54 search results for "Luttig"

Coming soon to a red state near you

Further evidence this morning that opposition to democracy has become a feature of the Republican Party. And not of the Trumpublican Party, mind you. This trend predates the Menace from Mar-a-Lago.

Will Bunch comments on doings in Republican Gov. Greg Abbott’s Texas that merit attention yet again. Texas officials last week announced the state’s takeover of the eighth-largest public school system in the country: Houston’s.

Take note, Bunch cautions:

First of all, the move is outrageous. Despite facing the same struggles as most large urban school districts around poverty and disinvestment, topped by the double whammy of COVID-19 and the natural disaster of Hurricane Harvey, Houston schools have been improving under metrics set by the state. Even the one “failing high school” cited by the Texas Education Agency for its takeover — which will allow the GOP administration to supersede the elected school board and appoint its own superintendent — has raised its grade to a passing “C.”

No wonder most local leaders in the Gulf Coast metropolis think this move by Abbott’s minions has little to do with what’s best for Houston’s 195,000 public schoolkids — 62% Latino and 22% Black — and everything to do with the grown-up politics of punishing a city now run by people of color who vote mostly Democratic, as well as giving Team Abbott a new venue to wage the GOP’s war on what they call “woke education.”

“Woke” now being MAGA-ese for nonwhite. Bishop James Dixon, president of the local NAACP, told U.S. News & World Report the move reflects a pattern in a “war against minority culture and especially African Americans and Latinos.”

Bunch continues:

Increasingly, Republicans are using their control of statehouses in red America to simply override election results in blue-dot localities that they don’t like, but especially when the ballot box winners are the choice of Black and brown voters. In Houston, where seven of Houston’s nine elected school trustees are African American or Latino, the Abbott administration’s moves against the school district accelerated around the same time that the city’s Harris County also elected 19 judges who are Black, female and Democratic.

But nationwide, this isn’t even the worst example of predominantly white Republicans establishing a new “cancel culture” against Black and brown democracy. That would be in Jackson, Miss., where what critics call “a Jim Crow bill” that would take at least some of the judicial system in the Black-majority capital city, and control of the police, away from elected officials and put it into the hands of the heavily GOP statehouse. Although the latest version of the bill has been moderated — perhaps under the sunlight of bad publicity —the measure is still opposed by officials like Jackson Mayor Chokwe Antar Lumumba, who calls it “plantation politics.”

Readers may recall, as Bunch does, Florida Gov. Ron DeSantis recently removing an elected Democratic prosecutor in Tampa he did not like. Republicans in control of Pennsylvania’s state House chamber “impeached Philadelphia DA Larry Krasner over policy — no misconduct was alleged — less than a year after city voters had overwhelmingly reelected him.”

It’s a bad look for a Republican Party emboldened enough not to care about appearances, Bunch suggests.

For much of American history, the ultimate goal of their movement — white, patriarchal rule, at any cost — was maintained through a combination of populist mob rule and disenfranchisement of women until 1920 and Black voters until 1965. Plan B since that latter year’s enactment of the Voting Rights Act has included less blatant forms of voter suppression — from strict ID laws to felon disenfranchisement — but even that hasn’t prevented the white-dominated GOP from becoming a national minority party, still believing in its entitlement but lacking the numbers.

In 2023, there is nothing subtle about the anti-democratic and arguably fascist bent of this effort. Much attention has understandably been focused on the most blatant manifestation — Donald Trump’s attempted coup on Jan. 6, 2021, and his supporters’ arguments that state lawmakers can overrule the popular vote in awarding presidential electors. But the essence of their authoritarianism is taking root in the arena where Republicans have the most leverage: The power of GOP legislatures to strip home rule from the blue cities in their jurisdictions.

MAGA-fied, the GOP no longer feels the need to be coy about its antidemocratic sentiments nor to conceal its efforts at power consolidation as a minority party. North Carolina Republicans in November won control of the state Supreme Court. Republican legislators promptly asked the court to rehear a case concerning GOP-drawn redistricting maps ruled illegal partisan gerrymanders by the previous court one year ago. Maps drawn under court order and used in 2022 resulted in a 7-7 congressional delegation in the evenly divided state. Republicans mean to make most of the Democratic incumbents one-termers in 2024.

Then there is Moore v. Harper. The case pending before the U.S. Supreme Court (again, from North Carolina) involves the “fringe independent state legislature (ISL) theory” that would sanction state legislatures overruling the will of voters in assigning presidential electors.

“It is rare to encounter a constitutional theory so antithetical to the Constitution’s text and structure, so inconsistent with the Constitution’s original meaning, so disdainful of this Court’s precedent, and so potentially damaging for American democracy,” wrote respected conservative circuit court Judge J. Michael Luttig (retired) and others in an amicus brief.

As for Republicans’ moves against public schools, I haven’t the time to link to all the posts I’ve written about GOP efforts to divert states’ mandated public education funding into the hands of for-profit grifters.

Just yesterday, local legislators warned a forum here of GOP proposals to attach partisan labels to candidates in school board races in North Carolina.

They’re using any and every tool at their disposal to secure their grip.

Here’s an interesting post over at Post (one of the new twitters) from Neal Katyal about his argument before the Supreme’s in Moore v. Harper:

I gave 1 interview about my Supreme Court oral argument in #MoorevHarper to Lawrence O’Donnell on @Msnbc, earlier this week. Without getting into case specifics, I tried to bring people behind the curtain into how I prepare to argue before 9 different Justices, and most important, how much other people helped in developing the points made at oral argument.

The “9 different courts” point is more nuanced than what a minute on TV can allow–it’s 9 different perspectives, to be sure, but there is also intersection among them (particularly in live oral argument). I find that the conversation among the 9 is often more important than the views of any 1 perspective, and sometimes I view my role as less of an “arguer” and more of an “interlocutor” facilitating a discussion among them.

