MY HAIR IS ON FIRE! HOW ABOUT YOURS?

There are four items on presidential elections I’ve read recently that I think are related.  Each one is troubling in its own right, but in combination they set my hair on fire.  Granted, my hair has been smoldering for at least five years now, but where there was once only smoke, there is now fire, and it’s a four-alarmer.  The incendiary items I am referring to are:

• the six-point memoTrump lawyer John Eastman wrote outlining how to exclude a sufficient number of Electoral College votes certified for Joe Biden to overturn the 2020 election,

•  the op ed by neo-conservative Robert Kagan published in the Washington Post, which warns that the United States is already in a constitutional crisis,

• a recent opinion piece in Politico by Aziz Haq, Professor of Law at University of Chicago, entitled, “The Roberts Court is Dying.  Here’s What Comes Next,” and

•  an article from August in Slate by Richard L. Hasen, Professor of Law at U. C. Irvine, entitled, “Trump is Planning a Much More Respectable Coup Next Time.”

I’ll start with the Eastman memo.  The former clerk to Supreme Court Justice Clarence Thomas (this relationship has important implications for the Politico and Slate articles) laid out a scheme in which then-Vice President Pence would declare that because of unresolved disputes in Arizona and six other swing states over the validity of their slates of electors (false), their Electoral College votes could not be counted pursuant to the Electoral Count Act, which Eastman said was unconstitutional anyway (false; its constitutionality has not been adjudicated).  Then Pence (pursuant to a disputed reading of the Twelfth Amendment) would either count only the uncontested votes, which would give Trump 232 and Biden 222, or throw the matter over to the House of Representatives, where each state would have one vote, giving 26 Republican state votes to Trump and 24 Democratic state votes to Biden.  Voila!  Trump wins. 

The important thing here is not to get lost in Eastman’s maze of statutory and constitutional language, although that is unavoidable.  Legal complications plus uncertainty are useful tools to obscure dirty tricks.  What is critical is to realize that this is what Trump tried to do on January 6:  throw out validly certified Electoral College votes for Joe Biden.  Only because Pence balked did the scheme fail. 

However, if you want to get down in the weeds, here is what constitutional lawyer Ned Foley had to say about Eastman’s legal arguments in Election Law Blog (emphasis added in italics):

I’ve read that the Eastman memo proves the need to reform the Electoral Count Act. To be clear, I’ve long been strongly in favor of reforming the Electoral Count Act. But what Eastman proposed was for Pence to bypass the ECA, declaring it to be unconstitutional, and purporting to proceed on his own authority based on his [Eastman’s] own (highly disputed) interpretation of the Twelfth Amendment. Improving the ECA might reduce the risk of a future Vice President trying to make that kind of move, because with a better ECA in place, it would make that kind of unilateral power grab by a Vice President even more brazen and politically untenable. But ECA reform can’t eliminate this risk entirely. To do that, it would be necessary to undertake the even more difficult task of revising the Twelfth Amendment itself, to remove its frustratingly ambiguous language about the process of counting electoral votes in the joint session, including the role of the Senate President.

So that’s comforting.  A constitutional amendment--in this Congress, in these Divided States of America?!  A snowball’s chance in Hell springs to mind.

And if you want to understand just how frustratingly ambiguous the Twelfth Amendment is, here is a link to Foley’s article published in University of Miami Law Review, which excerpts and thoroughly analyzes the relevant provisions of the Twelfth Amendment.  Foley calls it a ticking time bomb (emphasis added in italics):

However, the preceding sections do demonstrate that the failure of the Framers to foresee electoral disputes and the resulting ambiguity in the Constitution has created a system wrought with unanswered questions and conflicting precedents. If history is any indication, the procedure and subsequent outcome of any future dispute that makes it to Congress will likely be determined not by any statute or constitutional text, but by the partisan makeup of both houses. Additionally, because of the underlying ambiguities, the gravity of the stakes, and the precedent of Bush v. Gore, the Supreme Court is likely to remain an unpredictable "wild-card" factor in any future electoral dispute. Both of these situations are undesirable, and politicians and scholars have recognized the problems of the ambiguity of the Constitution on these points for two centuries. The situation is like a ticking time bomb, waiting to explode under the right set of facts,…

Electoral disputes, Constitutional ambiguity, unanswered questions, conflicting precedents, and the right set of “facts” manufactured by a charismatic leader---perfect kindling for an explosive 2024!

