Meadows might not have been Thomas’s only contact inside the Trump White House that week. On Nov. 13, she texted Meadows about her outreach to “Jared,” potentially a reference to Jared Kushner, the president’s son-in-law and senior White House adviser. She wrote, “Just forwarded to yr gmail an email I sent Jared this am. Sidney Powell & improved coordination now will help the cavalry come and Fraud exposed and America saved.”
“Each week it seems we learn more and more about the role Justice Thomas' wife, Ginni Thomas, played in efforts to overturn the 2020 election.
She sent at least 21 text messages to White House Chief of Staff Mark Meadows, contacted 29 Arizona state lawmakers (some of them twice), and pressured the chair of the Senate elections committee and at least one other Republican lawmaker in Wisconsin to set aside Biden’s popular-vote victory and “choose” new presidential electors that would vote for Trump.[5]
Just as alarming is that Thomas used the “independent state legislature theory” as the basis for her argument, the same argument at the core of Moore v. Harper, the case soon to be heard by the Supreme Court.
This is the Republicans scheme that could remove American voters from the selection of the next president.
It all hinges on the once-fringe idea called the independent state legislature theory that gives state legislatures the power to disregard the popular vote and substitute their own slate of electors pledged to whoever they wish. The theory perverts the Elections Clause of the Constitution by claiming the lack of specific mention of the judiciary's role in the times, places and manner of holding federal elections means the courts can’t even review the state legislatures decisions.
That means Moore v. Harper could let Republican controlled state legislatures overrule the will of the people and pick the next president of the United States -- without you.
If the Supreme Court were to rule to adopt this principle, they wouldn’t just be ruling against more than a century of judicial precedent, they would be rejecting the lessons that inspired the framers to write the Constitution in the first place. They believed it was dangerous to give state legislatures unchecked power just as much as they believed in the dangers of giving unchecked power to the President.
The Conference of Chief Justices, a bipartisan group representing the chief justices of all 50 state supreme courts, has filed an amicus brief with the U.S. Supreme Court in opposition to the once-fringe independent state legislature theory that the legislative branch has sole authority to manage federal elections and therefore state courts cannot rule a legislature’s election-related actions are unconstitutional.[6]
John Eastman, Trump’s lawyer who pleaded the fifth before a Georgia grand jury in the Fulton County election-interference probe at the end of August, filed a brief for the conservative Claremont Institute in the case, too. The brief acknowledged that the Supreme Court has ruled against the theory in multiple cases spanning the last century, but all of those rulings got it wrong and the court should undo that precedent now.[7]
We used to be able to depend on the U.S. Supreme Court to adhere to precedent, but if there’s one thing the Dobbs decision overturning Roe v. Wade taught us, we simply cannot.
Ginni Thomas irreparably compromises Justice Thomas’ impartiality."
FROM:
Demand Justice Thomas Recuse from Moore v. Harper Now
“The most important case for American democracy” in the nation’s history — that’s how the former appeals court judge J. Michael Luttig described Moore v. Harper, an extraordinary lawsuit that the Supreme Court considered in oral arguments Wednesday morning. Judge Luttig, a conservative and a widely respected legal thinker, is not one for overstatement. Yet most Americans aren’t paying attention to the case because it involves some confusing terminology and an arcane legal theory. It is essential that people understand just how dangerous this case is to the fundamental structure of American government, and that enough justices see the legal fallacies and protect our democracy…
In practice, the theory that the petitioners in the case are seeking to use would turn hundreds of state constitutional provisions into dead letters in federal elections. For instance, 48 states affirmatively guarantee a right to vote in their constitutions. (The federal Constitution still does not.) Most state constitutions guarantee free, fair, equal or open elections. Even the secret ballot — so fundamental to American democracy — is a creature of state constitutions. If the justices accept the most aggressive version of the independent state legislature theory that the petitioners want them to and even if they accept a weaker version, provisions like these could become invalid overnight, because the theory holds that state constitutions have no authority to impose any regulations on federal elections…
That so many justices would take the theory seriously is bad enough. Three of them — Justices Alito, Neil Gorsuch and Clarence Thomas — appear to favor the independent state legislature theory, as they suggested in an opinion in an earlier stage of the case. Justice Brett Kavanaugh has also indicated his openness to it. It’s worse when the public trust in and approval of the court have fallen to historic lows, thanks largely to aggressively partisan recent opinions, as this board has argued.
