Inside the Supreme Court Case That Could Break American Democracy

inside-moore-v-harper-supreme-court-case-that-could-end-democracy

United States Supreme Court Associate Justice Samuel Alito poses for an official portrait at the East Conference Room of the Supreme Court building on October 7, 2022 in Washington, DC. (Alex Wong/Getty Images)

On Wednesday the Supreme Court hosted nearly three hours of oral arguments in a case many experts say could do more damage to democracy than anything since Donald Trump’s attempted coup. Moore v Harper revolves around an idea cooked up on the fringes of conservative legal thought that could turn federal elections into statewide power-grabs, and possibly do more to weaken the power of voters’ ballots than gerrymandering ever could. 

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Check out Liz Landers’ report for VICE News Tonight on Wednesday’s arguments and what’s at stake in the ongoing assault on fair and representative voting. 

There’s been plenty of good analysis on the arcane legal readings and textual interpretations driving “independent state legislature” theory. So let’s take a second to talk about the politics. 

Why is a right-wing theory that even conservative legal scholars call obtuse and “indefensible” on the cusp of altering federal elections? For the same reason Trump’s self-preserving lies about a stolen election found such fertile ground in the GOP base, and why they spawned an entire political movement more than happy to excuse a coup: Republicans are tired of sharing power. 

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The case comes from North Carolina, where Republicans have tried to manipulate their way out of a pesky evenly-divided electorate. In 2016 they passed voter ID and suppression laws so biased that a federal court struck them down for targeting Black voters with “almost surgical precision.” After that, they used their control of the state legislature to attempt lopsided gerrymanders designed to cement GOP control. Only those plans were thwarted by Democratic judges and, more recently, a Democratic governor with veto power. 

This content comes from the latest installment of our weekly Breaking the Vote newsletter out of VICE News’ D.C. bureau, tracking the ongoing efforts to undermine the democratic process in America. Sign up here to get it in your inbox every Friday.

Ordinary checks and balances can be frustrating. They make it hard for one branch of government to run roughshod over another. And if those branches share the power to regulate elections, that can help keep the basic functioning of democracy from becoming too partisan. 

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When Trump tried to overturn his 2020 loss in the courts, his lawyers often tried an argument that can get around all of this bother: Courts and governors should have no power to stop state legislatures from making the rules, or even determining the results of federal elections. Instead, state legislatures should have free rein. Judges all over America shot down the idea. But for North Carolina Republicans it was an inspiration. 

Upset over a district map that would eventually produce a 7-7 party division congressional seats, they sued. Why shouldn’t the heavily-gerrymandered, GOP-controlled legislature get to make all the rules? Moore v Harper was born. 

Ben Ginsburg, the GOP election attorney and opponent of Moore v Harper, told reporters this week that  “independent state legislature” doctrine is “an extremely radical theory.” 

“If a legislature said, ‘My, there was an incredible amount of fraud in this election… we’re not going to certify it because we just don’t trust the vote,’ they would have the authority to do that,” he warned.

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There are lots of legal, procedural, and Constitutional reasons the “independent state legislature” theory is the huge threat to democracy advocates warn. The political reason is simple: It’s born of  the same rotten thinking that gave us Jan. 6, the coup attempt, and voter suppression. The justices seemed skeptical of its wisdom, though it’s hard to know how they’ll rule in the spring. If they enable it, they’ll risk a partisan weaponizing of elections that will outlive Trump by decades. 

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U.S. House Minority Leader Rep. Kevin McCarthy (R-CA) speaks during his weekly news conference June 25, 2020 on Capitol Hill in Washington, DC. (Alex Wong/Getty Images)

U.S. House Minority Leader Rep. Kevin McCarthy (R-CA) speaks during his weekly news conference June 25, 2020 on Capitol Hill in Washington, DC. (Alex Wong/Getty Images)

House un-American activities, committee

Ever since he called Trump responsible for Jan. 6, and then told his colleagues Trump should resign the presidency, House GOP Leader Kevin McCarthy has been on a mission to salvage his future speakership. I harp all the time on how McCarthy rushed to rehabilitate Trump, fought to block an investigation of the insurrection, refused to testify, and publicly threatened witnesses who dared cooperate.

