Trying to telegraph a conservative argument against rigging the 2024 election
Luttig tweeted out a conservative argument against the plaintiffs in Moore v Harper. From what I can tell, it doesn’t reject the Independent State Legislature nonsense but rather argues that it’s irrelevant because the state legislature has already incorporated judicial review into it’s “prescription” for how elections are to be held. He says it would be a violation of the 10th Amendment, which is something of a sacred cow for “states’ rights” wingnuts.
This is unsatisfying to those of us who aren’t so enamored of this conservative view of the 10th Amendment. And we’d like to see this Independent State Legislature BS blown out of the water. But it appears that Luttig is looking at 2024 and has come up with an argument that might sway one or two not to use this case to rig the election for Donald Trump in 2024. It’s a stop-gap:
The argument from the constitutional text of the Elections Clause (Article I, Section 4, Clause 1) that the North Carolina Supreme Court properly interpreted the United States Constitution in its decision in Moore v. Harper rejecting the state General Assembly’s congressional map is as follows whether or not the Supreme Court of the United States ultimately embraces the “independent state legislature” theory of constitutional interpretation. [my emphasis]
The Elections Clause of the Constitution provides that, “[t]he Times, Places and Manner of holding Elections . . . shall be prescribed in each State . . . by the Legislature thereof.”
Where, as in North Carolina, the legislature has “prescribed” the “Manner” in which the federal congressional “Elections” shall be “held” to include judicial review of the legislature’s own elections and congressional districting decisions, “the Legislature [has] prescribed the Manner of holding Elections” to incorporate judicial review of the legislature’s elections and congressional districting decisions — within both the letter and intendment of the Constitution.
Any eventual conclusion by the Supreme Court of the United States otherwise would entail an unconstitutional commandeering of the powers “reserved to the States respectively, or to the people” by the Tenth Amendment to the Constitution. Interpreting either the Elections Clause of Article I or the Electors Clause of Article 2 to authorize such commandeering would offend not only the fundamental structural command of the Tenth Amendment, but also the essential design of the Constitution of the United States.
Originally tweeted by @judgeluttig (@judgeluttig) on July 2, 2022.
I’m no constitutional scholar so maybe I’m totally wrong about this.
I imagine Luttig has a better insight into the worldview of the Supreme extremists than most, so maybe he’s got a good idea of what might persuade them. In any case, he’s making the attempt. Good for him.