The U.S. Supreme Court on Tuesday rejected a fringe, extremist legal theory that would have removed the ability of state courts to review election laws, including congressional maps, and efferctively would have handed state legislatures the ability to decide presidential elections. The “independent state legislature theory” (ISLT) was backed by Donald Trump and some of his top advisors, who promoted what has been called the “fake electors” scheme.
Chief Justice John Roberts wrote the 6-3 majority opinion. Justices Clarence Thomas and Neil Gorsuch were in the minority. Justice Samuel Alito would have ruled the case moot.
“Under the theory advanced by North Carolina’s Republican legislative leaders, but rejected by the court, state lawmakers throughout the country would have had exclusive authority to structure federal elections, subject only to intervention by Congress,” The Washington Post reports. “The ‘independent state legislature theory’ holds that the U.S. Constitution gives that power to lawmakers even if it results in extreme partisan voting maps for congressional seats and violates voter protections enshrined in state constitutions.”
The Chief Justice in his opinion wrote that the Elections Clause of the U.S. Constitution “does not carve out an exception to that fundamental principle. When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review.”
Back in November, U.S. Senator Sheldon Whitehouse (D-RI), a top proponent of reforming the Supreme Court, warned that the “independent state legislature theory formed the basis of many of the bogus legal challenges to the 2020 election results—including the arguments [Trump attorney John] Eastman was pushing about fake electors.”
On Tuesday, after quickly reviewing the decision in the case, known as Moore v. Harper, some legal experts were rejoicing, at least initially.
“SCOTUS rightly rejected the utterly groundless ‘independent state legislature’ theory that would’ve upended democracy and the rule of law. Only Thomas and Gorsuch went with the theory. Alito would’ve treated the case as moot. It’s [time] to exhale now!” remarked Harvard University Professor Emeritus Laurence Tribe, a top constitutional scholar and former Harvard Law School professor of law.
“This is a rout for proponents of the independent state legislature theory,” wrote Slate’s Mark Joseph Stern.
“In my view,” he added, “the decision in Moore is a huge victory for democracy, ensuring that state courts can continue to review election laws enacted by state legislatures under state constitutions, and that federal courts do not have freewheeling power to meddle in state election schemes.”
Meanwhile, legal journalist Cristian Farias warned the ruling means, “State legislatures can’t do whatever they want, and state courts can police them. But … federal judges can decide if state courts went off the rails in policing state legislatures.”
“This means Bush v. Gore could still happen again,” he adds.
“So yeah, a win for democracy … for now,” Farias continues. “But the Supreme Court leaves wide open what the standard will be when reviewing a state court ruling that, in its judgment, goes too far.”
“In that sense, Moore v. Harper is a boon to voting rights and election lawyers in coming disputes.”
Election Law Blog, founded by election law expert Rick Hasan, published a reserved interpretation of Tuesday’s ruling, warning that the decision offers “zero concrete guidance on where the boundaries are on state court decision-making.”
“The Court endorsed the view — in exceptionally vague terms — that the Constitution prohibits state courts from ‘transgress[ing’ the ordinary bounds of judicial review when they interpret state constitutions, or it seems, state statutes. The Court makes clear that it is not providing any standard at all — even an attempt at a standard — as to what this means concretely.”
“It’s critical that the rules for elections are clear and specified in advance, including the rules that follow from judicial doctrine. The Court’s decision eliminates the most extreme versions of the ISLT, but we are going to see constant litigation around this issue in the 2024 elections until a more clear sense of the boundaries on state court decision-making.”
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Pelosi Delivers Brutal Response After McCarthy’s Acting Replacement Orders Her to Vacate Her Office Immediately
Within hours of Kevin McCarthy being ousted as Speaker of the House late Tuesday afternoon, his hand-picked acting successor, U.S. Rep. Patrick McHenry (R-NC), ordered Speaker Emerita Nancy Pelosi to vacate her Capitol Hill offices “by tomorrow.”
McHenry, whose title technically now is “Speaker Pro Tempore,” is a staunch McCarthy ally who worked diligently behind the scenes in January to help the now-former Speaker get elected on the fifteenth attempt, had an aide issue the order.
“‘Please vacate the space tomorrow, the room will be re-keyed,’ wrote a top aide on the Republican-controlled House Administration Committee,” Politico reported Tuesday night. “The room was being reassigned by the acting speaker ‘for speaker office use,’ the email said.”
Politico adds that “House Minority Leader Hakeem Jeffries’ staff helped Pelosi’s office make the move, according to a spokesperson for the former speaker.”
Pelosi, who was honored with the title “Speaker Emerita” in 2022 by the House Steering and Policy Committee in an effort to help unite the House, did not vote for or against McCarthy’s ouster. She remained in California to attend the funeral of her friend and colleague, the late U.S. Senator Dianne Feinstein.
But Pelosi, the first and only woman Speaker of the House, who served from 2007 to 2011 and again from 2019 to 2023, did not take McHenry’s order lying down.
“With all of the important decisions that the new Republican Leadership must address, which we are all eagerly awaiting, one of the first actions taken by the new Speaker Pro Tempore was to order me to immediately vacate my office in the Capitol,” Pelosi said in a statement, according to Politico’s Nicholas Wu. “Sadly, because I am in California to mourn the loss of and pay tribute to my dear friend Dianne Feinstein, I am unable to retrieve my belongings at this time.”