Now McCarthy’s aspirations dangle just beyond his grasp. He’s short of the votes to become Speaker, and won’t take the gavel unless Trumpist House Republicans are convinced he remains obediently pro-coup. Viewed through the lens of his shaky aspirations, McCarthy’s threat against the January 6 committee this week makes sense. McCarthy’s pretext is that he’ll investigate the committee’s methods and deliberations for signs of bias or rule breaking. The reality is that the Trumpist wing  McCarthy’s party demands that the history of the coup be falsified and that its most violent participants are recast as heroes. 

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(Don’t just take my word for it, ask the family of Capitol Police Officer Brian Sicknick, who died as a result of the Jan. 6 attack.) 

One complication for McCarthy is that the committee’s final report, like its televised testimony, is very likely to be a damning record of Republicans’ attempt to overthrow the 2020 election and abuse the Constitution to keep Trump in power. And so McCarthy must do his best to undermine it. 

But the committee still has a few weeks of life left before the demagoguery begins. And now committee Chair Benny Thompson says the panel will refer (yet to be named) individuals to DOJ for criminal prosecution. Names under consideration, in addition to Trump, include Mark MeadowsJeffrey Clark, John Eastman and America’s Mayor, Rudy Giuliani. The referrals are less important than they were in the days before DOJ moved off the mark and launched its own criminal inquiries. But they could still create an important expectation among the public and journalists of who’s left a charge-worthy trail of evidence. 

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They could also give more weight to what we already know will be an account of a broad, deep, and multi-fronted attempt to subvert the Constitution for Trump’s benefit. Trump just this week publicly demanded exactly that subversion. And McCarthy’s political survival depends on delivering it.  

T.W.I.S.™ Notes

The legal blows have been piling up for Donald Trump. This Week in Subpoenas, you might say that Trump’s criminal nightmare has officially begun.  

– Dig my new pair of docs

First stop: Mar-a-Lago, where Trump and his lawyers are clashing so heavily with DOJ that prosecutors are asking a judge to slap Team Trump with contempt. It seems prosecutors just can’t get Trump’s people to swear he doesn’t still have stolen government documents. The judge stepped in and ordered Trump to confirm he doesn’t have any more classified papers. 

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Except that he did. A search of a storage unit in Florida turned up two more docs with classified markings. DOJ is locked in (mostly secret) legal wrangling with Trump’s lawyers because the government suspects he still hasn’t handed over all of the government’s property. 

– Just Jack! 

Newly-minted Special Counsel Jack Smith is reaching deep into the swing states as DOJ pursues its criminal investigation of the 2020 coup plot. A federal grand jury issued subpoenas to local election officials in Arizona, Michigan, and Wisconsin, demanding any and all communications “to, from, or involving” the Trump campaign. The requests also name BtV favorites from the Trump legal universe like Giuliani, Sidney “Kraken” Powell, and Cleta Mitchell

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Waning immunity

Remember when Donald Trump crowed that he could “stand in the middle of Fifth Avenue and shoot somebody” and not face any consequences? What started as a skeevy boast of invulnerability is now a legal defense! The US Court of Appeal for the DC Circuit considered this week Trump’s claim that he’s immune from lawsuits seeking accountability for his role in Jan. 6. 

Trump says his campaign to convene a crowd on Jan 6 and his speech urging followers to march on the Capitol were part of his job as president, and thus he’s immune from civil damages relating to them. The Capitol Police and lawmakers suing Trump, Don Jr., and a clutch of right-wing militias say he was really just an aggrieved political candidate perversely defending his own interests. 

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Asked by a judge whether Trump’s presidential immunity would apply even if Trump told his crowd to “burn Congress down,” Trump’s lawyer said that yes, it would. Lower courts have ruled against Trump’s efforts to dismiss the case.  