A true privilege to orally argue this case, and to work with an incredible team, including of course the great @judgeluttig.post.

Very interesting. So much of this stuff is really about psychology and temperament. It’s kind of terrifying when you think about it. But nobody’s come up with anything that isn’t so I guess we’re stuck with it for now. It might be better if they had a few more justices, however, and they served something like 18 year terms instead of lifetime appointments. I think what makes everyone so desperate about a court with a strong majority that’s out of step with the country is that there just seems to be no end to it.

It’s Happy Hollandaise time here at Hullabaloo. If you’d like to throw a little something in the old Christmas stocking it would be most appreciated.

“turns on the Moore petitioners’ inability to understand a dictionary”

There is an, um, minor runoff election in Georgia today. I’ll look at that tomorrow once (fingers crossed) results are known. Meantime, there is a potentially more consequential case going before the Roberts Supreme Court tomorrow (Wednesday) at 10 a.m. ET.

Moore v. Harper out of (where else) North Carolina arises because the state Supreme Court overturned yet another gerrymandered congressional map drawn by the GOP-controlled legislature. The surgically precise gerrymanders Republicans drew after the 2010 census faced court-ordered revision after court-ordered revision as Democrats and voting rights groups challenged the GOP in federal and state court over the last decade. Only in the final election cycle (2020) did the state have something closer to fairness.

The John Roberts Supreme Court dodged ruling that partisan gerrymandering is unconstitutional (Rucho v. Common Cause, 2019) and threw that matter back to the states. A three-judge panel in Superior Court in Raleigh subsequently ruled that it was forbidden under the state constitution.

But the GOP’s rigged maps survived most of the decade, so Wheee!!, why not have another go after the 2020 census, thought Republicans. Their 2021 gerrymanders went right back to court and, after legislators’ Trump-style strategic delays, the court ordered maps redrawn by a special master (for 2022 only). The result? Seven Republicans and seven Democrats will be seated in Congress in January and the GOP will be back at its map-rigging.

Will no one rid us of these troublesome courts? thought N.C. Republicans led by House Speaker Tim Moore. So they come to SCOTUS tomorrow bringing a truly inspired constitutional argument.

“The opening brief in Moore v. Harper, an extraordinarily high-stakes election case that the Supreme Court will hear December 7, is one of the least persuasive documents that I’ve ever read in any context. And I’ve read both Ayn Rand’s Atlas Shrugged, and Donald Trump’s Art of the Deal,” Ian Milhiser at begins at Vox:

The case involves the awkwardly named “independent state legislature doctrine” (ISLD), a theory that the Supreme Court rejected many times over the course of more than a century. It’s also a theory repudiated by many of the very same sources that the ISLD proponents rely upon in their briefs to the justices.

Under the strongest form of this doctrine, members of each state’s legislative branch have unchecked authority to decide how elections for Congress and the presidency will be conducted in their state — indeed, a state legislature could potentially pass a law canceling the presidential election in that state and awarding its electoral votes to Donald Trump. Any state constitutional provisions that protect the right to vote, that limit gerrymandering, or that otherwise constrain lawmakers’ ability to skew elections would cease to function. State governors would lose their ability to veto laws impacting federal elections. And state courts would lose their authority to strike down these laws.

“This entire case turns on the Moore petitioners’ inability to understand a dictionary,” Milhiser writes. I leave you to read his explanation.

Conservative legal elites including former federal judge J. Michael Luttig and Federalist Society founder and co-chair Steven Calabresi oppose the theory. Moore petitioners “flout core tenets of the American Founding,” Calabresi warns.

Democracy Docket spells out what’s at stake:

If the ISL theory is validated by the Supreme Court, state lawmakers would have remarkable power to set federal election rules without oversight from state courts or state constitutions. State courts could lose the power to do their jobs — interpreting state law and enforcing their state constitutions — in the sphere of federal elections. State legislatures could set federal voting and election rules and draw congressional maps without historically common and much-needed oversight. At its strongest, the ISL theory could also threaten gubernatorial veto power over federal election rules, citizen-led ballot measures changing election laws and independent redistricting commissions that draw congressional maps.

While this may sound absurd and far-fetched, the mere fact that the Court accepted this case on its merits docket should ring alarm bells. For decades, Republicans have been attacking voting rights from every possible angle, and now their fight made it to the nation’s highest court. With the power of state courts hanging in the balance, the stakes for democracy are immense. Moore v. Harper threatens the ability of individuals, organizations and states to combat suppressive voting laws and expand access to the ballot box through fair maps and inclusive voting practices. 

All of this legal discussion surrounding this landmark case — which accompanies yet another crucial voting rights case on the Court’s docket this term — should not distract from the fact that the decision the Supreme Court hands down in Moore will affect voters, specifically minority voters, in very real ways. And, if these litigation tools are obliterated by the Supreme Court, there will be even fewer legal options available to fight back.

Absurd? Far-fetched? Well, the Court on Monday heard 303 Creative v. Elenis, “a case testing whether the free speech rights of a web designer who wants to withhold her services from gay couples is in violation of that state’s public accommodations law,” writes Dahlia Lithwick at Slate. Except 303 Creative’s Lorie Smith was never asked nor has she refused to provide services to any gay couple. No gay couples were harmed in the bringing of this case. That comes later. The case is based on a hypothetical. And yet the Roberts Court chose to hear it.

“There is no trial record and there are no facts, and instead there is just a whole lot of spit-balling about things that could happen someday in a comedic civil-rights-free galaxy far, far away,” Lithwick continues. “And what rushes in to fill the vacuum is a host of increasingly deranged hypotheticals, and also what now passes for high comedy at the Supreme Court.”

