Thursday, April 28, 2022

"Context Is All"

Okay, so, let's read it.

Trump and the Republicans began executing this first stage of their plan months before November 3, by challenging as violative of the independent state legislature doctrine election rules relating to early- and late-voting, extensions of voting days and times, mail-in ballots, and other election law changes that Republicans contended had been unlawfully altered by state officials and state courts in swing states such as Pennsylvania, Wisconsin, North Carolina and Michigan.

These cases eventually wound their way to the Supreme Court in the fall of 2020, and by December, the Supreme Court had decided all of these cases, but only by orders, either disallowing federal court intervention to change an election rule that had been promulgated by a state legislature, allowing legislatively promulgated rules to be changed by state officials and state courts, or deadlocking 4-4, because Justice Barrett was not sworn in until after those cases were briefed and ready for decision by the Court. In none of these cases did the Supreme Court decide the all-important independent state legislature doctrine.

Thwarted by the Supreme Court's indecision on that doctrine, Trump and the Republicans turned their efforts to the second stage of their plan, exploitation of the Electoral College and the Electoral Count Act. 

I will pause to interject that it isn't clear that any, or even a majority, of those cases would have gone the other way with Barrett making up the 9th vote, or that the Court would have gone full bore for the "independent state legislature doctrine."  We'll come back to that via Judge Luttig's opinion in a moment.

Trump and the Republicans began executing this first stage of their plan months before November 3, by challenging as violative of the independent state legislature doctrine election rules relating to early- and late-voting, extensions of voting days and times, mail-in ballots, and other election law changes that Republicans contended had been unlawfully altered by state officials and state courts in swing states such as Pennsylvania, Wisconsin, North Carolina and Michigan.

These cases eventually wound their way to the Supreme Court in the fall of 2020, and by December, the Supreme Court had decided all of these cases, but only by orders, either disallowing federal court intervention to change an election rule that had been promulgated by a state legislature, allowing legislatively promulgated rules to be changed by state officials and state courts, or deadlocking 4-4, because Justice Barrett was not sworn in until after those cases were briefed and ready for decision by the Court. In none of these cases did the Supreme Court decide the all-important independent state legislature doctrine.

Thwarted by the Supreme Court's indecision on that doctrine, Trump and the Republicans turned their efforts to the second stage of their plan, exploitation of the Electoral College and the Electoral Count Act.

The Republicans' plan failed at this stage when they were unable to secure a single legitimate, alternative slate of electors from any state because the various state officials refused to officially certify these Trump-urged slates.

So part of what's required is enough states, or even one, in 2020, to offer legitimate alternative slates of electors.  The key word there is "legitimate."  It doesn't mean electors proposed by the state GOP (which was tried, in some states).  When they couldn't get the states to play along, the conspiracy relied on Pence and non-legitimate electors to carry the day:

Thwarted by the Supreme Court in the first stage, foiled by their inability to come up with alternative state electoral slates in the second stage, and with time running out, Trump and the Republicans began executing the final option in their plan, which was to scare up illegitimate alternative electoral slates in various swing states to be transmitted to Congress. Whereupon, on January 6, Vice President Pence would count only the votes of the illegitimate electors from the swing states, and not the votes of the legitimate, certified electors that were cast for Biden, and declare Donald Trump's reelection as President of the United States. 

Here's where it gets very speculative (predicting the future cannot be otherwise):

Trump and Republicans are preparing to return to the Supreme Court, where this time they will likely win the independent state legislature doctrine, now that Amy Coney Barrett is on the Court and ready to vote. Barrett has not addressed the issue, but this turns on an originalist interpretation of the Constitution, and Barrett is firmly aligned on that method of constitutional interpretation with Thomas, Alito, and Gorsuch, all three of whom have written that they believe the doctrine is correct. 

They can't get to the Supreme Court without a case that takes them there, and they can't challenge an election on the "independent state legislature doctrine" without acts that seemingly violate that doctrine.  In short, 2024 would have to recreate the situation of the covid pandemic.

The independent state legislature doctrine says that, under the Elections and the Electors Clauses of the Constitution, state legislatures possess plenary and exclusive power over the conduct of federal presidential elections and the selection of state presidential electors. Not even a state supreme court, let alone other state elections officials, can alter the legislatively written election rules or interfere with the appointment of state electors by the legislatures, under this theory.

....

Trump and the Republicans began executing this first stage of their plan months before November 3, by challenging as violative of the independent state legislature doctrine election rules relating to early- and late-voting, extensions of voting days and times, mail-in ballots, and other election law changes that Republicans contended had been unlawfully altered by state officials and state courts in swing states such as Pennsylvania, Wisconsin, North Carolina and Michigan. 

In the paragraph I elided Luttig notes the Supreme Court has never adopted this doctrine.  I quote this to note the basis for the complaint (and invocation of the doctrine) was that election law changes had been implemented because of covid and the immediate response to altered conditions the pandemic required.  Unless they can make that claim again in 2024, or one like it, they can't get to the Supreme Court.  The Court wasn't all that interested in the cases that were brought in 2020, because the courts are notoriously anxious not to interfere in elections.  Bush v. Gore involved enforcing the deadlines of the Electoral Count Act, and even then the Court tried to issue an opinion as minimally as possible (it wasn't possible).  The courts may weigh in on redistricting, but when it comes to elections their most common practice is not to interfere within a certain time close to the election date.  I don't really see even the crazy Roberts court swinging for the fences on this one, or reaching down into the lower courts to pluck up some vaguely relevant case just to impose the independent state legislature doctrine and give Gorsuch and Barrett the warm originalist fuzzies.  It could happen, but it seems about as likely as Pence throwing the election to Trump at effectively one minute before midnight.