So much for incendiary bomb #1.  Moving on to incendiary bomb #2, the Kagan op ed. I urge you to read it, keeping in mind that Kagan is a neoconservative who co-founded the Project for a New American Century with equally neoconservative Bill Kristol.  (If you want to know more about Kagan’s bona fides, here is his Wiki.)

Kagan begins with this flame thrower:

The United States is heading into its greatest political and constitutional crisis since the Civil War, with a reasonable chance over the next three to four years of incidents of mass violence, a breakdown of federal authority, and the division of the country into warring red and blue enclaves.

There is a lot besides this gut-punch opener to give pause in Kagan’s 9-page essay, but this is what struck me most:  The Republican Party has learned from its mistakes.  Why wait until January 6 to stage a coup?  Why not make a classic end-run around the federal system and go straight to the states?  From Kagan:

As of this spring, Republicans have proposed or passed measures in at least 16 states that would shift certain election authorities from the purview of the governor, secretary of state or other executive-branch officers to the legislature. An Arizona bill flatly states that the legislature may “revoke the secretary of state’s issuance or certification of a presidential elector’s certificate of election” by a simple majority vote.

Should it become law, this breathtaking bill does not require that the Arizona legislature find a pattern of fraud, or a smattering of irregularity, or even one single case of illegal voting.  There are no preconditions or standards for the legislature’s action, no requirement that it find just cause to act, no hearings, nothing.  Zip.  The provision is triggered whenever the legislature disagrees with the voters on who should have won the presidential election.  Here is the relevant text from the bill linked above:

B. NOTWITHSTANDING SUBSECTION A OF THIS SECTION, THE LEGISLATURE

32 RETAINS ITS LEGISLATIVE AUTHORITY REGARDING THE OFFICE OF PRESIDENTIAL

33 ELECTOR AND BY MAJORITY VOTE AT ANY TIME BEFORE THE PRESIDENTIAL

34 INAUGURATION MAY REVOKE THE SECRETARY OF STATE'S ISSUANCE OR CERTIFICATION

35 OF A PRESIDENTIAL ELECTOR'S CERTIFICATE OF ELECTION. THE LEGISLATURE MAY

36 TAKE ACTION PURSUANT TO THIS SUBSECTION WITHOUT REGARD TO WHETHER THE

37 LEGISLATURE IS IN REGULAR OR SPECIAL SESSION OR HAS HELD COMMITTEE OR

38 OTHER HEARINGS ON THE MATTER. 

My intuition tells me that this statute was written by the Federalist Society (the organization responsible for the selection of the current six conservative Supreme Court Justices and many of the federal judges appointed by Trump).  It also tells me that it will be used as a template for similar legislation in other swing states.  If Kagan shares my gut instincts, he doesn’t say so, but he does say this: “The stage is thus being set for chaos.” And chaos is not democracy’s friend.

Kagan thinks he has a fire extinguisher to put out the bonfire of voting rights though:  A national unity coalition between anti-Trump Republicans, (including those seven Senators who voted to convict in the second impeachment +), and Democrats:

Those who criticize Biden and the Democrats for not doing enough to prevent this disaster are not being fair. There is not much they can do without Republican cooperation, especially if they lose control of either chamber in 2022. It has become fashionable to write off any possibility that a handful of Republicans might rise up to save the day. This preemptive capitulation has certainly served well those Republicans who might otherwise be held to account for their cowardice.