Funny? Not funny. It is one thing for a frightened has-been in Florida to muse about terminating the U.S. Constitution. It is quite another for the highest court in the land to consider retconning American democracy to conform to a framework extant during the Gilded Age or perhaps to when judges wore powdered wigs.

Our friends down under have more recent experience with the latter:

Update on this Honest Government Ad: tomorrow (Dec 7) SCOTUS hears the case of Moore v Harper (aka the theory of independent state legislature, invoked in 2000 to hand the election to Bush). Keep an eye on it as it could have massive implications for the next US election 🇺🇸 pic.twitter.com/wzHYJNKaOY

— theJuiceMedia (@thejuicemedia) December 6, 2022

UPDATE: Marc Elias just posted his Moore v. Harper preview.

You’re welcome

Vice presidents are unreliable when you want to overturn a democratic election, Republicans found on Jan. 6, 2021. Mike Pence would not violate his oath to placate Donald Trump’s desire to subvert democracy and declare the 2020 loser the winner.

Another means must be found. North Carolina Republicans think they have one: the independent state legislature doctrine. They argue that state legislatures have the power to pick presidents when they feel like it, and damn the will of voters.

The Raleigh News & Observer reviews the case, Moore v. Harper, that the Roberts Supreme Court will hear on Dec. 7. It could be another Dec. 7 that lives in infamy. Tim Moore is Speaker of the North Carolina House of Representatives.

“This is the single-most important case on American democracy, and for American democracy, in the nation’s history,” said Michael Luttig, a former federal appellate judge. Luttig advised Pence to rebuff Trump’s Jan. 6 demand that, as president of the Senate, he send slates of electors back to the states:

If the people of a state vote for a presidential candidate who doesn’t belong to the same political party that controls the state legislature, would courts also be powerless to stop lawmakers from giving their Electoral College votes to their own party’s candidate, instead?

Not everyone agrees that it would — and skeptics include both supporters and opponents of the theory.

“Moore v. Harper is about who has the constitutional authority to draw federal election maps and has nothing to do with presidential electors,” said Lauren Horsch, a spokeswoman for top Republican Sen. Phil Berger.

“This case is extremely dangerous to American democracy, but it would not remove all checks on state legislatures,” Helen White, an attorney for the voting rights group Protect Democracy, told The N&O this summer, when the court first agreed to hear the case. “This would not give anyone ‘license to coup.’”

Luttig, however, said it’s exactly how Trump intended to stay in office despite losing the 2020 election.

For Republicans, the Constitution is more of a guideline than a rule, as Dr. Peter Venkman might say.

Should the court rule in Tim Moore’s favor, the courts will have no check on state legislatures’ modifications to any rules regarding the conduct of federal elections in the states.

Several election law experts with national profiles, like Rick Pildes and Derek Muller, have written that even if the Supreme Court embraces the most extreme version of what North Carolina lawmakers are asking for, it wouldn’t give state legislators the ability to directly overturn a presidential election.

Pildes, however, has written that with a win, state legislators could feel newly empowered to try more complicated attempts at overturning presidential results in their states. That could include pushing sham audits, he said, “with the legislature then finding that the ‘true’ electors the people supposedly chose were ones the legislature would then certify.”

Rick Hasen, a legal scholar who runs the influential Election Law Blog, wrote on Twitter that state legislators would not have the power to overturn presidential election results, under a true academic reading of the case.But that might not matter, he said, if enough people in power decide to pretend otherwise.

A large swath of the country for nearly two years now has pretended Trump won the 2020 election.

Please

Jonathan V. Last of the Bulwark asked an interesting question in his column this week. He wondered, “[C]ould Mike Pence walk through the crowd at a Kari Lake or Doug Mastriano rally without security? On the other hand, what would happen to Mike Pence if he walked through the crowd at a Josh Shapiro or Mark Kelly rally? Would he need security?”

I think we know the answer, don’t we? There is only one crowd that literally tried to hang the former vice president and it isn’t the crowd who would gather for any Democrat. Pence is loathed by the MAGA base and if they happen to forget how much they hate him, Donald Trump will be sure to remind them every chance he gets.

That hasn’t stopped Pence from spending the last year laying the groundwork for a 2024 presidential run, giving speeches, laying out what he calls his “Freedom Agenda” and sounding like he’s working on his best George W. Bush impression and partying like it’s 2004. He seems to be under the strange impression that the Republican Party still likes him, and that its voters still believe in the outdated conservative movement of yesteryear. If you didn’t know better, you’d think he’d been in a coma for the last six years (which might explain the dazed look on his face visible throughout the Trump administration).

This week Pence gave a speech sponsored by the Heritage Foundation (where he is a “distinguished visiting fellow”) in which he caught the media’s attention by giving  a coy answer when asked if he’d be willing to vote for Trump in 2024. He said, “Well, there might be somebody else I’d prefer more. I’ll keep you posted.” I think that’s the first time I’ve ever heard Pence even trying to be funny. Humorless sanctimony is his brand.

It’s no secret that he intends to run so that really wasn’t the point of his speech. Pence kept referring to “our movement,” and while some might initially assume he meant Trump’s MAGA movement, that clearly wasn’t the idea. It was more like a throwback to Reaganism:

Our movement cannot forsake the foundational commitment that we have to security, to limited government, to liberty and to life. But nor can we allow our movement to be led astray by the siren song of unprincipled populism that’s unmoored from our oldest traditions and most cherished values. Let me say: This movement and the party that it animates must remain the movement of a strong national defense, limited government and traditional moral values and life.