There’s an old saying that only close cases make it to the Supreme Court. If they weren’t close, they would have been resolved in the lower courts. But Moore v. Harper isn’t a remotely close case. A ruling for the North Carolina lawmakers would flood the federal courts with election litigation that normally plays out in the states, upending the balance of federalism that defines American government. That’s not a conservative result; it’s a dangerously radical one.
“Going into the oral arguments for Moore v Harper on Wednesday, it was easy to forget just how radical and strange it was that the US supreme court was hearing the case in the first place.
Moore v Harper is a challenge by North Carolina’s Republican-controlled state legislature to a decision by the state’s Democratic-controlled supreme court, which threw out what the court called an excessively gerrymandered congressional district map that the legislature put forward, saying the map violated a state constitutional law guaranteeing free elections. Unhappy, the legislature adopted what used to be a fringe theory: that state courts don’t have much jurisdiction over election matters at all.
This used to be the kind of claim that a different supreme court would never dignify by granting certiorari. The “independent state legislature” theory has been put forward only a handful of times over the past hundred years, and even then, only by blatant partisans acting in transparent bad faith.
But “blatant partisans acting in transparent bad faith” is now a decent description of the supreme court, so the meritless case is being heard this term. And the North Carolina legislature’s gambit even has a shot of succeeding. When oral arguments began on Wednesday morning, the theory advanced by the legislature had garnered public expressions of support by four of the nine sitting justices – Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas. As happens so frequently with this court, a theory that was once confined to the radical rightwing fringe has been ushered into doctrinal legitimacy by judges eager to secure conservative outcomes.
The independent state legislature theory posits that, when it comes to determining how to conduct federal elections, state legislatures have virtually no limits on their authority and no other government bodies that can check them. State constitutions can’t limit how legislatures order elections, according to this theory, and neither can state courts.
It’s an odd conception of state legislatures, picturing their power over elections as special and different, not subject to the ordinary checks and balances of executive actions and judicial review. Under it, all state constitutional provisions that protect voting rights, ensure equal protection of the law and guarantee due process would be moot, as far as elections go; legislatures would not be bound by them…
If it were adopted by the federal supreme court, the independent state legislature theory would call a mulligan on all of this, disposing of the regular relationship between state legislatures and state courts along with about 100 years’ worth of precedent.
Applied to appointing electors every four years for the presidential election, this was the theory that backed the election subversion plot cooked up by Trump advisor and disgraced law professor John Eastman: it was the theory that if a state legislature didn’t like the electors dictated to them by the voters of their states, they could simply advance another slate of electors instead.
The case before the supreme court now applies the theory to federal congressional elections. It posits that if a state legislature wants to draw a dramatically gerrymandered congressional map – the kind that dilutes the value of votes, erodes the competitiveness of elections and forecloses the ability of the people to express their will through the political process – then it can. State legislators have to abide by the rule of law, according to the theory – except for when they’re determining the rules by which they get to remain in power.
Moore v Harper has come to be seen as an existential threat to functioning democracy in America, in no small part because, in the hands of insurrectionists like Eastman, the tenets of the independent state legislature theory have already become fodder for an attempted coup.
MORE AT:
The Guardian
The future of US elections hinges on an outlandish case before the supreme court | Moira Donegan
Thu 8 Dec 2022 06.08 EST
NEW:
Clip from "Supreme Contortions" with Senator Sheldon Whitehouse, Professor Larry Tribe and Emily Bazelon.
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