“This eviction is a sharp departure from tradition. As Speaker, I gave former Speaker Hastert a significantly larger suite of offices for as long as he wished,” She noted.
“Office space doesn’t matter to me, but it seems important to them,” Pelosi added. “Now that the new Republican Leadership has settled this important matter, let’s hope they get to work on what’s truly important to the American people.”
‘Radical Left Marxists’: Trump Launches Attack Hours After Judge Imposes Gag Order
Just hours after New York Supreme Court Justice Arthur Engoron imposed a limited gag order and directed Donald Trump to remove his social media post targeting and attacking, by name, the judge’s law clerk, the ex-president Tuesday evening issued an attack targeting the legal system, and apparently, by extension, Attorney General Letitia James.
Judge Engoron’s Tuesday order barred Trump from “posting, emailing or speaking publicly about any of my staff,” as Politico reported. The judge’s gag order did not extend to any officer of the court, witnesses, or anyone else involved in Attorney General James’ $250 million civil fraud case against Trump.
“Consider this statement a gag order forbidding all parties from posting, emailing or speaking publicly about any of my staff,” Engoron said Tuesday afternoon. “Failure to abide by this order will result in serious sanctions.”
Judge Engoron had announced in court: “This morning one of the defendants posted to his social media account a disparaging, untrue and personally identifying post about a member of my staff.”
“Personal attacks on members of my court staff are unacceptable, inappropriate and I will not tolerate them in any circumstances,” Engoron added.
Politico described Trump’s social media post as “a message alleging [the law clerk] ‘is running this case against me.’ The message was pulled from an account on X with fewer than 200 followers. Trump then linked to an Instagram account for Greenfield’s campaign for a judgeship in Manhattan civil court.”
“’How disgraceful! This case should be dismissed immediately!!’ Trump added. He also posted a photo of her alongside Senate Majority Leader Chuck Schumer and referred to her as ‘Schumer’s girlfriend.'”
And while the judge ordered the social media post taken down, there’s nothing that can be done about the email blast Trump sent to “millions” of his supporters that included the post, as The New York Times reported.
Tuesday evening, despite having already been given one gag order, Trump appeared to tear into the legal system and Attorney General Letitia James in a series of false claims.
After claiming James’ civil lawsuit against him was unconstitutional and election interference, Trump wrote the decision to apply that statute to him “was done by Radical Left Marxists design, and is not the America we know.”
“It is so unfair that I am being tried under Section 63(12), which is unconstitutionally being used to punish me because I am substantially leading Crooked Joe Biden in the polls,” Trump wrote on Truth Social. “It is a Consumer Protection Statute, and not meant, at all, for Election Interference purposes, which is what this is all about! Under this Section of the law, I am not even entitled to a JURY (there is no checking of a box alternative!).This was done by Radical Left Marxists design, and is not the America we know. MAKE AMERICA GREAT AGAIN!”
As The New Yorker reported last week, the law Trump is referring to was “passed at the behest of one of” James’ “Republican predecessors, Jacob Javits.”
‘Terrorist Attacks’: Murphy and Cornyn Slam House GOPers Over McCarthy Ouster
After U.S. Rep. Matt Gaetz (R-FL) and seven of fellow far-right House Republicans voted to oust their own Speaker of the House for supporting a bipartisan vote to keep the federal government of the United States from a shutdown, a powerful Senate Republican and Democrat are both strongly denouncing the work of the few GOP extremists who toppled Kevin McCarthy.
U.S. Senator John Cornyn, a hard-core Republican of Texas and a former member of the Senate Republican leadership team, blasted the eight House Republicans for their “terrorist attack,” and warned it will happen again.
“We saw a similar thing happen to Boehner, Ryan, and now McCarthy. I’m sure the next speaker is going to be subjected to the same terrorist attacks,” Senator Cornyn said, according to HuffPost’s Igor Bobic.
Responding to a Texas radio talk show host from his official social media account, Sen. Cornyn added, “A handful [of] House members just want to blow up the institution and themselves in the process. Sad.”
U.S. Senator Chris Murphy (D-CT) called the ouster “a deeply embarrassing moment for America. A consequence of a Republican Party that has become so radicalized that it can no longer function as an organized political party.”
“Nobody should be rooting for this circus,” added Sen. Murphy in video recorded as he watched the House voting to remove McCarthy as Speaker. He warned that the ouster of McCarthy will now take the House away from the critical work of keeping the government open after November 17, “instead of working on a budget.” And he warned that no new funds to help Ukraine defend itself against Russian President Vladimir Putin’s war have been authorized.
“These are life and death stakes,” Murphy said, lamenting this “makes us look so weak and foolish around the world.”
Let me tell you about the real world consequences of Kevin McCarthy’s ouster as Speaker. No one should celebrate this day. This level of dysfunction is terrible for America. pic.twitter.com/7NsQrz7Pro
— Chris Murphy 🟧 (@ChrisMurphyCT) October 3, 2023
Watch Sen. Murphy’s remarks above or at this link.
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