His broadside against “unprincipled populism unmoored from our oldest traditions and most cherished values” is clearly aimed at his former boss. Maybe those old tropes will sound like a beloved ’80s soundtrack to a lot of Republicans who think that’s what they believe in, even if they’re clearly following a completely different ideology today. The conservative movement Pence speaks of in such glowing terms is dead — and he was instrumental in burying it.

When you read that passage and the rest of his speech, it’s as if Pence has forgotten that he stood stalwartly by Donald Trump’s side, gazing adoringly and endorsing every bit of incivility and “unprincipled populism” that gushed from the man’s mouth like a geyser of unbridled, self-serving, valueless malevolence. Pence sacrificed all integrity or dignity with his extravagant display of sycophancy. Take, for example, one infamous Cabinet meeting in December of 2017 when he was clocked giving no less that 14 paeans to Trump’s greatness. I’ll just pick a handful:

I’m deeply humbled, as your vice president, to be able to be here…. Because of your leadership, Mr. President, and because of the strong support of the leadership in the Congress of the United States, you’re delivering on that middle-class miracle… Mostly, Mr. President, I’ll end where I began and just tell you, I want to thank you, Mr. President. I want to thank you for speaking on behalf of and fighting every day for the forgotten men and women of America…. Because of your determination, because of your leadership, the forgotten men and women of America are forgotten no more. And we are making America great again.

“The Daily Show” did a famous bit sending up Pence’s adoring gaze

There was no more obsequious bootlicker in Donald Trump’s administration than Vice President Mike Pence, and that’s saying something.

Now, it’s fair to say that Jan. 6, 2021 and its aftermath have given Pence something of a reputation boost. He did the job every previous vice president has done, supervising the pro forma ritual of opening the envelopes of state-certified electoral votes, rather than trying to overturn the results and sparking an unprecedented constitutional crisis. Furthermore, Pence showed physical courage in refusing to leave the Capitol when it was overrun by insurrectionists. Democrats and others who still believe in democracy surely appreciate that. But let’s not kid ourselves that they’re likely to forget the four long years of submissive brown-nosing that came before it.

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After all, Pence didn’t just do the right thing instinctively as any true patriot would have done — he didn’t just tell Trump “no way” and leave it at that. He had to consult with a bunch of people, including former Vice President Dan Quayle, to figure out whether it would be OK to stage a coup. Luckily, according to Robert Costa and Bob Woodward, Quayle said, “Mike, you have no flexibility on this. None. Zero. Forget it. Put it away,” and Pence finally agreed. That is not exactly the profile in courage he’s now portrayed as displaying.

Pence can do church-speak with the best of them. But if right-wing Christians have to choose between him and the Dear Leader who showed them the path to ending democracy, it’s no contest.

And even though Pence is an old-fashioned Christian conservative and can communicate in church-speak as well as anyone, it’s now been clearly established that the Christian right doesn’t really care about that. They love Donald Trump, the crotch-grabbing libertine who couldn’t name a Bible verse if his life depended on it. If it came down to a choice between the Dear Leader who offered them a pathway to power and the traitorous Mike Pence, who shattered their dreams of bringing down democracy, there is no doubt who they would choose.

So who, exactly, does Pence think is his constituency? Democrats wouldn’t attack him at a rally, and might even give him a pat on the back for his actions Jan. 6, but they certainly aren’t voting for him after his years-long display of unctuous groveling. Republicans won’t vote for him because he betrayed Trump, and the Never Trumpers aren’t likely to forgive him for betraying the GOP. I guess that leaves Liz Cheney and maybe a few members of the Bush and Romney families.

Mike Pence helped turn the GOP into what it is today and now finds himself a man without a party. He gets credit for not capitulating to fascism all the way, but his fate is richly deserved. He should start looking for some of those nice lucrative board seats and retire from public life. He’s cooked. 

Salon

Justice Jackson makes her mark right out of the box

Ketanji Brown Jackson is making her mark already in just two days of questioning. Here’s Sherrilyn Ifill’s live tweet on today’s Alabama’s gerrymandering case that hopes to finally end the Voting Rights Act. This is very “legalesque” but you’ll get the idea. Jackson is using their originalism to prove they are full of shit:

So important that Justices Kagan & Jackson are pulling the mask off of Alabama’s case. AL is in essence, relitigating Mobile v. Bolden, which resulted in Congress amending the Voting Rights Act in 1982 to ensure that a “results” rather “intent” is required for section 2 cases.

And even better that Justice Kagan re-upped the language in Brnovich in which Justice Alito in his haste to remake the “totality of circumstances” test of Section 2, conceded that “no one disputes” that intent is NOT required to prevail in Section 2 cases.

Justice Jackson has done her homework. She is all over Section 2, and relentless in questioning counsel for the state of Alabama. She knows where a proper Section 2 inquiry starts. And it’s not at “race neutrality.”

Justice Alito throwing counsel for Alabama a lifeline.

Kagan and Jackson have been so hot, I’d forgotten that Justice Sotomayor is just entering the fray. This is a hot bench. And given the blows landed, I expect that Alito and the other 5 conservatives will be very aggressive with the counsel for Black voters.

Wow. Justice Kagan gets to it. Asks if it would be possible for Alabama to create maps with no majority Black districts. Counsel for AL essentially says, “it depends on what Section 2 is trying to get at.” Just unreal. The purpose of the Voting Rights Act is not mysterious.

Kagan now holding a class on the Voting Rights Act: “one of the great achievements of American democracy.”

Counsel for Alabama is now distorting what “third generation” voting rights claims means. This is not that. This is a classic second generation vote dilution redistricting claim. Good grief.

Justice Kavanaugh hoping this case can be resolved on “compactness” grounds. Looking for a way to get the job done without getting his hands dirty with the straight-on grotesque business of gutting Gingles.

