INDEP legislature doctrine isl

===

6 23 6-3 ding dong tho just keep status quo wacko idea, tho roberts repair rep? see ISL 12 23 MI

https://www.mediamatters.org/laura-ingraham/laura-ingraham-attacks-supreme-court-independent-state-legislature-ruling

---

an 12 23

marc Elias — the election attorney who represented the Democratic National Committee in court for more than a decade — is warning that Republican state lawmakers are planning to deploy a "bogus legal theory" to challenge election results in a must-win battleground state.

In a post to his website Democracy Docket, Elias called attention to a Michigan lawsuit Republican legislators filed as a challenge to two constitutional amendments voters in the Mitten State approved in 2018 and 2022. The 2018 amendment expanded voter registration efforts and made it easier for voters to obtain ballots and vote by mail. The 2022 amendment expanded early voting in Michigan and further protected the validity of mail-in ballots.

"GOP plaintiffs and their attorneys want to lay a predicate now to contest the 2024 election. Just as former President Donald Trump and his allies did after the 2020 election, Republicans are planning on blaming the voting rules for why they lost," Elias wrote. "They will couple it with an attack on the courts and false claims of fraud."

The lawsuit against those two amendments is based on the Independent State Legislature (ISL) theory, which the Supreme Court of the United States (SCOTUS) already rejected in the 2022 Moore v. Harper case. That theory posits that state legislatures alone have the power to govern federal elections and and that state-level judges don't have the power to rule on anything pertaining to federal elections, including redistricting maps.

Elias wrote that even though SCOTUS already rejected the ISL theory, Republicans are hoping to have the case "remain pending and unresolved by Election Day 2024," in order to have a "cynical tool to claim election fraud and illegal voting rules robbed them of a fair outcome."

"It would give them a basis to contest the outcome of the Michigan results once again in court and Congress. When they fail, it will fuel their pathological election denialism," he wrote.

The 2018 and 2022 elections were particularly consequential for Michigan — voters in 2018 elected Gretchen Whitmer and Dana Nessel (the state's first Democratic governor and attorney general, respectively, since 2011). In 2022, Michiganders reelected both Whitmer and Nessel, and also gave Michigan its first Democratic-controlled legislature in decades. Michigan proved decisive in the last two presidential elections with its 15 electoral college votes going to Donald Trump in 2016 and to Joe Biden in 2020.

ben ginsberg?

amicus

20221026152027640_21-1271%20Moore%20v%20Harper%20%20Brief%20of%20Benjamin%20L%20Ginsberg%20as%20Amicus%20Curiae

Bob Bauer & Benjamin L. Ginsberg, Election officials need our legal help against repressive laws and personal threats, Wash. Post (Sep. 21, 2021) https://www.washington post.com/opinions/2021/09/07/bauer-ginsbergelection-official-legal-defense-network/ . . . . . . . . . . 23

Bob Bauer & Benjamin L. Ginsberg, Intimidation of election officials in Wisconsin has to stop. It is corrosive to our democracy., Milwaukee J. Sentinel (Dec. 10, 2021, 11:38 AM), https://www.jsonline.com/story/opinion/2021/12 /10/intimidation-wisconsin-election-officialscorrodes-democracy/6452887001/. . . . . . . . . . . . . . 23

an 3 23

no lnx

Why the GOP-dominated North Carolina Supreme Court is likely to uphold partisan gerrymandering: attorney

Alex Henderson

March 21, 2023

:{In February 2022, the North Carolina Supreme Court struck down a gerrymandered congressional map drawn by Republicans as a violation of the state's constitution. That case is Harper v. Hall, not to be confused with Moore v. Harper — a separate but related case that has gone all the way to the U.S. Supreme Court.

Since February 2022, there has been a sea change on the North Carolina Supreme Court — which is now dominated by Republicans and has decided to revisit Harper v. Hall. Attorney Shan Wu, a former federal prosecutor, fears that the justices are almost certain to restore the gerrymandered congressional map that was struck down 13 months ago.}:

In an op-ed published by the Daily Beast on March 21, Wu explains, "It’s still the North Carolina Supreme Court, but last year's state elections changed the Court's political majority from Democrat to Republican. Despite the fact that the political affiliation of judges is not a legal basis for overturning cases, that seems to be the only reason the case is being reheard. Sound familiar?"

READ MORE:The independent state legislature Supreme Court case could upend centuries of progress

:{Wu continues, "Recall the dissenting opinion by Supreme Court Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in Dobbs v. Jackson, where the majority struck down the precedent of Roe v. Wade that had stood for a half-century…. The new Republican majority of the North Carolina Supreme Court is following SCOTUS' lead by doing the same thing…. Only twice in the past 30 years has the (North Carolina) High Court granted requests for rehearings."

In law, the Latin term stare decisis means respect for precedent. It means "let the decision rest." When Sen. Susan Collins voted to confirm Justice Brett Kavanaugh to the U.S. Supreme Court in 2018, she insisted that he considered Roe v. Wade "settled law." But Collins was wrong. In 2022, Kavanaugh was among the justices who voted to overturn Roe in Dobbs v. Jackson Women's Health Organization; clearly, "stare decisis" was not a priority for Kavanaugh in that case.}:

On both the North Carolina Supreme Court and the U.S. Supreme Court, Wu argues, respect for precedent is falling by the wayside.

"The underlying rationales between the state and SCOTUS matters are the same: Republican majorities want the power to do what they please with election laws," the former federal prosecutor points out.

READ MORE:Robert Reich: Electoral College reform is 'urgent' as the Supreme Court considers 'bonkers' election theory

In Moore v. Harper, North Carolina Republicans are asking the U.S. Supreme Court to consider the "independent state legislature theory" — a far-right fringe legal concept claiming that only state legislatures should be allowed to make decisions on elections. According to the most severe form of ISL, a state's judicial and executive branches should be excluded from election-related decisions — only state legislators are allowed.

"The position taken in the North Carolina rehearing — as well as the ILST argument before SCOTUS —would eliminate the state courts and the governors, leaving only state legislatures to make these decisions," Wu observes. "Recognizing the impact of the North Carolina Supreme Court rehearings, SCOTUS has asked for additional briefing from both the Justice Department and the parties petitioning the nation's highest court for additional briefings on how the decision to rehear the cases may affect the decision in SCOTUS."

READ MORE: How John Roberts may slow-walk American democracy right off the cliff

Read Shan Wu’s full op-ed for the Daily Beast at this link.

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Fox News is covering up attempts by Trump allies to suppress voting in Georgia and other states

On September 1, Bloomberg News reported that a group called VoterGA, which is supported by Trump's disgraced former national security adviser Michael Flynn and election denier Patrick Byrne, “is challenging the eligibility of tens of thousands of Georgia voters” following the enactment of a law in 2021 that encouraged such challenges. According to Bloomberg, similar eligibility challenges are happening in Texas and Florida, “but the challenges in Georgia are the most extensive currently underway”:

The group, VoterGA, filed eight boxes Monday containing what its leader says are 37,500 challenges to voters in Gwinnett County, a once solidly Republican area of suburban Atlanta that has voted Democratic since 2016.

…

The Gwinnett challenges bring the total this election cycle to about 65,000, due largely to a 2021 overhaul of Georgia voting laws enacted in response to unfounded allegations of widespread fraud in 2020. The law effectively encouraged mass challenges of voter eligibility.

In the month and a half after the Georgia law was signed into effect, Fox News defended or advocated for these unnecessary voter restrictions in at least 270 separate segments. Despite Bloomberg’s recent reporting, the GOP’s allies at Fox News, including in its so-called “news” division, continued to defend the Georgia voter suppression law that made these mass voter eligibility challenges feasible. They also pretended that high early-voter turnout invalidated any accusations of voter suppression while failing to even mention the pattern of voter challenges:

During an October 9 Fox News Sunday interview with Democratic gubernatorial nominee Stacy Abrams, Fox anchor Shannon Bream tried to use a net increase in early voting as proof against Abrams' claims of Republican-led voter suppression, proclaiming that “a net increase of 763,380 voters … sounds like the opposite of voter suppression.”
Fox anchor Harris Faulkner presumptuously stated on October 19, “So no suppression there,” after presenting strong early-turnout numbers.
Fox host Sean Hannity claimed on October 20 that the high voter turnout was “debunking the media mob and the Democrats' false narrative that Georgia’s election law is Jim Crow 2.0.”
On October 26, Fox’s The Five co-host Geraldo Riverasaid that “it certainly seems unlikely that there is a climate of voter suppression” in Georgia “when you have this kind of record turnout.”
Fox anchor Bill Hemmer and Fox contributor Sean Duffy criticized Abrams on October 25 for calling out “barriers to access” from the 2021 Georgia law, again citing turnout numbers.

Right-wing media are already laying the groundwork for “scorched-earth legal tactics” to overturn midterm losses

On October 23, Rolling Stone reported on a Trump-directed plot “laying the groundwork to challenge the 2022 midterm election results” through a series of “in-person meetings and conference calls” in recent months where he and his Republican allies “often discuss the type of scorched-earth legal tactics they could deploy.” Rolling Stone reports that Trump is fixated on Pennsylvania, but there are “plans in multiple states.” From the article:

And they’ve gamed out scenarios for how to aggressively challenge elections, particularly ones in which a winner is not declared on Election Night. If there’s any hint of doubt about the winners, the teams plan to wage aggressive court campaigns and launch a media blitz. Trump himself set the blueprint for this on Election Night 2020, when — with the race far from decided — he went on national television to declare: “Frankly, we did win this election.”

Trump has been briefed on plans in multiple states and critical races — including in Georgia. But Pennsylvania has grabbed his interest most keenly, including in the Senate contest between Democrat John Fetterman and the Trump-endorsed GOP contender Mehmet Oz. If the Republican does not win by a wide enough margin to trigger a speedy concession from Fetterman — or if the vote tally is close on or after Election Night in November — Trump and other Republicans are already preparing to wage a legal and activist crusade against the “election integrity” of Democratic strongholds such as the Philly area.

An October 27 Associated Press report suggested this Trump tactic is already happening. According to the report, “more than 100 lawsuits have been filed this year” regarding the elections, “largely by Republicans” to target voting rules, registration, use of voting machines, and the counting of ballots. The AP stated that “the cases likely preview a potentially contentious post-election period,” and that unlike Trump’s attempts to overturn the 2020 election, this effort is much more organized:

The current effort, however, is more formalized, well-funded and well-organized and is run by the Republican National Committee and other legal allies with strong credentials. Party officials say they are preparing for recounts, contested elections and more litigation. Thousands of volunteers are ready to challenge ballots and search for evidence of malfeasance.

And as Media Matters senior fellow Matt Gertz explained on October 28, theright is already attacking the integrity of Pennsylvania’s elections, using a logjam created by the state's Republican-led state legislature as an excuse to question the validity of election results. Pennsylvania law prevents the counting of early mail-in ballots until Election Day, resulting in early tabulations that could show Republican candidates with a lead that decreases as mail-in ballots are tabulated over time. (This so-called “red mirage” phenomenon was extensively reported on in 2020.)

As if on cue, right-wing media are already lying that the Pennsylvania statewide races will be stolen by Democrats, using routine and expected delays in reporting the election results as an excuse:

On October 28, Hannity told Pennsylvania Republicans to “have poll watchers in every single location” due to delays in counting mail-in ballots forced by the Republican legislature.
On October 27, Terrance Bates of Real America’s Voice asked GOP Pennsylvania gubernatorial nominee Doug Mastriano if “the fix is in.”
Convicted criminal and former Trump strategist Steve Bannon declared on October 27 that “the only way” Democrat Josh Shapiro can win the Pennsylvania gubernatorial race “is to cheat.”
During an October 24 interview with Mastriano, radio host and campaign speaker Wendy Bell said Democrats are already “cheating” because they “lead in the early voting.”
Fox host Tucker Carlson said on October 26 that it would be “absurd” for voters to accept the Pennsylvania Senate election as legitimate if Fetterman wins.
Fox and talk radio host Mark Levinsaid on October 19: “They’re trying to steal the election for Fetterman.”