Kari Lake, Republican gubernatorial candidate for Arizona, speaks during an Arizona Republican Party election night rally in Scottsdale, Arizona, US, on Tuesday, Nov. 8, 2022. (Jon Cherry/Bloomberg via Getty Images)

Kari Lake, Republican gubernatorial candidate for Arizona, speaks during an Arizona Republican Party election night rally in Scottsdale, Arizona, US, on Tuesday, Nov. 8, 2022. (Jon Cherry/Bloomberg via Getty Images)

Without Kari or thought

Losing Arizona GOP governor candidate Kari Lake is promising her upcoming lawsuit against Maricopa County will be “real ugly.” Lake is getting ready to sue in an effort to overturn her loss in Arizona’s largest county and, more realistically, to keep her profile high among Trump’s anti-democratic pundits and base. 

Arizona officials from both parties certified the state’s midterm results Monday. Maricopa officials stated that Election-Day problems with some machines didn’t keep anyone from voting since ballots were counted at other facilities. 

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Lake will want to be a bit careful just how “ugly” she gets, though. A federal judge sanctioned lawyers for Lake and losing GOP Secretary of State candidate Mark Finchem for abusing the court with a frivolous and “vexatious” lawsuit after the election. 

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“I’m just tired of them standing there and saying how wonderful the Capitol police is and then they turn around and … go down to Mar-a-Lago and kiss his ring and come back and stand here and sit with—it just, it just hurts.”

— Gladys Sicknick, on why she refused to shake hands with GOP leaders Mitch McConnell and Kevin McCarthy at a ceremony honoring U.S. Capitol Police including her son, Officer Brian Sicknick. Off. Sicknick collapsed defending the Capitol during the Jan. 6 riot and died the next day.

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All enemies — Lots of GOP lawmakers distanced themselves from Trump’s call to terminate the Constitution, though almost none said it disqualifies him from holding the presidency. But don’t worry about Arizona GOP Rep. Paul Gosar! He wants you to know Trump was right all along. Gosar did the playful little move of posting then deleting that tweet, just so it’s on you to fret about whether he violated his oath “to support and defend the Constitution against all enemies foreign and domestic.”

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Rightie putschers  — German authorities arrested twenty-five members and supporters of an apparent plot to overthrow the government, including possible plans for an armed assault and occupation of the legislature. Sound familiar? Read VICE News’ David Gilbert on how the group was soaked in QAnon “deep state” ideology and how it counts current and former members of the military and among its members. Also sound familiar?

Feds to judge: Lock him up — Federal prosecutors asked a judge to impose a life sentence on one of the men convicted in the “Wolverine Watchmen” plot to abduct Michigan Gov. Gretchen WhitmerProsecutors said Adam Fox was an “active recruiter” in a “bonafide revolution” that included “terrorist acts”  targeting Whitmer over her COVID policies. Fox was granted a mistrial after a hung jury in his first trial but was then retried and convicted with co-defendant Barry Croft. Three others were convicted in the plot, two pleaded guilty, and two were acquitted.

Delegate, insurrectionist, congressman? — Derrick Evans had been in the W. Va. House of Delegates a little more than a month before he was arrested and charged as a Jan. 6 rioter. He was sentenced to three months in prison. Now that he’s out, Evans wants to return to the scene of the crime. So naturally he’s exploring a bid for Congress. 

Rampant voter fraud unlike we’ve ever seen — A conservative Georgia talk show host who’s running for election in January and who claimed the 2020 election was “stolen” from Trump allegedly voted illegally nine times while on probation. Brian K. Pritchard allegedly did the illegal voting while serving a sentence for fraud and theft. 

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Hello! You’ve been referred here because you’re wrong about Twitter and Hunter Biden’s laptop.

FROM TECHDIRT

Cowardice and desperation: How Republicans responded to Trump’s Constitution comment.

FROM THE BULWARK

Trump’s reckoning with the rule of law.

FROM THE ATLANTIC