Justice Barrett giving counsel for Alabama another chance by laying out the argument that can win with this conservative majority. Step-by-step. “Isn’t that your argument?” Well, yes.

Whew. Justice Jackson went into the reports of the Commission on Reconstruction to make clear what the founders of the 14th amendment were trying to accomplish. Then offered a short survey course to AL counsel and the Court.

Giving them a little “history and traditions.”

Not sure I can live tweet Deuel Ross’s argument cause I just think he’s amazing and I need to just listen.

Ross not falling into the “max-Black” bait being dangled by Justice Alito. So fully conversant on all of the cases and all of the facts that he can’t be caught. This line of questioning reveals that it’s hard to find a legitimate way out on the facts of this case.

Ross doing law and reminding the Court that this case is up in the SCOTUS on a preliminary injunction (suggesting the inappropriateness of using this case to make sweeping changes to precedent).

No questions for Ross from Justices Thomas or Gorsuch on this first round.

In responses to Justice Kavanaugh is leaning in. Trust me: there is no lawyer more knowledgeable about Voting Rights Act case law than @RossDeuel. Period. And he’s serving it up. If you want to do violence to the VRA with Ross at the podium, you’re going to have go through it.

I am alternately preening and fanning myself like a proud mother. Whew!

Up now Abha Khanna. Brilliant opening.

Excellent answers by Abha Khanna. And it shows how important it is to have a strong district court opinion where the Gingles analysis is done carefully and exhaustively.

Justice Alito is belaboring these hypotheticals involving the use of computer simulations, and “unbiased mapmakers.” It’s a reminder that at his confirmation hearing he talked abt his father’s work as a legislative mapmaker in New Jersey.

Abha Khanna now brilliantly breaking down how even computer simulations are not “neutral” because they are programmed with assumptions, in response to a question by Justice Barrett. It’s clear that several justices are really hanging their hats on computer simulated maps.

Justice Jackson making sure to ask Abha Khanna to address the assumption underlying Justice Barrett’s question – that either Section 2 or the 14th Amendment requires race neutrality. And making it clear that neither do.

Abha Khanna says there is “no basis” for reading a computer simulation standard into the first Gingles factor.

SG Elizabeth Prelogar now arguing.

Justice Alito gets to it: where can the state win once plaintiffs have satisfied the first Gingles factor? Won’t plaintiffs “run the tables”? Wow. Maybe, he says, the majority (whites) votes as a block because of “ideology. They have different ideas abt what the govt should do.”

Important to note that @RossDeuel made clear that the record evidence shows that voting was racially polarized in elections involving both Democrats and Republicans.

Counsel for Alabama on rebuttal now having seen where this is going, “we’re not asking for Gingles to be overturned or changed in any fundamental way. We’re not saying that computer simulations are required.”

Ok, counsel for Alabama saying that the multi-factor Gingles test only provides evidence of “broad, societal discrimination” is laughable. It is explicitly a “searching, practical evaluation of the local political reality.”

And that, is a wrap. The case is submitted.

Originally tweeted by Sherrilyn Ifill (@SIfill_) on October 4, 2022.

Josh Marshall talks a bit about today’s arguments:

It is such a breath of fresh air, seeing Justice Ketanji Brown Jackson say from the bench what the 14th Amendment actually says. “It’s not a race-blind remedy,” she says, in something of an understatement. But we can actually go well beyond this since so much of modern jurisprudence, mostly but not only from the right, is based not only on ignoring the context and plain text of the 14th Amendment but pretending that the real Constitution — albeit with some additions and fresh paint jobs — is the one finalized in the first Congress as the first ten amendments. The Civil War amendments are not only not race-blind. They reflect a larger realization and aim: that the whole state thing just hadn’t worked out.

The 14th Amendment creates something called citizenship of the United States with various rights or “privileges and immunities” that states cannot violate. It reaffirms that states are subordinate jurisdictions and implicitly that their function had been far more to create mischief than progress.

This is all gauzed over today with the political and judicial edifice we call “federalism,” largely though not entirely the work of the late-20th century conservative legal movement. It proposes a set of principles and historical claims under which the federal and state governments are designed to exist in a kind of balancing equipoise. But mostly this isn’t true. “Federalism” is to a great degree the product of a long and mostly reactionary clawing back of the power by the state governments. Not entirely. But mostly.

Madison and Hamilton had wanted to neuter the states back in the 1780s. But the need to get a big majority of the states to agree to adopt the constitution made that impossible. They had to settle for the constitution as agreed to.

It would be possible to argue that 150+ years since the passage of the Civil War amendments represents a cooling of the ambitions of the statecraft of the 14th Amendment and an effort to work out some equitable balance between localism and national power. There’s some truth to that. But that’s not an argument available to anyone who argues for originalism. With that you have to go back to what the Reconstruction Congress thought they were doing. And what they were trying to do was quite radical in the context of the 80 preceding years of American national history — indeed, quite radical in some ways in relation to today.

He’s right about this. It’s super interesting to see originalism debated in this way. My previous post about the North Carolina Independent State Legislature case in which Michael Luttig uses the right’s originalism to argue against their new novel theory designed to allow Republicans to steal elections is also super interesting. This is the new intellectual battleground with this right wing majority. Whether any of them care abojut intellectual consistency or are all just partisan hacks remains to be seen.

And it’s very nice to see the three liberals on the court join the fray with all intellectual guns blazing. They’re all brilliant.

Hardcore consesrvative, former appeals court judge J. Michael Luttig makes an originalist states’ rights appeal for the judiciary against the Independent Legislature Theory that might just peel off two of the wingnuts( if any of them still have any integrity at all.)

The Supreme Court will decide before next summer the most important case for American democracy in the almost two and a half centuries since America’s founding.