Trump and his allies are attempting to end early and mail-in voting in Pennsylvania

In addition to Trump’s reported focus on overturning Democratic victories in Pennsylvania, Semafor reported on October 18 that he and his allies are also working to change laws that allow for mail-in voting in the state, and that he’s already “woven talking points” from the campaign to overturn Pennsylvania’s mail-in voting law into his rallies in the state:

Former President Donald Trump is increasingly focused on changing voting rules in Pennsylvania, joining efforts to whip Republicans against a bipartisan mail-in voting law that’s become a Trump world obsession since he lost the state by over 80,000 votes.

Trump has spoken in recent weeks with allies who are leading a campaign to overturn the law, known as Act 77. Most recently, on September 6, he met with former Trump official Michael Caputo, Sam Faddis, a former CIA operations officer who ran for Congress in Maryland in 2016, and Pennsylvania county commissioner Doug McLinko at Trump Tower. Trump pledged to lend his support to their efforts, Faddis told Semafor.

In addition to lobbing the attacks on the integrity of Pennsylvania’s elections covered above, right-wing media personalities and allied groups have driven conspiracy theories about voter fraud in the state that are putting election workers and volunteers at risk of violence. Right-wing media are also targeting early mail-in ballots in other states, particularly Arizona. While Fox News has ignored reported examples of armed right-wing activists intimidating voters at ballot drop boxes, others are defending and supporting these risks to voters’ lives:

QAnon supporter Melody Jennings, who founded an organization backing an effort to monitor ballot drop boxes, has taken credit for people monitoring an Arizona drop box during the state’s primaries — which she called a “dry run” for the midterm general elections. This effort has led to multiple complaints of voter intimidation, including one case where armed men in camouflage have reportedly staked out a drop box in Maricopa County. Jennings defended this blatant example of voter intimidation.
On October 25, Bannon defended armed right-wing activists staking out drop boxes, saying: “It's not intimidation to put a set of eyeballs on these things — not intimidation.”
Bannon has also repeatedly hosted Jennings on his program so she can promote her organization and its mission to monitor ballot drop boxes.

Right-wing media have endorsed the radical “independent state legislature” theory, which would allow Republicans to steal future elections

Atlantic staff writer Barton Gellman, who has written extensively of Trump's attempts to subvert and even overthrow American democracy, reported in July about a Supreme Court case being pushed by Republicans that could result in the court giving state legislatures ultimate authority over elections, allowing them to disregard constitutions, court rulings, and existing state laws in order to abuse election administration or alter results. As Gellman explained, it’s a “genuinely radical proposition” that “has never been accepted by any state or federal court.” From Gellman’s July 29 article in The Atlantic:

Republican lawyers, taking note of their structural advantage among battleground-state lawmakers, set forth the “independent state legislature” (ISL) doctrine. The doctrine is based on a tendentious reading of two constitutional clauses, which assign control of the “Manner” of congressional elections and the appointment of presidential electors in each state to “the Legislature thereof.” Based on that language, the doctrine proposes that state lawmakers have virtually unrestricted power over elections and electors. State courts and state constitutions, by this reading, hold no legitimate authority over legislatures in the conduct of their U.S. constitutional functions.

…

The immediate question in Moore is whether the state supreme court, applying the state constitution, can override the legislature’s choice on the manner of drawing election districts. (Until ISL came along, the long-standing answer was “yes.”) But advocates of the independent-state-legislature doctrine have their eyes on a bigger prize: the presidency.

If you give the legislature a blank check on the manner of appointing presidential electors, then a Republican majority could—in the most muscular version of ISL—simply disregard a Biden victory in the state’s popular vote and appoint Trump electors instead.

Fox News personalities approved of the 2020 attempt by Trump to use this bogus legal theory to overturn election results in swing states. Fox host Mark Levin was particularly aggressive in pushing this approach, and his eagerness to end American democracy via the independent state legislature theory has continued unabated in recent weeks. Other conservative media figures have defended it as well:

Levin has repeatedly claimed that the independent state legislature theory is just a straightforward reading of the U.S. Constitution, even though it has never been accepted by a court. On September 30, Levin said that “even a relatively illiterate person can read that the state legislatures, specifically the legislature, determine the election processes by which electors are chosen to be president and vice president.” On October 3, Levin ranted: “‘Oh, that's the independent state legislature theory.’ No, that's what it says in the Constitution.” And on October 25, Levin even cut voters out of the loop on how presidential electors are chosen: “Article 2, section 1, Clause 2 of the Constitution, which we've talked about endlessly, provides, simply put, that the state legislatures shall determine how electors are chosen. It says legislatures. Doesn't say governors, doesn't say lower courts, doesn't say federal courts. Doesn't say voters. Legislatures.”
On October 25, radio host Sebastian Gorka mocked Hillary Clinton for warning about the independent state legislature theory.
Fox host Jesse Watters**s**imilarly attacked Clinton on October 25, accusing her of “undermining faith in our democracy” with her warning.

[https://www.alternet.org/2022/10/scotus-republicans-end-democratic-presidencies/](===

https://www.alternet.org/2022/10/scotus-republicans-end-democratic-presidencies/

The%20Supreme%20Court%20may%20be%20within%20a%20few%20months%20of%20ending%20democracy%20in%20the%20United%20States%20and%20turning%20the%20White%20House%20over%20to%20a%20group%20of%20billionaires%20who’ve%20already%20funded%20the%20GOP%20takeover%20of%20multiple%20state%20legislatures.

But%20don’t%20just%20take%20my%20word%20for%20it.%20Consider%20these%20sources:

Law%20&%20Crime:%20Election%20Law%20Experts%20Sound%20the%20Alarm%20About%20‘Extremely%20Dangerous’%20Voting%20Rights%20Case%20the%20Supreme%20Court%20Just%20Agreed%20to%20Hear

Demand%20Justice:%20Republican%20Supreme%20Court%20to%20Decide%20If%20Democrats%20Are%20Allowed%20to%20Win%20Elections%20Anymore

The%20Atlantic:%20Is%20Democracy%20Constitutional?

MSNBC:%20Moore%20v.%20Harper%20Could%20Upend%20Elections%20as%20We%20Know%20Them

And%20Moore%20v%20Harper%20is%20just%20the%20latest%20in%20a%20long%20string%20of%20naked%20assaults%20on%20American%20democracy%20and%20the%20rights%20of%20average%20American%20citizens,%20particularly%20when%20they%20conflict%20with%20the%20rights%20of%20billionaires%20and%20giant%20corporations.

So,%20how%20the%20hell%20did%20we%20end%20up%20here?

Of%20the%20six-vote%20hard-right%20majority%20on%20the%20Supreme%20Court,%20only%20one%20of%20them%20was%20appointed%20by%20a%20president%20who%20actually%20won%20his%20election%20%28Thomas:%20Bush%20Sr.%29.%20The%20other%20five%20were%20appointed%20by%20George%20W.%20Bush%20%28lost%20in%202000%20by%20about%20a%20half-million%20votes%29%20and%20Trump%20%28lost%20in%202016%20by%20over%203%20million%20votes%29.

The%20urgency%20and%20ferocity%20with%20which%20they’re%20ripping%20our%20Constitution%20to%20shreds%20seems%20driven%20by%20their%20knowledge%20of%20their%20own%20illegitimacy.

Republican%20appointees%20across%20our%20federal%20court%20system%20are%20trying%20to%20“deconstruct%20the%20administrative%20state”%20of%20America,%20to%20quote%20Steve%20Bannon.%20Most%20recently,%20the%20majority-Trump-appointed%205th%20Circuit%20Court%20of%20Appeals%20ruled%20this%20week%20that%20the%20Consumer%20Financial%20Protection%20Bureau’s%20funding%20mechanism%20is%20unconstitutional.%20That%20case%20will%20appear%20at%20the%20Supreme%20Court%20soon,%20in%20all%20probability.

The%20most%20concerning%20case%20right%20now,%20however,%20is%20Moore%20v%20Harper%20which%20considers%20the%20bizarre%20theory%20Trump%20was%20pushing%20Pence%20to%20accept,%20that%20voters%20don’t%20determine%20who%20becomes%20president%20via%20the%20Electoral%20College%20but%20that%20individual%20state%20legislatures%20can%20simply%20award%20their%20Electoral%20votes%20to%20whichever%20candidate%20strikes%20their%20fancy.

It’s%20loosely%20based%20on%20language%20in%20the%20Constitution,%20but%20defies%20two%20centuries%20of%20precedent%20and%20turns%20pretty%20much%20every%20part%20of%20elections%20over%20to%20state%20legislatures%20with%20no%20oversight%20whatsoever%20by%20either%20governors%20or%20the%20people,%20and%20can’t%20be%20appealed%20to%20any%20court,%20including%20the%20Supreme%20Court.

Judge%20Michael%20Luttig%20—%20the%20famous%20and%20credible%20conservative%20judge,%20the%20Edmund%20Burke%20of%20this%20era%20—%20has%20joined%20the%20team%20fighting%20the%20potential%20outcome%20of%20this%20decision.

Luttig%20suggests%20this%20theory,%20if%20adopted%20by%20the%20Court,%20could%20very%20well%20signal%20the%20end%20of%20Democratic%20presidents%20so%20long%20as%20more%20than%2025%20of%20our%2050%20states%20have%20Republican-controlled%20legislatures%20%28and%20their%20governors%20can’t%20even%20veto%20their%20legislatures,%20according%20to%20this%20theory%29.%20Today%2030%20states’%20legislatures%20are%20fully%20under%20GOP%20control,%20up%20from%2014%20in%202009.

Luttig,%20the%20elders%20among%20us%20may%20remember,%20personally%20ran%20Clarence%20Thomas’%20Supreme%20Court%20hearing%20and%20worked%20for%20years%20side-by-side%20with%20John%20Roberts%20in%20the%20Reagan%20Justice%20Department.%20He’s%20friends%20with%20both%20men%20and%20is%20considered%20one%20of%20the%20top%20conservative%20judges%20in%20contemporary%20America.

The%20“Independent%20State%20Legislature%20theory”%20at%20the%20core%20of%20Moore%20v%20Harper%20is,%20according%20to%20Luttig:

[A]ntithetical%20to%20the%20Framers’%20intent,%20the%20text,%20and%20the%20Constitution’s%20fundamental%20design%20and%20architecture.

But%20that’s%20just%20the%20beginning%20of%20the%20out-of-control%20and%20dangerous%20behavior%20of%20the%20far-right%20radicals%20on%20today’s%20court.%20Since%20there’s%20been%20a%20conservative%20majority%20on%20the%20Court%20it%20has,%20among%20other%20things:

*Handed%20the%202000%20election%20to%20George%20W.%20Bush

*Radically%20cut%20back%20the%20rights%20of%20unions%20to%20organize%20and%20represent%20workers

*Declared%20that%20billionaires%20buying%20politicians%20is%20merely%20“free%20speech”

*Gutted%20the%20power%20of%20the%20EPA%20to%20regulate%20planet-destroying%20carbon%20pollution

*And%20ripped%20the%20heart%20out%20of%20both%20the%20Civil%20Rights%20Act%20and%20the%20Voting%20Rights%20Act.

In%20just%20the%20past%20year%20this%20Court,%20now%20stacked%20with%203%20new%20and%20deeply%20unqualified%20%28but%20young!%29%20hard-right%20Trump-humping%20activists,%20has%20already%20ruled%20to:

*End%20the%206th%20Amendment%20right%20of%20prisoners%20to%20challenge%20convictions%20when%20their%20lawyers%20were%20demonstrably%20corrupt%20or%20incompetent%20%28Shinn%20v%20Ramirez.%20In%20her%20dissent,%20Justice%20Sotomayor%20wrote,%20“The%20Court’s%20decision%20will%20leave%20many%20people%20who%20were%20convicted%20in%20violation%20of%20the%20Sixth%20Amendment%20to%20face%20incarceration%20or%20even%20execution%20without%20any%20meaningful%20chance%20to%20vindicate%20their%20right%20to%20counsel.”

