarkable and typical of the volunteers who worked to help elect Raphael Warnock. Thanks to everyone who, like Jessica, made great personal sacrifices to give Democrats a true majority in the Senate!

          I hope everyone will take some time to rest and recuperate—but if you are aware of ballot-curing efforts that are still taking place, please post them in the comments section of today’s newsletter. I will promote those opportunities to the top. Comments are open to everyone to share our joy and seek volunteers for any ongoing post-election work.

          Talk to you tomorrow!