In Moore v. Harper, the Court will finally resolve whether there is a doctrine of constitutional interpretation known as the “independent state legislature.” If the Court concludes that there is such a doctrine, it would confer on state legislatures plenary, exclusive, and judicially unreviewable power both to redraw congressional districts for federal elections and to appoint state electors who quadrennially cast the votes for president and vice president on behalf of the voters of the states. It would mean that the partisan gerrymandering of congressional districts by state legislatures would not be reviewable by the state courts—including the states’ highest court—under their state constitutions.

Such a doctrine would be antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution.

The independent-state-legislature theory gained traction as the centerpiece of President Donald Trump’s effort to overturn the 2020 presidential election. In the Supreme Court, allies of the former president argued that the theory, as applied to the electors clause, enabled the state legislatures to appoint electors who would cast their votes for the former president, even though the lawfully certified electors were bound by state law to cast their votes for Joe Biden because he won the popular vote in those states. The Supreme Court declined to decide the question in December 2020. The former president and his allies continued thereafter to urge the state legislatures, and even self-appointed Trump supporters, to transmit to Congress alternative, uncertified electoral slates to be counted by Congress on January 6.

That as many as six justices on the Supreme Court have flirted with the independent-state-legislature theory over the past 20 years is baffling. There is literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding or the Constitution’s framing for a theory of an independent state legislature that would foreclose state judicial review of state legislatures’ redistricting decisions. Indeed, there is overwhelming evidence that the Constitution contemplates and provides for such judicial review.

The argument is long and dense but readable. I urge you to read it if you can. Luttig goes through chapter and verse about the state judiciary’s role in the constitution and takes on the very thin arguments that say the state legislatures are given this massive power through this very convenient interpretation of the elections clause that has only recently been discovered. The argument is obviously aimed at the conservatives on the court. I only hope that two of them can read it. It ends like this:

The Supreme Court does not agree on the nature, scope, and standards governing its own review of Congress’s enactments under the U.S. Constitution. Every day the Court sits, its members employ different and shifting outcome-determinative interpretive methodologies and consult different sources when interpreting and applying the U.S. Constitution. There is no reason to believe that there would or should be any agreement among the justices as to how to fashion federal constitutional constraints on the state supreme courts’ review of their legislatures’ laws under their own respective state constitution.

But there is every reason that they should never try.

All of which goes to confirm that the Constitution neither contemplates nor permits federal constitutional commandeering of the states’ constitutions and their judicial processes. Rather, it contemplates and provides only for federal judicial review of the state supreme courts’ state constitutional decisions by the U.S. Supreme Court for consistency with the United States Constitution.

You’d think that judges would be sympathetic to this argument. Basically this theory is saying that state supreme courts are nothing.

I just don’t know if any of this majority is persuadable. From what we’re seeing in the arguments today in the Alabama gerrymandering case, it certainly appears that Barrett is kind of vacant. Her questioning on this is as fatuous it was in the abortion case. But maybe Roberts and Gorsuch? (Kavanaugh maybe, but he’s made it clear that he’s open to the ISL theory.) I just don’t know. Luttig sees this as a major threat to democracy. It is.

The right and the press react to Biden’s speech

I have often referred to what I call “The Art of the Hissy Fit,” defined as the right using “faux outrage to get the media to press the Democrats to disavow or apologize for something they were perfectly entitled to say or do. Most often, it’s something extremely mild compared to what Republicans say and do every day.”

One example of this play to work the refs from the past was the GOP’s flamboyant pearl-clutching over the Democrat’s behavior at the funeral for progressive Senator Paul Wellstone of Minnesota who died in a plane crash during the 2002 election season. Democrats held a memorial service/celebration of life in which people eulogized Wellstone and also rallied for his political cause (as he would have wanted) with some stemwinding political speeches. The right went nuts, cynically decrying the event as being “disrespectful” and calling for the Democrats to apologize over the alleged insult to Real American values — which they dutifully did.

It was a crock, obviously, but those who’ve been around long enough to remember that event will recall that the pundits went crazy, demanding that the Democrats answer for the outrage while the Republicans snickered behind their backs. It was a minor incident but it illustrates this ongoing tactic of the right wing which has been on display again over the past few days after Joe Biden described the “MAGA Republicans” as “semi-fascist.” The hand wringing and rending of garments by Donald Trump’s minions has been a sight to behold.

So-called GOP moderate New Hampshire Governor Chris Sununu called for Biden to apologize as did House Minority leader Kevin McCarthy in a pre-buttal speech on Thursday in which he said:

“In the past two years, Joe Biden has launched an assault on the soul of America, on its people, on laws, on its most sacred values. He has launched an assault on our democracy. President Biden has chosen to divide, demean, and disparage his fellow Americans — Why? simply because they disagree with his policies. That is not leadership. When the president speaks tonight at Independence Hall, the first lines out of his mouth should be to apologize for slandering tens of millions of Americans as ‘fascists'”

And yet:

Fox and the Republicans are losing their minds over Joe Biden calling MAGA "semi-fascist."

But they'd never call their political opponents "fascists," right? Right??

You'll be shocked, shocked I tell you! Roll the tape:pic.twitter.com/lIEiRdjqT7

— Mehdi Hasan (@mehdirhasan) September 2, 2022

It’s enough to make you dizzy, isn’t it? Here we have evidence of Republicans routinely calling Democrats fascists (and communists and even pedophiles etc.) yet they are, once again having a hissy fit over Biden using the same word to describe them, as if he’s the one beyond the pale.

Meanwhile, this week their leader Donald Trump demanded to be reinstated as president and went on a podcast Thursday morning to declare that he is financially supporting the January 6 insurrectionists with plans to pardon all of them and have the government offer them apologies if he becomes president again. I don’t know if that’s fascist but it certainly is demented.