*Further%20gut%20Americans’%20right%20to%20vote.%20In%203%20separate%20cases,%20Merrill%20v%20Milligan,%20Wisconsin%20Legislature%20v.%20Wisconsin%20Elections%20Commission,%20and%20Ardoin%20v.%20Robinson%20the%20six%20rightwing%20justices%20endorsed%20three%20separate%20Republican%20gerrymanders%20and%20voting%20maps%20in%20Wisconsin,%20Louisiana,%20and%20Alabama%20that%20were%20each%20unabashedly%20based%20on%20efforts%20to%20enhance%20the%20electoral%20power%20of%20white%20voters.

*Remove%20from%20US%20citizens%20who%20move%20to%20%28or%20live%20in%29%20Puerto%20Rico%20the%20right%20to%20receive%20certain%20Social%20Security%20benefits%20in%20their%20US%20v%20Vaello-Madero%20case.%20Whacking%20the%20rights%20of%20over%20300,000%20Americans%20living%20in%20PR,%20the%20six%20crazies%20on%20the%20Court%20ruled%20that%20only%20Congress%20could%20fix%20the%20damage%20they%20themselves%20were%20doing.%20The%20problem%20with%20that,%20as%20Justice%20Sonia%20Sotomayor%20pointed%20out%20in%20her%20dissent,%20is%20that%20because%20PR%20isn’t%20yet%20a%20state%20and%20has%20no%20member%20of%20Congress%20to%20fight%20on%20their%20behalf%20the%20Court%20was%20simply%20“punishing%20disparities%20suffered%20by%20citizen%20residents%20of%20Puerto%20Rico%20under%20Congress’%20unequal%20treatment.”

*Take%20away%20your%20Miranda%20rights%20to%20remain%20silent,%20avoid%20self-incrimination,%20and%20know%20you%20have%20access%20to%20a%20lawyer.%20Americans%20cannot,%20the%206%20“conservatives”%20on%20the%20Court%20ruled%20in%20Vega%20v.%20Tekoh,%20sue%20police%20officers%20who%20fail%20to%20tell%20them%20their%20Miranda%20rights.

*Eliminate%20many%20non-citizens’%20rights%20under%20the%20Constitution%20when%20abused%20by%20the%20federal%20government.%20While%20the%20Constitution%20refers%20to%20“persons”%20rather%20than%20“citizens”%20in%20most%20critical%20places%20%28like%20the%2014th%20Amendment%20guaranteeing%20equal%20protection%20under%20the%20law%29,%20the%20Court%20decided%20in%20two%20cases,%20Garland%20v.%20Gonzalez%20and%20in%20Johnson%20v.%20Arteaga-Martinez,%20that%20noncitizens%20often%20are%20not%20entitled%20to%20bond%20hearings%20or%20class-wide%20injunctive%20relief%20when%20screwed%20by%20the%20feds.

*Rip%20away%204th%20Amendment%20privacy%20rights%20against%20unreasonable%20search%20and%20seizure%20for%20all%20persons%20living%20within%20100%20miles%20of%20an%20ocean%20or%20our%20borders%20with%20Mexico%20or%20Canada%20%28that’s%20two%20out%20of%20three%20American%20citizens%20–%20even%20here%20in%20Portland,%20I’m%20within%20100%20miles%20of%20the%20Pacific%20Ocean%29.%20In%20Egbert%20v%20Boule,%20the%20six%20rightwingers%20on%20the%20Court%20ruled%20that%20border%20patrol%20and%20other%20federal%20officers%20can%20search%20you,%20your%20home,%20or%20your%20vehicle%20for%20any%20old%20reason%20they%20want%20because%20you%20live%20in%20the%20vicinity%20of%20a%20border%20or%20ocean%20and%20they%20consider%20you%20suspicious.%20No%20warrant%20necessary%20anymore.

*Give%20police%20officers%20who%20use%20excessive%20force%20immunity%20from%20accountability.%20In%20Rivas-Villegas%20v.%20Cortesluna%20and%20City%20of%20Tahlequah,%20OK%20v.%20Bond%20the%20Court%20upheld%20its%20own%20invention,%20the%20doctrine%20of%20“qualified%20immunity,”%20that%20makes%20it%20almost%20impossible%20to%20sue%20cops%20when%20they%20wail%20on%20you%20or%20even%20kill%20you%20%28in%20the%20Tahlequah%20case%20they%20killed%20a%20man%20in%20his%20own%20garage%29%20for%20little%20or%20no%20reason.

*Kill%20the%20power%20of%20the%20EPA%20under%20the%20Clean%20Air%20Act%20to%20regulate%20carbon%20pollution%20or%20protect%20communities%20from%20having%20their%20water%20supplies%20poisoned%20by%20industry%20seeking%20profits.%20West%20Virginia%20v%20EPA%20ended%20that%20agency’s%20power%20to%20regulate%20carbon%20dioxide%20in%20our%20atmosphere,%20and%20Louisiana%20v%20American%20Rivers%20handed%20polluters,%20overturning%2050%20years%20of%20precedent,%20the%20power%20to%20overrule%20states’%20and%20tribes’%20rules%20against%20pollution%20of%20their%20waterways.

That%20was%20last%20year,%20and%20apparently%20it%20was%20just%20a%20warm-up:

*Now%20the%20Court,%20in%20addition%20to%20taking%20on%20Moore%20v%20Harper%20that%20could%20guarantee%20no%20Democrat%20in%20our%20lifetimes%20will%20ever%20again%20become%20president,%20is%20planning%20to%20take%20a%20second%20large%20bite%20out%20of%20the%20Voting%20Rights%20Act%20in%20Merrill%20v%20Mulligan.

*In%20Students%20for%20Fair%20Admissions%20v.%20Harvard%20and%20Students%20for%20Fair%20Admission%20v.%20University%20of%20North%20Carolina%20the%206-judge%20majority%20will%20probably%20end%20affirmative%20action.

*In%20Kennedy%20v.%20Bremerton%20School%20District%20the%20Court%20allowed%20a%20coach%20to%20impose%20prayer%20on%20public%20school%20students%20because%20“religious%20liberty.”

*Even%20as%20guns%20have%20become%20the%20leading%20cause%20of%20death%20among%20American%20children%20and%20gun-related%20crime%20is%20washing%20over%20our%20country%20like%20a%20poisonous%20bloody%20tide,%20the%20Court%20is%20preparing%20to%20unleash%20even%20more%20weapons%20on%20our%20nation%20by%20gutting%20gun%20owner%20licensure%20laws%20in%20New%20York%20State%20Rifle%20&%20Pistol%20Association%20v.%20Bruen.

Virtually%20every%20one%20of%20these%20decisions%20are%20or%20will%20be%20based%20on%20the%20power%20the%20Court%20gave%20itself%20to%20overturn%20laws%20passed%20by%20Congress%20and%20signed%20by%20the%20President%20in%20its%201803%20Marbury%20v%20Madison%20case.

That%20case%20caused%20such%20a%20backlash%20that%20the%20next%20time%20the%20Court%20ruled%20on%20a%20major%20constitutional%20issue%20was%20in%201856%20with%20Dred%20Scott%20v%20Sanford,%20which%20arguably%20kicked%20off%20the%20Civil%20War%20and%20President%20Lincoln%20refused%20to%20recognize.

From%20the%20founding%20of%20our%20republic%20until%20the%20post-Reconstruction%20era,%20the%20Court%20rarely%20ruled%20to%20strike%20down%20or%20modified%20laws%20based%20on%20their%20reading%20of%20Constitution.%20Mostly%20it%20just%20did%20its%20job%20as%20the%20final%20court%20of%20appeals;%20after%20all,%20the%20buck%20has%20to%20stop%20somewhere.

That’s%20how%20it’s%20designed%20in%20the%20Constitution:%20when%20different%20judges%20disagree%20or%20cases%20go%20back-and-forth%20on%20appeal,%20the%20Supreme%20Court%20makes%20the%20final%20decision%20about%20who%20wins%20and%20who%20loses.

Back%20in%20the%20early%20days%20of%20the%20republic%20the%20Court%20was%20sometimes%20referred%20to%20as%20the%20“chickens%20and%20dogs%20court”%20because%20so%20many%20cases%20had%20to%20do%20with%20disputes%20between%20farmers%20%28most%20of%20America%20was%20agricultural%20at%20the%20time%29.

The%20idea%20of%20deciding%20cases%20on%20the%20basis%20of%20the%20Constitution%20was%20considered%20exotic%20or%20bizarre,%20and%20the%20idea%20of%20striking%20down%20laws%20made%20by%20Congress%20and%20signed%20by%20the%20president%20was%20so%20unthinkable%20it%20was%20only%20done%20twice%20in%20major%20cases%20during%20the%20first%20century%20of%20this%20nation’s%20history.

When%20the%20Court%20voted%20in%201803%20to%20give%20itself%20the%20power%20to%20claim%20the%20Constitution%20as%20its%20excuse%20to%20overturn%20Congress’%20laws,%20then-President%20Jefferson%20reflected%20the%20outrage%20of%20the%20nation.

There%20is%20literally%20nothing%20in%20the%20Constitution%20that%20gives%20the%20Supreme%20Court%20the%20exclusive%20right%20to%20decide%20what%20the%20Constitution%20says%20or%20means%20and%20impose%20it%20on%20the%20other%20two%20branches%20of%20government,%20or%20on%20the%20rest%20of%20America.%20That%20is%20a%20power%20the%20Supreme%20Court%20took%20onto%20itself%20in%20that%201803%20decision%20of%20its%20own,%20Marbury%20v%20Madison.

It%20was%20such%20a%20radical%20step%20that%20it%20drove%20then-President%20Jefferson%20to%20declare:

[O]ur%20Constitution…has%20given%20—%20according%20to%20this%20opinion%20—%20to%20one%20of%20[the%20three%20branches%20of%20government]%20alone%20the%20right%20to%20prescribe%20rules%20for%20the%20government%20of%20the%20others;%20and%20to%20that%20one,%20too,%20which%20is%20unelected%20by%20and%20independent%20of%20the%20nation…

The%20Constitution,%20on%20this%20hypothesis,%20is%20a%20mere%20thing%20of%20wax%20in%20the%20hands%20of%20the%20Judiciary%20which%20they%20may%20twist%20and%20shape%20into%20any%20form%20they%20please.

The%20popular%20outrage%20was%20so%20intense%20that,%20after%20that%201803%20Marbury%20decision,%20the%20Supreme%20Court%20only%20ruled%20twice%20between%20the%20founding%20of%20our%20nation%20and%20the%201860s%20on%20a%20constitutional%20issue,%20and%20in%20each%20case%20both%20Congress%20and%20the%20president%20at%20the%20time%20ignored%20the%20ruling.

The%20first%20was%20President%20Andrew%20Jackson%20when%20the%20Court%20ruled%20the%20Second%20National%20Bank%20was%20constitutional%20and%20Jackson%20shut%20it%20down%20anyway,%20claiming%20it%20wasn’t.%20He%20said:

The%20Congress,%20the%20Executive,%20and%20the%20Court%20must%20each%20for%20itself%20be%20guided%20by%20its%20own%20opinion%20of%20the%20Constitution.%20Each%20public%20officer%20who%20takes%20an%20oath%20to%20support%20the%20Constitution%20swears%20that%20he%20will%20support%20it%20as%20he%20understands%20it,%20and%20not%20as%20it%20is%20understood%20by%20others…%20The%20opinion%20of%20the%20judges%20has%20no%20more%20authority%20over%20Congress%20than%20the%20opinion%20of%20Congress%20has%20over%20the%20judges,%20and%20on%20that%20point%20the%20President%20is%20independent%20of%20both.

A%20generation%20later,%20President%20Abraham%20Lincoln%20chose%20to%20explicitly%20ignore%20the%20Supreme%20Court’s%20expansion%20of%20chattel%20slavery%20in%20its%201856%20Dred%20Scott%20v%20Sanford%20decision,%20as%20did%20Congress,%20and%20even%20went%20on%20to%20free%20enslaved%20Americans%20before%20the%20Court%20could%20weigh%20in%20again.

