Donald Trump's legal adviser John Eastman, the author of the so-called "coup memo," which made a legal case for why Vice President Mike Pence can stop the 2020 election certification, also penned a case that state legislatures could overturn the will of voters. This new idea is being funded by conservatives to the tune of over $1.3 billion.
Sounding the alarm on Wednesday was UCLA School of Law professor Rick Hasen, who said that even the so-called "Independence Day Legislature Theory" wouldn't support some of what Eastman is arguing in his new plot.
As MSNBCs Chris Hayes explained it, Eastman basically said, that "state legislatures, according to the Constitution, are the ultimate final arbiters are of how elections are decided. They have, as they like to say, plenary power, government power. The state supreme court that interprets the election on the state doesn't matter. Only the state legislature regulates federal elections which, in its most extreme form would mean the Wisconsin legislature which we discussed last night, widely gerrymandered, could just decide it wanted to give its electors to Donald Trump, even though state law in the state Constitution are required to give that -- popular vote in the state. They can say, no, we don't want to do that."
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It's a "crank" theory, he explained, but it's one that is being not only promoted but planned by a group of Republicans who fear that they're about to lose power to the majority of Americans. Hayes went on to call it "a loaded gun aimed directly at the heart of American self-governance."
Hasen, who runs the Safeguarding Democracy Project, explained that there's no legal basis for what Eastman is proposing, but the question remains, who is going to stop them?
What Eastman is proposing is "even after the legislature had chosen, we are going to have a popular vote for president, you could take that back and start over," said Hasen. "So, that is more extreme, and I didn't see any of the amicus briefs going quite that far."
"First they would be pretty dire even putting aside the potential for election subversion," Hasen explained. "It means that state supreme courts couldn't apply the state Constitution to limit the state legislature from violating peoples voting rights. It would empower two bodies. One, it would empower state legislatures that could run roughshod over election administrators and overall state actors. So, they would be empowered. And the other would empower is the United States Supreme Court because it would turn every dispute about what an election law means in the state, as applied to the federal election, into a federal constitutional question. And the ultimate arbiter of that is, of course, the U.S. supreme court. It is a kind of feedback loop where the court is kind of not only giving more power to state legislatures. It would be giving more power to itself."
The overall question about giving power to choose the election to the Supreme Court, however, is whether they'd choose the same candidate the people would.
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