Normally the Democrats immediately fall all over themselves backtracking and apologizing in these situations but they have been remarkably stalwart this time. In fact, on Thursday night President Biden gave his speech in Philadelphia expanding on his judgment of the MAGA movement’s turn toward fascism (although he did not use the word again) and he was unsparing in his description of what a toxic dangerous movement it has become. He said:

For a long time, we’ve reassured ourselves that American democracy is guaranteed. But it is not. We have to defend it. Protect it. Stand up for it. Each and every one of us. MAGA Republicans do not respect the Constitution. They do not believe in the rule of law. They do not recognize the will of the people and refuse to accept the results of a free election.

Biden said, correctly, that “they see their MAGA failure to stop a peaceful transfer of power … as preparation for the 2022 and 2024 elections,” quoting conservative former federal judge Michael Luttig. And he noted that they are working “in state after state to give power to decide elections in America to partisan and cronies, empowering election deniers to undermine democracy itself.” And he rightly pointed out that “they promote authoritarian leaders, and they fan the flames of political violence that are a threat to our personal rights, to the pursuit of justice, to the rule of law, to the very soul of this country.”

He made a distinction between these “MAGA Republicans” and mainstream Republicans, suggesting that the latter were to whom he was addressing this speech. I’m not sure the difference is as obvious as he would like to think, however.

Mainstream Republicans who are still backing the party after January 6 and the leadership’s ongoing endorsement of Trump, despite his obvious unfitness, probably aren’t going to be persuaded. But it needs to be said anyway. As Biden put it, “too much of what’s happening in our country today is not normal” — and it’s important to keep reminding people of that.

It’s still hard to believe that a president of the United States is compelled to give such a speech but here we are. Biden stood at Independence Hall and warned that we have a powerful fascist movement in this country and exhorted the American people to fight back.

Journalists, meanwhile, were hand wringing over this:

Whatever you think of this speech the military is supposed to be apolitical. Positioning Marines in uniform behind President Biden for a political speech flies in the face of that. It’s wrong when Democrats do it. It’s wrong when Republicans do it.

— Brianna Keilar (@brikeilarcnn) September 2, 2022

Takes like this ignore that most civ-mil experts have had concerns for years about an erosion of norms in how the military is injected into politics by senior leaders.

Trump objectively blasted through those norms in alarming ways. Biden pledged a return to something better. https://t.co/C7NVKGcYxZ

— Dan Lamothe (@DanLamothe) September 2, 2022

Why am I not surprised? Here we had a serious speech warning about a real threat to democracy and the press decided the optics of the marines standing behind Biden was an equally important issue that needed airing. As usual, the Democrats are held to a different standard as if this triviality is the equivalent of Trump holding the Republican Convention at the White House or bringing a bunch of military gear onto the Washington Mall for his tacky 4th of July celebration. You see, Biden pledged to “do better” so really, it’s even worse.

Here’s an example of the respectful tone by the Republican leadership in the wake of the speech:

“The imagery was almost satanic with that blood red lighting and the two marines” pic.twitter.com/gdLbHxCheA

— Acyn (@Acyn) September 2, 2022

Here’s another:

They chose this imagery. It’s unreal.

Joe Biden is Hitler.#NaziJoe has to go. https://t.co/g2AOdp97BM

— Rep. Marjorie Taylor Greene🇺🇸 (@RepMTG) September 2, 2022

Satanic, Hitler, Nazi, that’s all fine. Just don’t call it semi-fascist. That would be wrong, very wrong. And having those Marines standing there was a dangerous threat to all we hold dear so I’m sure they’ll be calling for Biden to apologize for that too. Some things never change. 

Update—

Greg Sargent makes a similar point:

Biden: Trump and MAGA look at 1/6 rioters not as insurrectionists, but as patriots.

Trump: I will pardon all the 1/6 defendants. They are the victims here.

MAGA: The 1/6 rioters are political prisoners.

Media: That speech was out of bounds! Partisan!!https://t.co/wyVoDOZknb pic.twitter.com/zILuy03XVh

— Greg Sargent (@GregTSargent) September 2, 2022

A Navigator Poll found a six-point increase in the number of Republicans and Independents who believe Trump should be charged with a crime after being informed of the revelations from the Committee.

I know,I know. It should be 90%. But 6 points is pretty significant considering this country’s polarization.

Dan Pfeiffer has some ideas about why:

But there is a lesson to take away from the Committee’s success that can be applied to communications more broadly. From the prominent role Liz Cheney and Adam Kinzinger played, to the array of video clips from card-carrying members of MAGA nation, to the choice of conservative witnesses like Judge Luttig and Brad Raffensperger, the Committee is employing a very specific and smart strategy

They are using “trusted voices” to communicate with the target audience — victims of the Right Wing disinformation system. The Committee’s strategy is a model for Democrats as they seek to persuade voters who moved away from us since 2020.

Trust and Identity

In the (very) old world, journalistic institutions and prominent media members were broadly trusted. Most people would take anything the New York Times wrote or CNN broadcast to the bank. The media had an imprimatur of trust and knowledge. Network anchors like Walter Cronkite and Tom Brokaw were titanic figures with massive influence on public opinion.

Some refer to this period as the Broadcast Era of Communications. Politicians informed the press, and the press informed the public.

That is no longer the case. That world is over, and that model is deader than a doornail (whatever that means). Trust in the media is at an all-time low.

The public is inherently skeptical of information from the media and downright distrustful of any information that comes from someone from the other party. People are desperately looking for someone or something they can trust. And trust is directly tied to identity — is this someone I know? Is this person part of one of my identity groups (my party, my profession, my part of the country, etc.)? To put a finer point on it, if you want to convince Republicans that Trump is guilty or the election is legitimate, you should use Republican voices to do so.