Yes, there is this:

Only last month, in a case from North Carolina the Court declined to hear, Moore v. Harper, four Justices (Alito, Thomas, Gorsuch and Kavanaugh) said that the independent state legislature question is of exceptional importance to our national elections, the issue will continue to recur and the Court should decide the issue sooner rather than later before the next presidential election. This case involved congressional redistricting, but the independent state legislature doctrine is as applicable to redistricting as it is to presidential elections.

But the reason the doctrine would have applied in 2020 is because of changes made due to covid.  Unless 2024 reproduces those conditions (or some like them), the doctrine can be imposed and still not be invoked.  Besides, the Court and GOP legislatures are doing enough to suppress the vote as it is.  The efforts Luttig alludes to were all efforts to expand the vote.  We don't seem to be at much risk of that anytime soon.

The Republicans are also in the throes of electing Trump-endorsed candidates to state legislative offices in key swing states, installing into office their favored state election officials who deny that Biden won the 2020 election, such as secretaries of state, electing sympathetic state court judges onto the state benches and grooming their preferred potential electors for ultimate selection by the party, all so they will be positioned to generate and transmit alternative electoral slates to Congress, if need be. 

Well, seeking to; that's not really working out all that well at the moment, and there are laws that could constrain their efforts, or even see them removed from office.  Could it get ugly?  Yes.  Could it result in stolen elections and, effectively, the overthrow of our democratic systems?  No.  Frankly, I'm more worried about the complete evisceration of the Voting Rights Act.  I'd actually kinda like to know Judge Luttig's thoughts on that line of Roberts Court cases.

Although the Vice President will be a Democrat in 2024, both parties also need to enact federal legislation that expressly limits the vice president's power to be coextensive with the power accorded the vice president in the 12th Amendment and confirm that it is largely ceremonial, as Pence construed it to be on January 6.

Vice President Kamala Harris would preside over the Joint Session in 2024. Neither Democrats nor Republicans have any idea who will be presiding after that, however. Thus, both parties have the incentive to clarify the vice president's ceremonial role now.

That much I completely agree with.  It is clear the VP presiding as President of the Senate at the Joint Session called for by the Electoral Count Act is acting in a ceremonial role, as the Joint Session itself should largely be; and that role should be limited as Judge Lutting outlines (arguably it already is, since no law can contradict the Constitution; but it would be good to bring the statute clearly in line with the 12th Amendment).  Congress itself should not have the ability to challenge the election without better grounds and more requirements for the Joint Session recognizing such complaints and acting on them (although it would take the concurrence of both houses under the present statute, and I don't think we ever got anywhere close to the Congress deciding who the POTUS would be).

In short, we had a concatenation of circumstances (covid, primarily) combined with a POTUS who never should have been allowed into the White House on a tour, much less as the chief resident, and a set of laws and practices which were challenged but actually held.  The Supreme Court refused to put a thumb on the scales. Despite Trump's efforts, not one state went along with his insanity, and Pence refused to play his part in a Gilbert and Sullivan production of democracy in America.  Will Secretaries of State go along with Trumpian demands?  If they do, they will have to act alone, and I don't think any individual in office has the courage of those convictions.  Ron DeSantis is acting because the Florida Legislature is giving him what he wants.  He's not ruling by fiat, or in defiance of the rest of the government of Florida.  Nobody bent to Trump's idiotic whims in Georgia, even though Georgia was as Republican as Texas at the time.  "Sympathetic state judges"?  That's rather dismissive of state judges as a whole.  So far only one "sympathetic" federal judge, appointed by Trump, has created any real mischief, and that was over a mask mandate the FAA was probably going to rescind soon, anyway.  Awkward and over-reaching and displaying her complete unfitness for the bench, but we knew that.  Not good, but not exactly the death knell of the Republic.

I'm more worried about the clowns on the Supreme Court.  The real dangers lie in what's going to happen to Roe v. Wade, or the unrolling of everything back to a Lochner doctrine, or even further back to Plessy or Dred Scott (yes, I'm that pessimistic.  No, they can't get around the rock in the river of the 13th Amendment, but they can undo the coverage of the 14th if they choose.  At this point, I wouldn't put it past them.  I'd have said Griswold and Loving were written in stone; but the drilling into that bedrock has begun, and the dynamite is being wired as we speak).

One more irony:  Trump clearly thought his play with Pence was weak, and he was counting on the angry mob to do what Pence would not.  Had it not been for that angry mob, the histrionics of Hawley and Cruz might well have been forgotten long before Inauguration Day, and the investigation into how the objections were coordinated and Trump was pressuring Pence and state legislatures refused to toss democracy overboard for a petty demagogue with small hands, might never have happened.  We are reading Luttig's opinion and talking about his concerns because of the dog that doesn't bark in his column:  the insurrection.  If all you had was Luttig's opinion, you wouldn't know anything happened on January 6, 2021, at all, except that the Joint Session was a bit out of the ordinary.  Luttig's opinion is important to understand the legal process of electing a POTUS, but it is also extremely limited.

And he found it necessary to write it for all the reasons he never bothers to address. And that upon which he is silent, is actually even more important than what he says.  Which puts his opinion in the proper perspective; it seems to me.

ADDENDUM:

A much better (and longer) analysis. Which I may get back to you on , when I’ve finished it.
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