Instead%20of%20putting%20the%20Supreme%20Court%20in%20charge%20of%20American%20laws,%20the%20Framers%20of%20the%20Constitution%20did%20the%20opposite:%20they%20put%20Congress%20in%20charge%20of%20the%20Supreme%20Court.

As%20they%20wrote%20in%20Article%203,%20Section%202%20of%20the%20Constitution:

[T]he%20Supreme%20Court%20shall%20have%20appellate%20jurisdiction,%20both%20as%20to%20law%20and%20fact,%20with%20such%20Exceptions,%20and%20under%20such%20Regulations%20as%20the%20Congress%20shall%20make.

Republicans%20know%20this%20well.%20When%20John%20Roberts%20worked%20as%20an%20attorney%20for%20Ronald%20Reagan,%20he%20suggested%20that%20both%20Brown%20v%20Board%20and%20Roe%20v%20Wade%20could%20be%20overturned%20by%20Congress%20by%20simply%20stripping%20from%20the%20Court%20the%20power%20to%20decide%20on%20issues%20of%20race%20or%20abortion%20%28as%20I%20detail%20in%20The%20Hidden%20History%20of%20the%20Supreme%20Court%20and%20the%20Betrayal%20of%20America%29.

Most%20recently,%20in%20the%20wake%20of%20the%20Obergefell%20gay%20marriage%20decision,%20Republicans%20in%20Congress%20offered%20a%20law%20stripping%20from%20the%20Court%20its%20power%20to%20rule%20that%20gay%20people%20could%20get%20married.%20The%20Marriage%20Protection%20Act,%20which%20passed%20the%20House%20of%20Representatives%20on%20July%2022,%202004%20but%20failed%20in%20the%20Senate,%20explicitly%20says:

No%20court%20created%20by%20Act%20of%20Congress%20shall%20have%20any%20jurisdiction,%20and%20the%20Supreme%20Court%20shall%20have%20no%20appellate%20jurisdiction,%20to%20hear%20or%20decide%20any%20question%20pertaining%20to%20the%20interpretation%20of,%20or%20the%20validity%20under%20the%20Constitution%20of,%20section%201738C%20or%20this%20section.

While%20this%20sort%20of%20court-stripping%20is%20likely%20to%20meet%20resistance%20both%20from%20Congress%20and%20from%20the%20Supreme%20Court,%20a%20much%20easier%20step%20is%20to%20simply%20reduce%20the%20power%20of%20the%20Court%20to%20go%20off%20on%20these%20wild%20excursions%20based%20on%20their%20mind-reading%20of%20the%20Founders.

That%20could%20be%20accomplished%20by%20Congress%20creating%20an%20“regulation”%20for%20the%20Court%20that%20says%20all%20decisions%20involving%20Constitutional%20matters%20must%20be%20decided%20by%20consensus%20%28the%20most%20strict%29%20or%20with%20no%20fewer%20than%207%20out%20of%209%20notes.

Other%20options%20include%20expanding%20the%20size%20of%20the%20Court,%20term-limiting%20the%20Court,%20or%20—%20what%20FDR%20had%20proposed%20—%20moving%20all%20over-70%20justices%20%28Alito,%20Thomas,%20and%20Roberts%20in%203%20years%29%20to%20“emeritus”%20status%20so%20they%20can%20continue%20to%20participate%20in%20deliberations%20but%20lose%20their%20vote%20%28or%20all%20the%20emeritus%20members’%20votes%20are%20consolidated%20into%20one%20when%20there’s%20consensus%29.

Republicans%20are%20already%20talking%20out%20loud%20about%20state%20legislatures%20legally%20handing%20the%202024%20election%20to%20Trump%20or%20DeSantis%20regardless%20of%20who%20wins,%20no%20insurrection%20necessary%20this%20time,%20because%20they’re%20assuming%20the%20Court%20will%20rule%20their%20way.

So,%20with%20Moore%20v%20Harper%20and%20even%20more%20toxic%20and%20democracy-hobbling%20or%20even%20democracy-destroying%20decisions%20coming%20before%20the%20Court,%20what%20can%20we%20do?

At%20the%20very%20least,%20Congress%20should%20mandate%20that%20the%20Court%20abide%20by%20the%20same%20ethics%20rules%20that%20every%20other%20federal%20court%20and%20judge%20must%20follow,%20and%20that%20all%20arguments%20and%20decisions%20be%20televised.%20This%20would%20increase%20the%20power%20of%20dissenters%20on%20the%20Court%20and%20raise%20the%20integrity-focusing%20power%20of%20the%20spotlight%20of%20public%20opinion.

All%20of%20these%20options%20are%20within%20the%20power%20of%20Congress,%20should%20it%20choose%20to%20end%20the%20filibuster%20and%20exercise%20that%20power.

Whatever%20strategy%20Democratic%20leadership%20and%20the%20Biden%20administration%20choose,%20America%20is%20today%20in%20the%20midst%20of%20a%20severe%20constitutional%20crisis%20and%20action%20is%20needed%20right%20now%20or,%20at%20the%20very%20least,%20in%20the%20weeks%20immediately%20after%20this%20November’s%20election.

If%20we%20fail,%202024%20may%20be%20this%20nation’s%20last%20election%20for%20president.

===)

The Supreme Court may be within a few months of ending democracy in the United States and turning the White House over to a group of billionaires who’ve already funded the GOP takeover of multiple state legislatures

But don’t just take my word for it. Consider these sources:

Law & Crime: Election Law Experts Sound the Alarm About ‘Extremely Dangerous’ Voting Rights Case the Supreme Court Just Agreed to Hear

Demand Justice: Republican Supreme Court to Decide If Democrats Are Allowed to Win Elections Anymore

The Atlantic: Is Democracy Constitutional?

MSNBC: Moore v. Harper Could Upend Elections as We Know Them

And Moore v Harper is just the latest in a long string of naked assaults on American democracy and the rights of average American citizens, particularly when they conflict with the rights of billionaires and giant corporations.

So, how the hell did we end up here?

Of the six-vote hard-right majority on the Supreme Court, only one of them was appointed by a president who actually won his election (Thomas: Bush Sr.). The other five were appointed by George W. Bush (lost in 2000 by about a half-million votes) and Trump (lost in 2016 by over 3 million votes).

The urgency and ferocity with which they’re ripping our Constitution to shreds seems driven by their knowledge of their own illegitimacy.

Republican appointees across our federal court system are trying to “deconstruct the administrative state” of America, to quote Steve Bannon. Most recently, the majority-Trump-appointed 5th Circuit Court of Appeals ruled this week that the Consumer Financial Protection Bureau’s funding mechanism is unconstitutional. That case will appear at the Supreme Court soon, in all probability.

The most concerning case right now, however, isMoore v Harper which considers the bizarre theory Trump was pushing Pence to accept, that voters don’t determine who becomes president via the Electoral College but that individual state legislatures can simply award their Electoral votes to whichever candidate strikes their fancy.

It’s loosely based on language in the Constitution, but defies two centuries of precedent and turns pretty much every part of elections over to state legislatures with no oversight whatsoever by either governors or the people, and can’t be appealed to any court, including the Supreme Court.

Judge Michael Luttig — the famous and credible conservative judge, the Edmund Burke of this era — has joined the team fighting the potential outcome of this decision.

Luttig suggests this theory, if adopted by the Court, could very well signal the end of Democratic presidents so long as more than 25 of our 50 states have Republican-controlled legislatures (and their governors can’t even veto their legislatures, according to this theory). Today 30 states’ legislatures are fully under GOP control, up from 14 in 2009.

Luttig, the elders among us may remember, personally ran Clarence Thomas’ Supreme Court hearing and worked for years side-by-side with John Roberts in the Reagan Justice Department. He’s friends with both men and is considered one of the top conservative judges in contemporary America.

The “Independent State Legislature theory” at the core of Moore v Harper is, according to Luttig:

[A]ntithetical to the Framers’ intent, the text, and the Constitution’s fundamental design and architecture.

But that’s just the beginning of the out-of-control and dangerous behavior of the far-right radicals on today’s court. Since there’s been a conservative majority on the Court it has, among other things:

*Handed the 2000 election to George W. Bush

*Radically cut back the rights of unions to organize and represent workers

*Declared that billionaires buying politicians is merely “free speech”

*Gutted the power of the EPA to regulate planet-destroying carbon pollution

*And ripped the heart out of both the Civil Rights Act and the Voting Rights Act.

In just the past year this Court, now stacked with 3 new and deeply unqualified (but young!) hard-right Trump-humping activists, has already ruled to:

*End the 6th Amendment right of prisoners to challenge convictions when their lawyers were demonstrably corrupt or incompetent (Shinn v Ramirez. In her dissent, Justice Sotomayor wrote, “The Court’s decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel.”

*Further gut Americans’ right to vote. In 3 separate cases, Merrill v Milligan, Wisconsin Legislature v. Wisconsin Elections Commission, and Ardoin v. Robinson the six rightwing justices endorsed three separate Republican gerrymanders and voting maps in Wisconsin, Louisiana, and Alabama that were each unabashedly based on efforts to enhance the electoral power of white voters.

*Remove from US citizens who move to (or live in) Puerto Rico the right to receive certain Social Security benefits in their US v Vaello-Madero case. Whacking the rights of over 300,000 Americans living in PR, the six crazies on the Court ruled that only Congress could fix the damage they themselves were doing. The problem with that, as Justice Sonia Sotomayor pointed out in her dissent, is that because PR isn’t yet a state and has no member of Congress to fight on their behalf the Court was simply “punishing disparities suffered by citizen residents of Puerto Rico under Congress’ unequal treatment.”

*Take away your Miranda rights to remain silent, avoid self-incrimination, and know you have access to a lawyer. Americans cannot, the 6 “conservatives” on the Court ruled in Vega v. Tekoh, sue police officers who fail to tell them their Miranda rights.

*Eliminate many non-citizens’ rights under the Constitution when abused by the federal government. While the Constitution refers to “persons” rather than “citizens” in most critical places (like the 14th Amendment guaranteeing equal protection under the law), the Court decided in two cases, Garland v. Gonzalez and in Johnson v. Arteaga-Martinez, that noncitizens often are not entitled to bond hearings or class-wide injunctive relief when screwed by the feds.

*Rip away 4th Amendment privacy rights against unreasonable search and seizure for all persons living within 100 miles of an ocean or our borders with Mexico or Canada (that’s two out of three American citizens – even here in Portland, I’m within 100 miles of the Pacific Ocean). In Egbert v Boule, the six rightwingers on the Court ruled that border patrol and other federal officers can search you, your home, or your vehicle for any old reason they want because you live in the vicinity of a border or ocean and they consider you suspicious. No warrant necessary anymore.

*Give police officers who use excessive force immunity from accountability. In Rivas-Villegas v. Cortesluna and City of Tahlequah, OK v. Bond the Court upheld its own invention, the doctrine of “qualified immunity,” that makes it almost impossible to sue cops when they wail on you or even kill you (in the Tahlequah case they killed a man in his own garage) for little or no reason.

*Kill the power of the EPA under the Clean Air Act to regulate carbon pollution or protect communities from having their water supplies poisoned by industry seeking profits. West Virginia v EPA ended that agency’s power to regulate carbon dioxide in our atmosphere, and Louisiana v American Rivers handed polluters, overturning 50 years of precedent, the power to overrule states’ and tribes’ rules against pollution of their waterways.

That was last year, and apparently it was just a warm-up:

*Now the Court, in addition to taking on Moore v Harper that could guarantee no Democrat in our lifetimes will ever again become president, is planning to take a second large bite out of the Voting Rights Act in Merrill v Mulligan.

*In Students for Fair Admissions v. Harvard and Students for Fair Admission v. University of North Carolina the 6-judge majority will probably end affirmative action.

*In Kennedy v. Bremerton School District the Court allowed a coach to impose prayer on public school students because “religious liberty.”

