SCOTUS Alert: The Independent Legislature Case, the heart of the January 6 Coup Theory, and the Importance of your 2022 Vote

Overlooked SCOTUS big deal: Today the Roberts Court decided to hear the “independent state legislature” case. (My explainer below)

Urgent November 2022 campaign message:
“If you don’t want the Roberts Court and a Trumper Gov & AG to throw your votes for President to Donald Trump — like Trump plotted in the January 6 coup —
Vote for Democrats for Governor, Attorney General, and State Legislators!”

The “independent state legislature” doctrine at the heart of the Trump/Eastman/Sen Ron Johnson conspiracy to disenfranchise the voters and certify electors chosen by Trumper state legislatures (I.e., fake electors).

The Constitution’s election clause says that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” This clause is most relevant to redistricting cases, but the independent state legislature doctrine would also give state legislatures — as opposed to judges ruling on the state and federal constitutions, and as opposed to governors and expert agencies — control over voter registration, early voting, voting by mail and even the final selection of presidential electors themselves.
In the past, judges have interpreted the clause to give states that power broadly, shared between the executive, legislative and judicial branches, and with the state and federal constitutions as limits on partisan power grabs.

Now the argument is that state legislatures have that power solely, coincidentally when most key states have super-gerrymandered rural-skewed Republican legislatures.

There are likely five votes for this pseudo-textualist/originalist nonsense.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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