Kagan continues:

The destruction of democracy might not come until November 2024, but critical steps in that direction are happening now. In a little more than a year, it may become impossible to pass legislation to protect the electoral process in 2024. Now it is impossible only because anti-Trump Republicans, and even some Democrats, refuse to tinker with the filibuster.

Romney & Co. don’t have to abandon their party. They can fashion themselves as Constitutional Republicans who, in the present emergency, are willing to form a national unity coalition in the Senate for the sole purpose of saving the republic. Their cooperation with Democrats could be strictly limited to matters relating to the Constitution and elections.

Heading into the next election, it is vital to protect election workers, same-day registration and early voting. It will also still be necessary to pass the John Lewis Voting Rights Advancement Act, which directly addresses the state legislatures’ electoral power grab.

If only!  Kagan says we are living in a time of hope and illusion.  Ironically, his national unity coalition falls squarely into that category, as it indulges in wishful thinking.  There will be no cooperation from Republicans on the issue of voting.  Moreover, Kagan doesn’t answer the important question he raises, which is WHY these anti-Trump Republicans have refused to work with Democrats to pass legislation limiting states legislatures’ ability to overturn the results of future elections.  And he fails to raise and answer a similar question, which is WHY do Republican donors, business interests, and party operatives stay silent on, or even actively support with lobbying and campaign contributions, such antidemocratic measures.  I willingly concede the Trump loyalist voters may be the nice neighbors, good parents, job-generating small business owners, and pillars of the community, some of whom I saw storming the Capitol, and I suspect they are willing to follow Trump off a cliff because they are, for reasons I don’t understand, susceptible to a charismatic leader who confirms their fears that the Democrats want to destroy their way of life, but these others—the pols and the “Greenwich Republican” corporate types--they just want money and power.  They are only too happy to put self-interest ahead of the interests of the country, revealing that “America First!” really means “Me First!”

But let’s look more critically at Kagan’s urgent call to enact the John Lewis Voting Rights Advancement Act (H.R. 4.), the key to stopping a state legislature’s electoral power grab, and whether its enactment would be held constitutional.  The Act passed the House on August 24 with no Republican votes, and it faces steep GOP opposition in the evenly divided Senate.  Already, Republicans have characterized the legislation as a federal overreach into the state's role in election processes.  That is the argument to keep your eye on, should the Act be passed (unlikely in my view) and one that brings me to incendiary bomb #3, the Politico opinion piece on the direction of the current Supreme Court, and incendiary bomb #4, the Slate opinion piece on Trump’s Coup 2.0.

After reading these two opinion pieces, both of which focus on the “independent state legislature doctrine,” I think there is reason to fear that the current six conservative, “originalist” Justices on the Supreme Court might actually uphold the Arizona law and strike down the John Lewis Act. 

The independent state legislature doctrine derives from an originalist view of Article II, Section 1 of the Constitution, which delegates to the states the right to appoint Electors in federal elections for president and vice president.  Deceptively simple, it states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The question raised by the independent state legislature doctrine is whether in appointing electors to certify who won a presidential election, the state legislatures are absolutely independent of and superior to all other state organs, such as election commissions, courts, or the governor, or if they are constrained by state or federal constitutional law to act in a “Manner” consistent with their own enacted state procedural rules and consistent with the substance of state and federal constitutions.  This, as it turns out, is an extremely complicated legal question, and I think you can see that Article II, Section 1, in its maddening simplicity, offers no guidance on its resolution.

To make matters worse, the question is not at all theoretical.  It was at the heart of Bush v. Gore:  Did the Florida Supreme Court have the right to order recounts, or did it usurp the legislature’s power by so doing?  We all know how that turned out, and even though that decision was stated to be unique to that particular set of circumstances, (in other words the decision was not be considered as legal precedent), it has indeed been rearing its head of late with respect to where the Roberts Court is headed. 

Aziz Haq, writing in Politico, considers the effect Chief Justice John Roberts’ waning influence might have on partisan, antidemocratic state laws regulating federal elections.  He cautions (emphasis added in italics):

All it takes to pry open the chief’s fragile grip on the court, and to fully bury “the Roberts Courts,” are sufficiently polarized state legislatures and activist allies too impatient to let the slower, more legalistic process that Roberts would follow play out.