*Even as guns have become the leading cause of death among American children and gun-related crime is washing over our country like a poisonous bloody tide, the Court is preparing to unleash even more weapons on our nation by gutting gun owner licensure laws in New York State Rifle & Pistol Association v. Bruen.

Virtually every one of these decisions are or will be based on the power the Court gave itself to overturn laws passed by Congress and signed by the President in its 1803 Marbury v Madison case.

That case caused such a backlash that the next time the Court ruled on a major constitutional issue was in 1856 with Dred Scott v Sanford, which arguably kicked off the Civil War and President Lincoln refused to recognize.

From the founding of our republic until the post-Reconstruction era, the Court rarely ruled to strike down or modified laws based on their reading of Constitution. Mostly it just did its job as the final court of appeals; after all, the buck has to stop somewhere.

That’s how it’s designed in the Constitution: when different judges disagree or cases go back-and-forth on appeal, the Supreme Court makes the final decision about who wins and who loses.

Back in the early days of the republic the Court was sometimes referred to as the “chickens and dogs court” because so many cases had to do with disputes between farmers (most of America was agricultural at the time).

The idea of deciding cases on the basis of the Constitution was considered exotic or bizarre, and the idea of striking down laws made by Congress and signed by the president was so unthinkable it was only done twice in major cases during the first century of this nation’s history.

When the Court voted in 1803 to give itself the power to claim the Constitution as its excuse to overturn Congress’ laws, then-President Jefferson reflected the outrage of the nation.

There is literally nothing in the Constitution that gives the Supreme Court the exclusive right to decide what the Constitution says or means and impose it on the other two branches of government, or on the rest of America. That is a power the Supreme Court took onto itself in that 1803 decision of its own, Marbury v Madison.

It was such a radical step that it drove then-President Jefferson to declare:

[O]ur Constitution…has given — according to this opinion — to one of [the three branches of government] alone the right to prescribe rules for the government of the others; and to that one, too, which is unelected by and independent of the nation…

The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary which they may twist and shape into any form they please.

The popular outrage was so intense that, after that 1803 Marbury decision, the Supreme Court only ruled twice between the founding of our nation and the 1860s on a constitutional issue, and in each case both Congress and the president at the time ignored the ruling.

The first was President Andrew Jackson when the Court ruled the Second National Bank was constitutional and Jackson shut it down anyway, claiming it wasn’t. He said:

The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others… The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.

A generation later, President Abraham Lincoln chose to explicitly ignore the Supreme Court’s expansion of chattel slavery in its 1856 Dred Scott v Sanford decision, as did Congress, and even went on to free enslaved Americans before the Court could weigh in again.

Instead of putting the Supreme Court in charge of American laws, the Framers of the Constitution did the opposite: they put Congress in charge of the Supreme Court.

As they wrote in Article 3, Section 2 of the Constitution:

[T]he Supreme Court shall have appellate jurisdiction, both as to law and fact, with such Exceptions, and under such Regulations as the Congress shall make.

Republicans know this well. When John Roberts worked as an attorney for Ronald Reagan, he suggested that both Brown v Board and Roe v Wade could be overturned by Congress by simply stripping from the Court the power to decide on issues of race or abortion (as I detail in The Hidden History of the Supreme Court and the Betrayal of America).

Most recently, in the wake of the Obergefell gay marriage decision, Republicans in Congress offered a law stripping from the Court its power to rule that gay people could get married. The Marriage Protection Act, which passed the House of Representatives on July 22, 2004 but failed in the Senate, explicitly says:

No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.

While this sort of court-stripping is likely to meet resistance both from Congress and from the Supreme Court, a much easier step is to simply reduce the power of the Court to go off on these wild excursions based on their mind-reading of the Founders.

That could be accomplished by Congress creating an “regulation” for the Court that says all decisions involving Constitutional matters must be decided by consensus (the most strict) or with no fewer than 7 out of 9 notes.

Other options include expanding the size of the Court, term-limiting the Court, or — what FDR had proposed — moving all over-70 justices (Alito, Thomas, and Roberts in 3 years) to “emeritus” status so they can continue to participate in deliberations but lose their vote (or all the emeritus members’ votes are consolidated into one when there’s consensus).

Republicans are already talking out loud about state legislatures legally handing the 2024 election to Trump or DeSantis regardless of who wins, no insurrection necessary this time, because they’re assuming the Court will rule their way.

So, with Moore v Harper and even more toxic and democracy-hobbling or even democracy-destroying decisions coming before the Court, what can we do?

At the very least, Congress should mandate that the Court abide by the same ethics rules that every other federal court and judge must follow, and that all arguments and decisions be televised. This would increase the power of dissenters on the Court and raise the integrity-focusing power of the spotlight of public opinion.

All of these options are within the power of Congress, should it choose to end the filibuster and exercise that power.

Whatever strategy Democratic leadership and the Biden administration choose, America is today in the midst of a severe constitutional crisis and action is needed right now or, at the very least, in the weeks immediately after this November’s election.

If we fail, 2024 may be this nation’s last election for president.

an 922

According to CNN's Zachary Wolf, the Supreme Court could throw the 2024 presidential election into total chaos if they give their blessing to an "oddball" legal theory proposed by the same conservatives who attempted to overturn the 2020 election.

At issue, while the House and Senate work on a bill that would clarify how votes from the states are tabulated and ways in which they can be contested, is a legal theory that suggests the federal government can't control how state legislatures run and report their elections and blocks the courts from stepping in.

As Wolf wrote, "The Supreme Court, meanwhile, could be headed in the direction of conjuring anti-democratic nightmares if its conservative majority chooses to bless part of the oddball legal theory behind that very same push to overturn the 2020 election," before adding, "Some Republican lawmakers and the lawyer who conjured then-President Donald Trump's effort to stay in power despite the 2020 election results argue that the Constitution actually suggests state legislatures are independent and disembodied from the rest of their governments to rule over federal elections in their states without state court review."

"The case at hand, Moore v. Harper, has to do with North Carolina's new congressional map, which was gerrymandered by the state's GOP legislature and then redrawn by the state's courts -- which made the map more favorable to Democrats," he wrote. "Since the Constitution doesn't specifically say state courts can oversee state legislatures on the matter, supporters of the idea want legislatures to have new power over congressional map."

According to Eliza Sweren-Becker of the Brennan Center for Justice, a fierce critic of the so-called "independent state legislature theory," the Supreme Court could introduce chaos into every national election if they agree with the theory.

Saying the new rules would lead to "undemocratic shenanigans," she added, "We've seen over the past year more states introducing, and in some instances passing, legislation that would create the risk of election sabotage and election interference."

According to Wolf, "That would be the nightmare scenario: The House and Senate limit their own ability to question election results put forward by states, and the Supreme Court gives state legislatures new power to engage in election shenanigans."

ref cnn

no lnx

Here's a nightmare scenario for election reform

Zach Wolf

Analysis by Zachary B. Wolf, CNN

SatSeptember 24, 2022

(CNN)Ghosts of the 2020 election continue to haunt the US system of government.

Exorcism. The House and Senate have a path in mind to exorcise the January 6, 2021, insurrection with a law to clarify among other things that, no, the vice president cannot simply ignore certified election results and, no, states cannot send competing slates of electors to Washington.

Embrace. The Supreme Court, meanwhile, could be headed in the direction of conjuring anti-democratic nightmares if its conservative majority chooses to bless part of the oddball legal theory behind that very same push to overturn the 2020 election.

Disembodied legislatures. Some Republican lawmakers and the lawyer who conjured then-President Donald Trump's effort to stay in power despite the 2020 election results argue that the Constitution actually suggests state legislatures are independent and disembodied from the rest of their governments to rule over federal elections in their states without state court review.

That the conservative Supreme Court justices who pride themselves on their fidelity to the Constitution's text want to hear more about re-textualizing this single word, "legislatures," after more than 200 years, makes the Constitution feel creaky and stuccoed over rather than like the solid bedrock of Western liberal democracy.

Electoral Count Act reform has bipartisan momentum

On Capitol Hill, bipartisan proposals in both the House and Senate would upgrade the Electoral Count Act, a confusing and poorly worded law from horse-and-buggy times -- when there were actual disputed elections -- that dictates how Electoral College votes are gathered and counted.

The House passed its version this week. The Senate version, which has 10 Republicans on board to defeat a filibuster, will likely see a vote later this year. The two sides could reconcile their differences after Election Day.

Politifact stacks the competing House and Senate bills against each other and finds a lot of similarity. The big differences lie in the threshold for how many lawmakers on Capitol Hill it takes to object to a state's electors and what might constitute a "failed election," calling a state's election results into question. The House bill also gives states more time to settle election lawsuits and disputes.

CNN's report has more details:

The House bill would require the support of one-third of each chamber to raise an objection and a majority of votes for that objection to be sustained. It outlines five specific and narrow reasons for raising objections. The Senate version of the bill only requires one-fifth of support in each chamber (to raise an objection) and does not restrict reasons for objections.

Currently, only one member from each chamber is required to object and there are no restrictions on the types of objections that can be brought up. That's why 147 Republicans across both chambers were able to object when Congress met to certify the election on January 6, 2021, and cited various reasons for doing so.

Read more about the bill the House passed.

Electoral Count Act reform won't be a very bipartisan idea for long

The time is now for supporters to clarify these things, since none of the House Republicans who supported their bill will be in office come January.

All nine of the Republicans who supported the House plan were either defeated in GOP primaries or are not running for reelection.

Most of the Republicans who publicly support the Senate reform bill are retiring, although Sen. Lindsey Graham of South Carolina, a Trump ally, is a co-sponsor.

Meanwhile, a large portion of the Republicans who will be on the ballot in November (at least 11 candidates for secretary of state positions and 22 candidates for governor) have spread, endorsed or shown sympathy to 2020 election denialism.

Potentially redefining the Constitution

While the House and Senate are looking at cleaning up the procedure, the Supreme Court will hear a case this term that could redefine the Constitution entirely, perhaps with unintended consequences.

Born from Trump's failed effort to overturn the 2020 election, the so-called independent state legislature theory says that, despite the history and legal precedent, the Constitution says state legislatures shall pick the time, place and manner of elections for House and Senate and that Congress can alter them.

The case at hand, Moore v. Harper, has to do with North Carolina's new congressional map, which was gerrymandered by the state's GOP legislature and then redrawn by the state's courts -- which made the map more favorable to Democrats. Since the Constitution doesn't specifically say state courts can oversee state legislatures on the matter, supporters of the idea want legislatures to have new power over congressional maps.

If the Supreme Court gives them new power, the thinking goes that state legislatures, often under one-party control, would be unchecked by the normal equilibrium and could act in unexpected ways to influence elections.

Read an in-depth report on the independent state legislature theory from CNN's Ariane de Vogue.

What to make of the Supreme Court hearing this case

I talked to Eliza Sweren-Becker of the Brennan Center for Justice, who is a fierce critic of the independent state legislature theory and testified before Congress about the theory earlier this year. She cautioned we should not assume the Supreme Court will endorse it simply because four justices agreed to hear the case and several have expressed an openness to the theory.

"There is a mountain of material, of scholarship, thinking and analysis, particularly of the founding era, reflecting that the independent state legislature theory is simply an incorrect reading of the Constitution," Sweren-Becker said.

Unintended consequences

The Supreme Court is considering the independent state legislature theory in the context of congressional maps. And there it could come back to bite Republicans.

Princeton University professor Sam Wang, who tracks the gerrymandering of congressional districts by political parties, argues Republicans might not exactly run the table in a scenario where legislatures were given new power to rewrite congressional maps. In fact, in several scenarios, he found no real change in the balance of power on Capitol Hill or the possibility of a Democratic gain of up to nine seats.

Over the past decade, Wang argues in his newsletter, "Republicans have taken a more aggressive approach to redistricting, and in many places they have already maxed out their gains."

Wang said nobody should root for independent state legislatures, which he describes as a "Wild West scenario."