This approach probably makes intuitive sense to you, but there is evidence to back it up as well.

First, in a 2021 study, the American Press Institute ran a series of experiments showing participants articles shared by people they trusted and others shared by people they distrusted. Some of the articles were from credible media outlets like the Associated Press. Others were completely made up and filled with factual errors.

The sharer tends to have a greater significance on attitudes than the news organization that reported the article in the first place. The reporting source still matters, according to the experiment, just not as much as who shared the article. For instance, when the story is passed on by a trusted figure and the article is attributed to The AP, 52 percent of people think the article got the facts right. When the article is still attributed to The AP but the person passing it on is less trusted, only 32 percent say the facts were right.”

Second, Stanford researchers recently showed videos of people endorsing the integrity of the election to 2100 Republican voters. The folks who saw footage of Republicans like George W. Bush, Bill Barr, and Susan Collins were five points more likely to believe the election was legitimate than those shown videos of Democrats. While these effects may be minuscule, we live in a highly polarized, narrowly divided political environment. Even small movements in public opinion can be decisive.

He suggests that Democrats keep this in mind as they try to bring back some of the GOP and Independent voters who voted for Biden in 2020. I would just say to remember that this has very limited utility. You cannot expect more than a handful to be susceptible to this because tribal loyalty is everything to the GOP these days. It takes a special person to break out of that. But you have to try.And maybe “trusted voices” might just be a better strategy than”sell-out your princples.” Dems ought to give it a try.

Will congress step up?

Greg Sargent reports on a potentially important bipartisan congressional initiative:

A serious threat to our democracy is this scenario: A state legislature appoints a slate of presidential electors in defiance of the state’s popular vote, and one chamber of Congress, controlled by the same party, counts those electors. Under current law, those electors would stand, potentially tipping a close election.

But now, these senators appear to be homing in on solutions to that problem. If they succeed, it would constitute a substantial accomplishment, thanks in part to the House Jan. 6 committee’s focus on President Donald Trump’s attempt to overthrow U.S. democracy.

This week, the senators are expected to reach a deal on ECA reform. Trump revealed the ECA’s vulnerabilities by pressuring his vice president and congressional Republicans to invalidate electors appointed for Joe Biden in several states, as part of a plot to get them to appoint new electors for Trump.

The belief that this was actually possible — itself a legacy of the ECA’s flaws — helped inspire the violence of Jan. 6, 2021.

And so, ECA reform’s highest-profile elements would address those vulnerabilities. This would include clarifying the vice president’s role as purely ceremonial, expressly stating that the position has no power to invalidate electors or delay their count.

It would also include raising the threshold for Congress to object to a slate of electors. Right now, only one member from both the House and Senate can force a vote on whether to cast out electors. The reform would require one-fifth of each chamber to force that vote.

But in a twist, the relentless attention on that aspect of Trump’s scheme — pressuring his vice president and congressional Republicans — has overshadowed another essential element of ECA reform: how to address corruption of the state-level process for appointing electors.

First let’s note that all states appoint presidential electors in keeping with the popular vote outcome in them, a process that states previously established with legislation.

But imagine if a state legislature, with the backing of the governor, claims widespread-but-fictional election fraud as a pretext to violate that previously established process — and to appoint electors for the candidate who lost the popular vote.

If one chamber of Congress — say, the House of Representatives controlled by the same party those state actors and that candidate belong to — counts those electors, they’d become valid.

That’s even if the Senate objects to those electors. Under the current ECA, both chambers must object to electors to invalidate them. If one objects and the other counts them, they stand.

In short, all it takes is one state’s governor, in complicity with the House, to overturn a state’s outcome, and with it a very close national election. That’s the nightmare that experts such as Matthew Seligman and Richard L. Hasen urgently warn against.

Now, however, solutions to this threat are also being debated as part of ECA reform. According to two sources familiar with the talks, here are some of these solutions, though they’re in flux or could drop out entirely:

-Presidential electors must be appointed by the manner the state’s laws dictated before Election Day. This would prevent a state legislature and governor from appointing sham electors after the voting.

-If a state appoints a slate of electors before a deadline — the sixth day before the presidential electors meet — it overrides any electors appointed after that deadline. This would also avert post-vote shenanigans.

-The governor of each state must certify the electors before that deadline. If a governor violates this duty, the aggrieved candidate can appeal to a three-judge panel of two circuit court judges and one district court judge.

-The slate of electors deemed the legitimate one by the federal courts is conclusive.

-Congress must count the slate of electors deemed the legitimate one by this revised process for states. This means if the federal courts deem one set of electors operative, Congress must count them, and must not count other electors, even ones certified by a state legislature or governor.

– an election is disrupted by a disastrous event, the state legislature cannot simply appoint electors. It can only extend the voting period. This averts another scenario — a legislature finds a pretext to declare the voters failed to reach a decision, and appoints electors itself — which the current ECA might allow.

It’s not at all certain these ideas will end up in the final product. A spokesperson for Sen. Susan Collins (R-Maine), a leader of the bipartisan group, said these contain “inaccuracies,” and warned that talks are fluid.

But they would be critical, especially with so many candidates running for state-level positions across the country on an implicit (or even explicit) willingness to use their offices to reverse hated election losses.

“These particular reforms are essential,” J. Michael Luttig, a retired conservative judge widely respected by Republicans, told me. “They would all but ensure that the country will never endure another Jan. 6.”

All it would take is 10 GOP senators to agree — and no Democrats defecting over the absence of voting rights legislation — and it can be so.

This is a test. If they can’t get the GOP negotiators onboard or there aren’t 10 to break the filibuster we will know this is exactly what they are planning and that the entire party is on board.