As a result, perhaps the most important zone of coming conflict on the bench, and the most likely to further sap the chief’s leadership, is the inevitable swell of election-related cases that will hit next year in the run-up to the 2022 and 2024 elections.

It is easy to focus on the court’s decision to not intervene during the 2020 race, and assume that the post-Roberts Court would not accept an inevitably partisan invitation to stymie a democratic vote-count. But this would be to forget that just days before the November election, Justice Samuel Alito — joined by Justices Neil Gorsuch and Clarence Thomas — proposed just that in Pennsylvania. Had the ballot counts been slightly closer, it is more than conceivable that a ‘shadow docket’ order stopping Pennsylvania election workers in their tracks would have been issued [as in fact happened in Bush v. Gore].

The legal basis for their threat — the idea that Article I, Section IV and Article II, Section 1 of the Constitution gives state legislatures a monopoly over all things electoral to the exclusion of state courts and election boards — featured heavily in the Trump campaign’s arguments for nullifying the 2020 result. Rooted in one of the opinions of the infamous Bush v. Gore case, this argument provides open-ended license to the Supreme Court to revoke actions by the state officials and judges who inevitably end up implementing an election on the ground that the state legislature would have done otherwise. And it is perfectly tuned to shadow docket emergency-motions.

Expect, therefore, the “independent legislature” doctrine and other creative readings of the Constitution to flourish on the shadow docket as election season rolls around.

[A point of information:  The shadow docket is the informal term for expedited rulings issued by the Supreme Court outside its regular procedure of hearing oral arguments and handing down lengthy opinions.  Shadow docket rulings are usually short, often unsigned, emergency orders to intervene (or not) in high-profile litigation before lower courts issue their rulings.  These orders frequently do not explain the Court’s reasoning or indicate how each Justice voted.]

Hasen, writing in Slate, shares Haq’s concern and explores how the independent state legislature doctrine could become determinative in 2024: 

It’s easy to picture how this might play out in the next presidential election. Imagine that a state legislature sets forth general rules for conducting the 2024 election, but it does not provide every detail about how the election is run. Republican legislatures in states won by the Democratic candidate could seize on some normal election administration rule created by a state or local election administrator or some ruling from a state court, and argue that implementation of the rule renders the presidential election unconstitutional, leaving it to the state legislature to … take matters into its own hands and choose its own slate of electors.

Isn’t that the scenario that could arise under the Arizona bill?  If it were to become law and its constitutionality were challenged, I think this current Supreme Court, given its stated openness to the independent state legislature doctrine, may have already signaled its willingness to uphold such a law. 

Under that same doctrine, the John Lewis Voting Rights Advancement Act may also be in jeopardy.  The Act, if it becomes law, would require that a state obtain preclearance from the Department of Justice before any changes to its federal voting practices take effect.  I think this current Supreme Court might very well find that any such attempt to fetter the state legislature is a usurpation of powers delegated to the state under Article II, Section 1, basing its ruling on the independent state legislature doctrine.

Would the Supreme Court actually do such a thing and set the Constitution on fire?  I don’t know.

But one thing is pretty clear:  these four incendiary bombs—the Eastman memo, Arizona’s and other states’ attempts to wrest control of presidential elections away from the voters, the sharp rightward swing of the Roberts Court, and the wobbly Constitutional and federal statutory architecture supporting how presidents are elected-- are related and they are set to explode into a giant ball of fire, perhaps as early as 2022, but definitely in 2024. 

I realize all this is a bit arcane, and that’s the problem.  If constitutional scholars can’t decide what the law is on resolving presidential elections, then how can the American voter know if his, her, or their vote has been respected?  When confusion reigns, it gives cover to those eager to put “Me First!” above all else.

So, yes, my hair is on fire and I wonder, is yours?

Keep it real!  And wear your damn mask!

Marilyn