Sweren-Becker said that by cutting state governors and courts largely out of election law, the theory could nullify existing state protections for voters, create chaos for the state officials who administer elections and, importantly, open the door to "undemocratic shenanigans."

"We've seen over the past year more states introducing, and in some instances passing, legislation that would create the risk of election sabotage and election interference," she said.

That would be the nightmare scenario: The House and Senate limit their own ability to question election results put forward by states, and the Supreme Court gives state legislatures new power to engage in election shenanigans.

an 9 22

Former United States Labor Secretary Robert Reich released a new video on Tuesday warning of the danger to democracy posed by an upcoming Supreme Court case.

Arguments scheduled for this fall in Moore versus Harper will petition the Court to embrace the fringe Independent State Legislature Theory that grants state lawmakers the power to supersede the will of the voters in presidential elections.

The lawsuit is an extension of the Republican Party's embrace of ex-President Donald Trump's baseless allegations that the 2020 contest was stolen.

"In February 2022, the North Carolina Supreme Court blocked the state's Republican-controlled general assembly from instituting a newly-drawn congressional district map, holding that the map violated the state constitutional ban on non-partisan gerrymandering," Reich explained.

State Representative Tim Moore (R-111th District), the Speaker of the North Carolina House, "appealed the decision to the US Supreme Court, advancing this theory – a theory that's circulated for years in right-wing circles – which argues that the US Constitution gives state legislatures alone the power to regulate federal elections in their states," Reich continued, noting that the Constitution "does grant state legislatures the authority to prescribe the 'times, places, and manner of holding elections.'"

The problem is that the Constitution does not give state legislatures "total power over our democracy," which is essentially what the plaintiffs in Moore versus Harper maintain, Reich said, adding that the Supreme Court has "repeatedly rejected the Independent State Legislature Theory" numerous times throughout the last century.

But the Court's right-wing majority – with three jurists that were nominated by Trump – "will rule about on just about anything that suits the far-right's agenda," Reich cautioned.

Reich then proposed three ways that the public can protect democracy.

First is expanding the Court. The second is imposing term limits and having Justices "rotate" with lower-appellate court judges. The third solution is for the federal government to "restore voting rights protections" and "expand access to the ballot box."

To achieve this, Reich concluded, voters must ensure that Democrats retain control of Congress in the November midterms.

Watch below or at this link.

an 9 22

In Moore v. Harper, a case that the U.S. Supreme Court has agreed to hear, North Carolina Republicans are challenging a ruling by the North Carolina Supreme Court — which struck down, as a violation of the state’s constitution, a gerrymandered congressional map that GOP lawmakers in the state favored. But Moore v. Harper is about much more than partisan gerrymandering in North Carolina. It also involves a far-right legal theory known as the “independent state legislature doctrine,” and a group representing the chief justices of every state supreme court in the U.S. is coming out against the theory.

The independent state legislature theory, in its most extreme form, argues that only state legislatures have the power to determine how elections are administered at the state level — not governors, not judges, not state supreme courts, not state attorneys general. According to the doctrine, only a state’s legislative branch has the authority to govern elections in that state — and the state’s executive and judicial branches should have no say in the process.

The U.S. Supreme Court, in the past, has rejected the independent state legislature theory as crackpot nonsense. But given the High Court’s radical-right turn, some legal experts fear that it will rule, in Moore v. Harper, that the theory has merit. And the implications of such a ruling could be enormous.

Proponents of the independent state legislature theory believe that state lawmakers should be able to simply throw out any election results that they don’t like regardless of what a state’s governor, attorney general or state supreme court thinks. So, if the High Court rules that the state legislature theory is legitimate and a Democratic presidential nominee wins in Pennsylvania, Wisconsin and Arizona in 2024, for example, Republican lawmakers in those states could, according to some legal experts who oppose the theory, give the electoral votes to the GOP nominee — regardless of what the states’ executive or judicial branches think.

On August 1, law professor and election law expert **Rick Hasen** tweeted, “I do believe that a muscular reading of the independent state legislature theory would provide a fig leaf for state legislators to try to reverse presidential election results and overturn the will of the people in a presidential election…. The independent state legislature doctrine is complicated, and the argument is that a state legislature could *claim* the doctrine lets it overturn the will of the people. Kevin McCarthy could agree and the courts might not intervene to stop it during electoral college count.”

The Charlotte News & Observer’s Will Doran, in an article published on September 7, reports, “A group representing the chief justices of every state Supreme Court in the country has come out in opposition to a legal theory North Carolina lawmakers are pushing in a nationally watched case before the U.S. Supreme Court. The case will have massive implications for the 2024 elections, and the future of American elections if the state’s Republican legislators win their argument. Specifically, the lawmakers want the court to embrace a controversial legal argument known as the ‘independent state legislature theory’ that the late conservative Justice Antonin Scalia suggested in the Bush v. Gore case in 2000, but which has never received a majority of support on the nation’s highest court.”

Doran notes that the independent state legislature theory “states that the legislative branch has sole authority to manage elections — at least those at the federal level — and that therefore, state courts should not be allowed to rule a legislature’s election-related actions unconstitutional.”

According to Doran, “The brief from the state supreme court justices opposes that idea, citing the 1803 case of Marbury v. Madison that established the concept of judicial review as part of the American system of checks and balances…. The case now before the Supreme Court stems from when Republican lawmakers drew new political maps for North Carolina, following the 2020 Census, but had those overturned as unconstitutional by the NC Supreme Court. It was the latest in a series of high-profile lawsuits the GOP-led legislature has lost in recent years over their efforts on topics such as redistricting, voter ID, early voting and the political makeup of the state elections board.”

In its brief, the group of state supreme court justices stresses, “Judicial review — review of a legislature’s act for its compliance with other laws and the constitution — preceded the Founding and is embedded in the U.S. Constitution and numerous state constitutions of the Founding era.”

https://www.alternet.org/2022/07/supreme-court-independent-state-legislature/

===

https://www.alternet.org/2022/07/supreme-court/

Some will rob you with a six-gun

And some with a fountain pen

— Woody Guthrie, "Ballad of Pretty Boy Floyd"

As Woody Guthrie indicated in his 1939 song quoted above, crimes need not be carried out through violence. That applies even to the grandest larceny: stealing the most precious possession of a people, self-government.

In February 1964, John Frankenheimer's "Seven Days in May" premiered. The film depicts a conspiracy headed by a right-wing extremist general to stage a coup d'état aimed at ousting the president and installing a military junta to rule the nation.

As we learn ever more details of Donald Trump's attempted coup to overthrow the American Republic — what might be titled "Six Days in January" — we realize just how close it came to succeeding. The evidence indicates that the then-president's approach to staying in the presidency was similar to the "bold, persistent experimentation" to deal with the Great Depression that Franklin D. Roosevelt advocated when running for the office in 1932: "Take a method and try it. If it fails, admit it frankly and try another. But above all, try something." Apart, of course, from the "admit it frankly" part, that appears to be exactly how the Trump plan to steal the election worked. If one method failed, the conspirators would move on to the next, with a violent insurrection being the final option if all else failed.

It is now clear that there was another alternative, in the event that the attempt to end democracy through a violent attack on the Capitol failed: In Guthrie's terminology, to rob Americans of democracy with a fountain pen instead of a six-gun.

Two days after Cassidy Hutchinson provided a riveting account of how the then-president was determined to overthrow the government by force, the three people he appointed to the Supreme Court showed how to overthrow the government by decree.

The period from June 24 through June 30 constituted the results of a coup much longer in the planning than that of the former president and his accomplices. As Jane Mayer, Nancy MacLean and Kurt Andersen have detailed in their respective books, "Dark Money" (2016), "Democracy in Chains" (2017) and "Evil Geniuses" (2020), a stealth plan, overseen by radical right-wing billionaires determined to "liberate" themselves from all effective government limitations on their actions and accumulation of wealth, has been ongoing for nearly seven decades and in earnest for more than four decades.

Like the enslavers of old and their chief theoretician, John C. Calhoun of South Carolina, they believe that property rights are superior to people's rights and that the sort of policies they favor can most readily be obtained and preserved by concentrating power at the state level.

Achieving their objectives, which are in the interests of only a tiny minority of the population, would be a challenge in a democracy, as was evident in 1964 when the radical right gained the Republican presidential nomination for Barry Goldwater but saw him crushed by Lyndon Johnson, the architect of the sort of for-the-people government that was anathema to them.

The actual agenda of the radical rich had to be kept under wraps as they attracted needed allies by stoking racism, fear, hate and division. Though it is unlikely that many of them gave a hoot about abortion and most of the other "social issues" that animated the base of the movement the billionaires would steer toward their interests, they could use them to gain support for their hidden program.

Full democracy — which was first achieved in the United States in 1964-65 — is incompatible with promoting the interests of a small minority over those of a vast majority. The objectives of the greedy few might stand a better chance in the least democratic branch of the American Republic. In 1982, the Federalist Society was created to develop an alternative legal outlook to the then-dominant social and economic views in the profession. This long game has worked magnificently. All six of the Supreme Court justices who voted to overturn Roe v. Wade and to severely limit regulation of business in West Virginia v. EPA came out of the Federalist Society.

Those two bookends on the court's final week nicely show that a price the forces of greed were willing to pay to assure America would have a new Gilded Age was to give us a Gilead Age.

The Supreme Court of the United States now in effect holds that corporations and zygotes are persons, but women are not.

But the court's counterrevolution during June's last week didn't end with the EPA decision that could, in the words of historian Heather Cox Richardson, "signal the end of the federal government as we know it." For bad measure, the court announced that it is taking up the case of Moore v. Harper, which is based on afringe legal theory called the "independent state legislatures doctrine." It will give the right-wing majority of the court the opportunity in its 2022-23 session to empower state legislatures to do legally exactly what Trump was trying to coerce them to do illegally: replace electors for the candidate who won the state with others who will vote for the loser. Such a ruling would write "The End" to the story of American democracy.

The "pens" of the right-wing extremists — please stop calling them "conservatives" — on the Supreme Court have nearly accomplished what the "swords" of the Jan. 6 insurrectionists failed to do.

The subtitle of Kurt Andersen's book, "The Unmaking of America," decades in the planning, was largely accomplished in a week.Call it "Seven Days in June."

NEW REP

...

Cleta Mitchell

Attorney}:

Mitchell is a longtime member of the CNP board of governors. More recently, she appeared on panels at 2020 CNP meetings speaking on “Election Integrity: Securing the Ballot Box” and “Election Integrity: Action Steps.” Mitchell also serves on the board of directors of the Bradley Foundation, run by fellow CNP board member Richard Graber. Following Biden’s victory, Mitchell tweeted that the Georgia recount was “A FAKE!!!” She traveled to Georgia as a volunteer legal adviser for Trump’s campaign and helped to file a December 2020 lawsuit challenging the returns. According to The Washington Post’s Robert O’Harrow Jr., “On December 30, Mitchell wrote to [then–White House chief of staff] Mark Meadows and offered to send some 1,800 pages of documents purporting to support claims of election fraud.” On January 2, Mitchell took part in Trump’s infamous call to Georgia Secretary of State Brad Raffensperger, of whom Trump famously demanded, “I just want to find 11,780 votes.” The call was leaked, and when Mitchell’s role was disclosed, she was obliged to resign from her position at the Foley & Lardner law firm. But Mitchell continues her work through her strategy sessions at the CNP, her board membership at the Bradley Foundation, her Apple podcast Who’s Counting?, and her November 2021 appointment to the Board of Advisors of the federal Election Assistance Commission, which certifies voting systems—including voting machines—and advises local officials on compliance with federal regulations.

