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Former President Donald Trump's former legal advisor John Eastman penned a 2020 election memo that urged Republican-controlled state legislatures to overrule certified election results based on mere accusations of fraud.
While Eastman's theory of the power of state legislatures to reject certified elections was never put to the test, The Atlantic reports that another potentially radical interpretation of state legislatures' powers has made its way to the United States Supreme Court.
Over the past several months, many legal experts have penned "friends of the court" briefs debating Moore v. Harper and the constitutional arguments for and against it.
At the case's heart is a debate over the power of state legislatures that is based on the following words in the United States Constitution: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations."
State governments set the rules for federal elections and state races. In some states this year, they elected a governor and a U.S. Senator on the same ballot, because the Constitution says they can decide how their elections work. The state legislative theory uses the words "the legislatures thereof" to justify other state-level entities like courts or state legislatures intervening.
"At the center of Moore is a ruling by the North Carolina Supreme Court throwing out an aggressively gerrymandered congressional map put together by the state’s Republican legislature, which the court found violated the state constitution," the Atlantic explained. "The GOP lawmakers are now challenging that ruling before the Supreme Court, arguing that, under the independent state legislature theory, the state court lacked the authority to involve itself in the legislature’s work."
The Supreme Court's intervention in the 2000 Florida recount has resurfaced in this argument, in part because former Chief Justice William Rehnquist wrote in his concurrence for Bush v. Gore that the Constitution's “legislature thereof” language could allow Florida courts to interpret the state’s own election law: “The text of the election law itself” as written by the state legislature, Rehnquist wrote, “and not just its interpretation by the courts of the States, takes on independent significance.”
Law school professors Leah Litman and Kate Shaw, however, have written a reply brief to the North Carolina legislators arguing that using this approach would rewrite the electoral process entirely.
Furthermore, argues election law expert Rick Hasen “a muscular reading of the independent state legislature theory would provide a fig leaf for state legislators to try to reverse presidential election results and overturn the will of the people in a presidential election.”
Speaking about it to The Atlantic, Hasan was hopeful that the judiciary would know better than to step into something like this. Still, there's a fear that the Supreme Court might “conclude it is a political question the courts can stay out of."
Hasen’s letter to the court joined with longtime Republican elections lawyer Benjamin Ginsberg and a group of conservative lawyers led by former Judge Thomas Griffith warning that a flood of lawsuits challenging elections would follow. That could, in turn, fuel false claims of election fraud or a leader's claims that any election they lose is "rigged."
Ginsberg was particularly dire in his warning about what such a change would mean, and he argues that “the credibility of the electoral system” will be a “guaranteed casualty.”
During a Tuesday interview with right-wing host Charlie Kirk, Lake said that she wakes up every day "ready to fight" despite losing the election.
"God never said this was going to be easy, Charlie," the candidate opined. "But He put us here at this moment for a reason. He doesn't make mistakes. He knows that we are the people to fight through this and save our country. I truly believe that. And this is not hyperbole."
"It is our moment right now, Charlie, to prove that we love this country, to prove that we're in it for the fight," she added. "Look at China. If we don't stand up right now, we will become China. And I'm not talking about these heroic people in China. I'm talking about we will become slaves because globalism, that's what it has in mind for us. We become slaves to a system."
Lake called on her supporters to "stand up and fight every day."
"There's no other choice but to stand up and fight," she said. "And if we don't stand up and fight, what are we telling our grandkids and our children? That we don't care about their future?"
Watch the video below or at this link.
Longtime Arizona Central columnist E .J. Montini could barely control his amusement on Tuesday after the two Republican supervisors tasked with certifying the 2022 election results refused to do so even though Republican Kari Lake was the recipient of 58.9 percent of the votes and two other Republicans hold huge voting advantages.
CNN reports that "by a 2-1 vote Monday morning, the Republican majority on the Cochise County Board of Supervisors pushed back certification until Friday, citing concerns about voting machines."
Furthermore, CNN notes that "Cochise’s action could put at risk the votes of some 47,000 county residents and could inject chaos into the election if those votes go uncounted."
Montini reacted to this by pointing out that Gov-elect Katie Hobbs is now being forced to sue the district to do their jobs and certify the votes that give a boost to her opponent's overall vote total.
As Montini sees it, if the Cochise Country GOP supervisors are being forced by Hobbs to certify the Kari Lake-favoring votes because they think her election results in their district is fraudulent, then she must "stink" at cheating.
"Either the conspiracy theorists and election deniers are totally wrong about Gov.-elect and current Secretary of State Katie Hobbs, or she is really, really bad at cheating," he wrote before adding an exasperated, "I mean, come on. This is a gift, a freebie, a waist-high fastball served right down the middle of the plate just asking for Hobbs to knock it out of the park."
As he explained, "If Hobbs and her office chose not to follow the law and, essentially, look the other way, it would be a bonanza for Democrats, pennies from heaven," before elaborating, "Cochise County is heavily Republican. According to records on the county’s website, Republican Juan Ciscomani received nearly 14,000 more votes than Democrat Kirsten Engle in their race for Arizona’s 6th congressional district. Likewise, Republican Tom Horne received 9,000 more votes than Democrat Kathy Hoffman in the contest for Superintendent of Public Instruction."
"If the supervisors were to refuse to certify their election results and, as the law provides, “disenfranchise all of the voters in Cochise County”, Democrats would have enough votes from the other 14 counties to win both of those races," he continued before urging Hobbs to call their bluff and hand her more Democratic support.
"Let the goofball Republican majority on the Cochise County board – who, ironically, squawk about non-existent voting irregularities – negate the votes of tens of thousands of their residents, the majority of them from their own party," he wrote before quipping, "There would be no easier way to 'steal' a couple of elections."
You can read more here.