Richard Graber

CEO, Lynde and Harry Bradley Foundation

This Milwaukee foundation has assets of some $900 million. Graber is a member of the board of governors of the CNP, while CNP election strategist Cleta Mitchell is one of the foundation’s 11 board members. The Koch network and the DeVos family philanthropies may have received more attention, but the Bradley Foundation’s strategic, longtime focus on state-level politics has allowed it to make a major impact, using its home state of Wisconsin as a laboratory. In 2012 to 2013, the foundation spent more than $8 million on a network of groups promoting a right-to-work law also supported by then-Wisconsin Governor Scott Walker (a fellow CNP board member) and attacking Wisconsin trade unions. The resulting right-to-work law crippled the unions and contributed to Wisconsin’s shift from a Democratic to a swing state. In 2021, the Bradley Foundation earmarked $600,000 for the American Legislative Exchange Council’s voter management campaign software and other activities, bringing its ALEC contributions to $5.4 million over the previous decade. In 2020 and 2021, the foundation gave $200,000 to the Claremont Institute. Claremont has played a critical role in the radical right’s promotion of false claims of fraud and the efforts to rewrite voting laws in advance of the 2024 elections; John Eastman, who drafted the infamous six-point memo used by Trump to challenge the Electoral College on January 6, is a Claremont senior fellow. The foundation also contributed $300,000 to the Public Interest Legal Foundation (chaired by Cleta Mitchell) and $175,000 to the Heritage Foundation’s election law initiative, both of which promoted Trump’s false claims of fraud.

Lisa Nelson

CEO, American Legislative Exchange Council

Nelson came to ALEC in 2014 after previous stints on Newt Gingrich’s staff and at GOPAC, the Republican state and local political training organization. ALEC was co-founded in 1973 by Paul Weyrich, also a co-founder of the CNP. ALEC convenes corporate sponsors and Republican state legislators to “collaborate” on model bills—including legislation to oppose environmental regulation and gun control. In April 2020, The Washington Post reported that Nelson, Jenny Beth Martin, and Adam Brandon were leading an effort to organize a group of businesspeople to help Trump “jump-start” the economy in the depths of the Covid epidemic. Nelson continued her efforts over 2020 and doubled down after the Biden’s victory. From December 2 to 4, 2020, ALEC hosted a secret “process working group” for Republican state legislators, election commissioners, and attorneys to develop strategies on election oversight and redistricting. In July 2021, ALEC hosted and financed an “academy” under the rubric of the “Honest Elections Project” in conjunction with its annual meeting, with panels featuringCleta Mitchell and other CNP strategists.Nelson offered a preview of their project to rewrite election laws at the CNP’s May 2021 meeting: “We’ve been targeting our efforts on those states that have had issues—Pennsylvania, Michigan, Arizona, Florida to a certain degree.” Currently, Republicans control 30 state legislatures, including Arizona, Florida, Georgia, Michigan, Pennsylvania, and Wisconsin. If successfully implemented, the independent state legislature initiative could determine the outcome of the 2024 elections, regardless of the popular vote.

Daniel J. Schultz

Attorney and founder, Precinct Strategy

Schultz was an early proponent of the idea that Republican-controlled legislatures could overturn election results—later promoted as the “independent state legislature doctrine.” In some interpretations, Republican-controlled state legislatures could nullify the popular vote and send their own electors to put Trump in office. The key to his strategy? Purging from the Republican Party inconveniently ethical officials like Brad Raffensperger, starting at the precinct level. “We can take over the party if we invade it,” Schultz told Steve Bannon on his podcast in February 2021. Over the following months, there was a surge in candidates for precinct chairman positions across the country. Schultz has pointed to the strategy’s success in Arizona as a model. ProPublica reported that in one Maricopa district, the precinct roster grew by 63 percent in less than six months. Schultz’s website asks: “Can we get 3/10 of 1% of the 74 M Trump America Firsters to Become Republican Precinct Committeemen? To TAKE OVER The Republican Party? To Save the Republic?” He points out that precinct committeemen are the ones who elect the state party leaders and are the only ones who can vote to endorse primary candidates; in some states, they are the only ones who can nominate candidates to fill vacancies in state legislatures. The logic is that full slates of pro-Trump precinct chairs could guarantee pro-Trump candidates on the Republican state-level ballots in 2022, who could be activated to enact the independent state legislature doctrine in 2024—subject to judicial review. Donald Trump approves. On February 27, 2022, he issued a statement endorsing Schultz’s project.

Anne Nelson @anelsona

Anne Nelson is the author of Shadow Network: Media, Money, and the Secret Hub of the Radical Right}:. She has taught at Columbia University for over 20 years and is currently a research scholar at Columbia’s Saltzman Institute of War and Peace Studies.

from chris adams pilf:

Two other Public Interest Legal Foundation lawyers—its president, J. Christian Adams,and another board member, Hans von Spakovsky—served in George W. Bush’s Justice Department, where they began efforts to use the Voting Rights Act, which was designed to protect Black voters, to prosecute purported fraud by Black voters and election officials. Both men have argued strenuously that American elections are rife withserious fraud, and in 2017 they got a rare opportunity to make their case, when Trump appointed them to a Presidential commission on election integrity. Within months, after the commission was unable to find significant evidenceof election fraud, it acrimoniously disbanded. Adams and von Spakovsky, who are members of what Roll Call has termed the Voter Fraud Brain Trust, have nevertheless continued their crusade, sustained partly by Bradley funds. Von Spakovsky now heads the Heritage Foundation’s Election Law Reform Initiative, which has received grants from the Bradley Foundation.

At Heritage, von Spakovsky has overseen a national tracking system monitoring election-fraud cases. But its data on Arizona, the putative center of the storm, is not exactly alarming: of the millions of votes cast in the state from 2016 to 2020, only nine individuals were convicted of fraud. Each instance involved someone casting a duplicate ballot in another state. There were no recorded cases of identity fraud, ballot stuffing, voting by non-citizens, or other nefarious schemes. The numbers confirm that there is some voter fraud, or at least confusion, but not remotely enough to affect election outcomes.

Even Benjamin Ginsberg, a Republican lawyer who for years led the Party’s election-law fights, recently conceded to the Times that “a party that’s increasingly old and white whose base is a diminishing share of the population is conjuring up charges of fraud to erect barriers to voting for people it fears won’t support its candidates.”

The Voter Fraud Brain Trust lent support to Trump’s lies from the time he took office. In 2016, when he lost the popular vote by nearly three million ballots, he insisted that he had actually won it, spuriously blaming rampant fraud in California. Soon afterward, von Spakovsky gave Trump’s false claim credence by publishing an essay at Heritage arguing that there was no way to disprove the allegation, because “we have an election system that’s based on the honor system.”

More than a year before the 2020 election, Cleta Mitchell and her allies sensed political peril for Trump and began reviewing strategies to help keep him in office. According to a leaked video of an address that she gave in May, 2019, to the Council for National Policy, a secretive conservative society, she warned that Democrats were successfully registering what she sarcastically referred to as “the disenfranchised.” She continued, “They know that if they target certain communities and they can get them registered and get them to the polls, then those groups . . . will vote ninety per cent, ninety-five per cent for Democrats.”

One possible countermove was for conservative state legislators to reëngineer the way the Electoral College has worked for more than a hundred years, in essence by invoking the Independent Legislature Doctrine. The Constitution gives states the authority to choose their Presidential electors “in such Manner as the Legislature thereof may direct.” Since the late nineteenth century, states have delegated that authority to the popular vote. But, arguably, the Constitution permits state legislatures to take this authority back. Legislators could argue that an election had been compromised by irregularities or fraud, forcing them to intervene.

In August, 2019, e-mails show, Mitchell co-chaired a high-level working group with Shawnna Bolick, a Republican state representative from Phoenix. Among the topics slated for discussion was the Electoral College. The working group was convened by alec, the corporate-backed nonprofit that transmits conservative policy ideas and legislation to state lawmakers. The Bradley Foundation has long supported alec, and Mitchell has worked closely with it, serving as its outside counsel until recently.

Mitchell and Bolick declined to answer questions about the working group’s focus, but it appears that Bolick’s participation was productive. After the election, she signed a resolution demanding that Congress block the certification of Biden’s victory and award Arizona’s electors to Trump. Then, early this year, Bolick introduced a bill proposing a radical reading of Article II of the Constitution, along the lines of theIndependent Legislature Doctrine. It would enable a majority of the Arizona legislature to override the popular vote if it found fault with the outcome, and dictate the state’s Electoral College votes itself—anytime up until Inauguration Day. Bolick has described her bill as just “a good, democratic check and balance,” but her measure was considered so extreme that it died in committee, despite Republican majorities in both houses of the legislature. Yet, simply by putting forth the idea as legislation, she helped lend legitimacy to the audacious scheme that the Trump campaign desperately pursued in the final days before Biden’s Inauguration: to rely on Republican-led state legislatures to overturn Electoral College votes. Ian Bassin, the executive director of Protect Democracy, who served as an associate White House counsel under Obama, told me, “Institutions like the Heritage Foundation and alec are providing the grease to turn these attacks on democracy into law.”

Bolick has since announced her candidacy for secretary of state in Arizona. Her husband, Clint Bolick, is an Arizona Supreme Court justice and a leader in right-wing legal circles. Clarence Thomas, one of the three U.S. Supreme Court Justices who signed on to the concurring opinion in Bush v. Gore laying out the Independent Legislature Doctrine, is the godfather of one of Clint Bolick’s sons. If Shawnna Bolick wins her race, she will oversee future elections in the state. And, if the Supreme Court faces another case in which arguments about the Independent Legislature Doctrine come into play, there may now be enough conservative Justices to agree with Thomas that there are circumstances under which legislatures, not voters, could have the final word in American elections.

Months before the 2020 vote, Lisa Nelson, the C.E.O. of alec, also anticipated contesting the election results. That February, she told a private gathering of the Council for National Policy about a high-level review that her group had undertaken of ways to challenge “the validity” of the Presidential returns. A video of the proceedings was obtained by the investigative group Documented, and first reported by the Washington Spectator. In her speech, Nelson noted that she was working with Mitchell and von Spakovsky.

Although the law bars charitable organizations such as theCouncil for National Policyfrom engaging in electoral politics, Nelson unabashedly acknowledged, “Obviously, we all want President Trump to win, and win the national vote.” She went on, “But it’s very clear that, really, what it comes down to is the states, and the state legislators.” One plan, she said, was to urge conservative legislators to voice doubt to their respective secretaries of state, questioning the election’s outcome and asking, “What did happen that night?”

By August, 2020, when the Council for National Policy held another meeting, the pandemic had hurt Trump’s prospects, and talk within the membership about potential Democratic election fraud had reached a frenzy. At the meeting, Adams, the Public Interest Legal Foundation’s president,echoed Trump’s raging about mail-in ballots, describing them as “the No. 1 left-wing agenda.” He urged conservatives not to be deterred by criticism: “Be not afraid of the accusations that you’re a voter suppressor, you’re a racist, and so forth.”

A younger member of the organization, Charlie Kirk—a founder of Turning Point USA, which promotes right-wing ideas on school campuses—injected a note of optimism. He suggested that the pandemic, by closing campuses, would likely suppress voting among college students, a left-leaning bloc. “Please keep the campuses closed,” he said, to cheers. “Like, it’s a great thing!”

Five months later, Turning Point Action, a “social welfare organization” run by Kirk’s group, was one of nearly a dozen groups behind Trump’s “March to Save America,” on January 6th. Shortly before the rally, Kirk tweeted that the groups he leads would send “80+ buses full of patriots to DC to fight for this president.” His tweet was deleted after the crowds assaulted the Capitol.

Turning Point, which has received small grants from the Bradley Foundation, is headquartered in Arizona, and it has played a significant role in the radicalization of the state, in part by amplifying fear and anger about voter fraud. Turning Point’s chief operating officer, Tyler Bowyer, is a member of the Republican National Committeeand a former chair of the Maricopa County Republican Party. Bowyer’s friend Jake Hoffman runs an Arizona-based digital-marketing company, Rally Forge, that has been Turning Point’s highest-compensated contractor.In the summer of 2020, Rally Forge helped Turning Point use social media to spread incendiary misinformationabout the coming elections.

In September, the Washington Post reported that Rally Forge, on behalf of Turning Point Action, had paid teen-agers to deceptively post thousands of copycat propaganda messages, much as Russia had done during the 2016 campaign. Adult leaders had instructed the teens to tweak the wording of their posts, to evade detection by technology companies. Some messages were posted under the teens’ accounts, but others were sent under assumed personae. Many posts claimed that mail-in ballots would “lead to fraud,” and that Democrats planned to steal the Presidency.

Turning Point Action denied that it ran a troll farm, arguing that the teen-age employees were genuine, but a study by the Internet Observatory at Stanford’s Cyber Policy Center documented the scheme, along with other dubious practices by Rally Forge. In 2016, the company fabricated a politician—complete with a doctored photograph—to run as an Independent write-in candidate against Andy Biggs, a far-right Republican seeking an open congressional seat in Arizona. The ploy, evidently intended to siphon votes from Biggs’s Democratic opponent, didn’t go far, but it was hardly the company’s only scam. The Guardian has shown how Rally Forge also created a phony left-wing front group, America Progress Now, which promoted Green Party candidates online in 2018, apparently to hurt Democrats in several races.

In October, 2020, Rally Forge was banned from Facebook, and its president, Hoffman, was permanently suspended by Twitter. Undeterred, he ran as a pro-Trump Republican for the Arizona House—and won. Remarkably, the chamber’s Republican leadership then appointed him the vice-chair of the Committee on Government and Elections. Since getting elected, Hoffman has challenged the legitimacy of Biden’s victory, called for election audits, and, in coördination with the Heritage Foundation, used his position to propose numerous bills making it more difficult to vote.

This past spring, at a private gathering outside Tucson, Jessica Anderson, the executive director of Heritage Action—the politically active arm of the Heritage Foundation—singled out Hoffman for praise. As a leaked video of her remarks revealed, she told supporters that, with the help of Hoffman and other state legislators, the nonprofit group was rewriting America’s election laws. “In some cases, we actually draft them for them, or we have a sentinel on our behalf give them the model legislation so it has that grassroots, from-the-bottom-up type of vibe,” Anderson explained. “We’ve got three bills done in Arizona!” She continued, “We’re moving four more through the state of Arizona right now . . . simple bills, all straight from the Heritage recommendations.” One of the bills, she noted, was “written and carried by Jake Hoffman,” whom she described as “a longtime friend of the Heritage Foundation.”

Hoffman’s bills have made the Heritage Foundation’s wish list a reality.Voting by mail has long been popular in Arizona, with as many as ninety per cent of voters doing so in 2020, but one of Hoffman’s bills made it a felony to send a mail-in ballot to residents who hadn’t requested one, unless they were on an official list of early voters. Another bill, which Hoffman supported, will, according to one estimate, push as many as two hundred thousand people off the state’s list of early voters. Opponents say that this legislation will disproportionately purge Latinos, who constitute twenty-four per cent of the state’s eligible voters. Another bill by Hoffman banned state election officials from accepting outside donations to help pay for any aspect of election administration, including voter registration. (One of the bill’s targets was Mark Zuckerberg, whose foundation helped county election officials in Arizona handle the pandemic.) In February, at a hearing of the Committee on Government and Elections, a witness from the Washington-based Capital Research Center—also funded by the Bradley Foundation—testified in support of Hoffman’s legislation. Athena Salman, the ranking Democrat, told me she was incensed that Hoffman—“a guy who paid teen-agers to lie”—was put on the election committee. “It’s the fox guarding the henhouse!” she said.

Anderson, of Heritage, declined to respond to questions about the group’s collaborations with Hoffman, instead sending a prepared statement: “After a year when voters’ trust in our elections plummeted, restoring that trust should be the top priority of legislators and governors nationwide. That’s why Heritage Action is deploying our established grassroots network for state advocacy for the first time ever. There is nothing more important than ensuring every American is confident their vote counts—and we will do whatever it takes to get there.”

Hoffman, who formerly served as a town-council member in Queen Creek, a deeply conservative part of Maricopa County, did not respond to requests for comment. Kristin Clark, a Democrat who mounted a write-in campaign against him after the news of his troll farm broke, called Hoffman an “unintelligent man who wants to be a big guy.” She told me, “The Republicans here have changed. They were conservative, but now they’ve sold out. It’s money that’s changed it. All these giant, corporate groups that are faceless—it’s outside money.” In her view, “Jake Hoffman is but a cog.”

The spark that ignited the Arizona audit was an amateur video, taken on Election Night, of an unidentified female voter outside a polling place in what Kristin Clark recognized as Hoffman’s district.The voter claimed that election workers had tried to sabotage her ballot by deliberately giving her a Sharpie that the electronic scanners couldn’t read. Her claim was false: the scanners could read Sharpie ink, and the ballots had been designed so that the flip side wouldn’t be affected if the ink bled through. Nevertheless, the video went viral.

Among the first to spread the Sharpiegate conspiracywas another one ofCharlie Kirk’s youth groups, Students for Trump. The next day, as Trump furiously insisted he had won an election that he ended up losing by roughly seven million votes, protesters staged angry rallies in Maricopa County, where ballots were still being counted. Adding an aura of legal credibility to the conspiracy theory, Adams, the Public Interest Legal Foundation president, immediately filed suit against Maricopa County, alleging that a Sharpie-using voter he represented had been disenfranchised. The case was soon dismissed, but not before Adams tweeted, “just filed to have our client’s right to #vote upheld. Her #Sharpie ballot was cancelled without cure.” Arizona’s attorney general, Mark Brnovich, a Republican, investigated, and his office took only a day to conclude that the Sharpie story was nonsense. But, by then, many Trump supporters no longer trusted Arizona’s election results. Clark, the former Democratic challenger to Hoffman, told me that she watched in horror as “they took B.S. and made it real!”

A day after the election, the office of Katie Hobbs, Arizona’s secretary of state, reported that, based on a routine, bipartisan hand recount of a sample of ballots, “no discrepancies were found” in Maricopa County. Within days, the mainstream media had called the election for Biden, based on late returns from Nevada, Pennsylvania, and Georgia. But Cleta Mitchell, who had been dispatched by Trump’s chief of staff, Mark Meadows, to help the Trump campaign in Georgia, told Fox News, “We’re already double-checking and finding dead people having voted.” As Georgia was ratifying its results with a recount, she tweeted that the tally was “fake!!!”

Meanwhile, on the conservative Web site Townhall, Hoffman demanded “a full audit of the vote count in swing states,” adding that the election was “far from over.” He claimed that there had been “countless violations of state election law, statistical anomalies and election irregularities in more than a half dozen states,” and argued that state legislatures should therefore have the final say. By December, he had joined his friend Bowyer and other members of the state’s Republican Party in filing suit against Arizona’s governor, calling for the state to set aside Arizona’s eleven electoral votes and allow the legislature to intervene.

At the same time, another version of the Independent Legislature Doctrine argument was being mounted in Pennsylvania, by the Honest Elections Project, the group tied to Leonard Leo, of the Federalist Society. Local Republicans had challenged a state-court ruling that adjusted voting procedures during the pandemic. The Honest Elections Project filed a brief with the U.S. Supreme Court arguing that the Pennsylvania court had usurped the legislature’s authority to oversee elections. The effort didn’t succeed, but Richard Hasen, the election-law professor, regards such arguments as “powder kegs” that threaten American democracy. Leo didn’t respond to requests for comment, but Hasen believes that Leo is trying to preserve “minority rule” in elections in order to advance his agenda. Hasen told me, “Making it harder to vote helps them get more Republican victories, which helps them get more conservative judges and courts.”

In the case of Arizona, it took only a week for a federal district court to dismiss Hoffman and Bowyer’s suit, citing an absence of “relevant or reliable evidence.” The court admonished the plaintiffs that “gossip and innuendo” cannot “be the basis for upending Arizona’s 2020 General Election.” Hoffman and the other plaintiffs appealed the case to the U.S. Supreme Court, which declined to hear the matter, but it waited to do so until March. In the meantime, election-fraud conspiracy theories in Arizona were growing out of control.

On November 12th, Biden was declared the winner in Maricopa County. Soon after, a Republican member of the county’s Board of Supervisors, Bill Gates, was picking up takeout food for his family when the board’s chairman—one of four Republicans on the five-person board—called to warn him to be careful going home. Ninety angry people had gathered outside the chairman’s house, and Gates’s place could be next. “We’d all been doxed,” Gates told me. He and his wife are the legal guardians of a teen-ager whose father, a Ugandan, was nearly killed by henchmen for Idi Amin. “It’s chilling to see the parallels,” Gates told me. “You’d never think there were any parallels to a strongman autocracy in Africa.” Gates considers himself a political-science nerd, but, he said, “I had no concept that we were heading where we were heading.”

Gates, who moved to Arizona as a teen-ager, was a latchkey kid whose idea of entertainment was watching C-span. He is forty-nine and describes himself as a “child of the Reagan Revolution” who started a Republican club in high school. He attended Drake University, in Iowa, partly so that he could witness the state’s Presidential caucuses. Winning a Truman Scholarship opened his way to Harvard Law School, where he joined theFederalist Society,the Harvard Law School Republican Club, and the Journal of Law and Public Policy. At Harvard, membership in all three was called the “conservative trifecta.” Gates can scarcely believe how the Republican Party and the conservative movement have changed in the years since.

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The warning that “elections have consequences” proved to be painfully accurate when the U.S. Supreme Court’s theocratic majority overturned Roe v. Wade with its ruling in Dobbs v. Jackson Women’s Health Organization. And yet another threat to privacy protections looms after Justice Clarence Thomas recommended that the High Court “reconsider” key rulings that offer national protection for gay rights and contraception.

Democrats have won the popular vote in seven of the United States’ last eight presidential elections, yet Republican-appointed justices now have a 6-3 Supreme Court majority. That majority is often described as “conservative” in media reports, but journalist Richard Wolffe, in a scathing op-ed published by TheGuardian on July 7, argues that the High Court of 2022 is not dominated by “conservatives,” but by “radical ideologues” of the far right.

“Peering through the mists of time, the current right-wingnut majority of the U.S. Supreme Court believe they can divine the original ideas of some very dead White men,” Wolffe writes. “On that flimsy basis, they rule by fiat. They order states to remove sensible gun safety measures. Then, they deny women reproductive rights by pretending that states can do whatever they want. They say that presidents cannot limit carbon emissions to tackle the climate crisis. And now, they are ready to change the way we elect presidents.”

Wolffe continues, “Whatever you call the current crusade of this Supreme Court, their approach is not conservative. There is nothing stable or traditional about throwing out a half-century of civil rights and quite possibly a century of democratic practice. This is a radical bunch of ideologues who have spent years projecting themselves onto their critics.”

When Wolffe mentions threats to “the way we elect presidents” and a “century of democratic practice,” he is referring to the case Moore v. Harper— which deals with a crackpot legal theory known as the independent state legislature doctrine. According to that theory, state legislatures should have sole authority over how elections are governed in a state — not a state’s supreme court, not judges, not the governor. Removing a state’s executive and judicial branches from that equation could give seriously gerrymandered, GOP-controlled state legislatures unprecedented power when it comes to how elections are managed.

The U.S. Supreme Court, over the years, has repeatedly rejected the independent state legislature doctrine. But in Moore v. Harper, the Court’s 2022 edition has agreed to consider what Wolffe describes as “the fringe notion that state legislatures can set their own rules for federal elections.”

“That includes picking whoever they want for president,” Wolffe warns. “This just happens to have been the big wet dream of one Donald Trump in the weeks after he definitively lost the presidential election of 2020…. Who needs messy democracy when you can just have Republican rule? Since most of the state legislatures have been gerrymandered into huge Republican majorities — and the Electoral College skews power towards smaller states — this wonderfully undemocratic and un-American idea is now perfectly in line with the original intent of the Founders and ratifiers.”

Wolffe adds, “The Constitution may say that states can pick their own presidential electors however they want. But the Electoral College has been decided by the popular vote since the 19th Century, when the states realized early in the nation’s life that all the other methods of picking electors led to widespread corruption. So, to return to the original intent of the Founders just ignores more than a century of democracy — and the very idea that the United States somehow leads the Free World. To be frank, the threat to democracy posed by this Supreme Court is clear and present.”