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'uncharted territory' is land mapped for sedition by John Eastman [1]

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Date: 2023-06-20

John Eastman, on the first day of California State Bar Court testified that “if the election had been conducted illegally”, extraconstitutional actions, what Eastman called ‘uncharted territory’ might be justified because of McPherson v. Blacker, 146 U.S. 1 (1892) could allow for state legislatures to act undemocratically and nullify an election. Darn those fringy states’ rights.

If it worked in Bush v. Gore, 531 U.S. 98 (2000), maybe it could work again to allow a plenary power to the state legislature to map uncharted territory in favor of the GOP in 2020. John Eastman is holding to the supposition that elections like those in 2020 Georgia had been fraudulent which could be tested again when indictments come down by using in 2024 an ‘independent state legislature theory’.

PARKS: And what is this theory? Tell us about it. LO WANG: It claims that the U.S. Constitution gives state legislatures the power to control how elections for Congress and for president are conducted without any limits from state constitutions or state courts. Now, state legislatures would still be limited by federal laws passed by Congress and the U.S. Constitution, but under this theory, state legislatures would have almost unchecked power over federal elections for Congress and president. PARKS: You mentioned earlier that this is a fringe legal theory. Exactly how fringe is it? LO WANG: The legal scholars I've talked to tell me this is a very fringe, controversial reading of the U.S. Constitution. Essentially, they told me, it's reading too much into the word legislature and ignoring the fact that state legislatures are created by state constitutions. You know, for many legal scholars, it just does not make sense to argue that state legislatures do not have to follow their own state's constitution or the rulings of state courts. But four conservatives on the U.S. Supreme Court have signaled they're interested in this independent state legislature theory, and three of them have signaled they would likely side with the North Carolina Republican lawmakers in this case. And a Supreme Court endorsement of this theory could have implications far beyond North Carolina and election laws across the country. PARKS: Walk us through that. Like, what would those implications look like? LO WANG: Right now, election experts are saying there could be a wide range of ripple effects depending on how the court rules. It could become easier in some states for state lawmakers to gerrymander congressional maps to benefit their party. You know, I talked to Carolyn Shapiro, a professor at the Chicago-Kent College of Law. And Shapiro told me that it could also upend election rules and bring a lot of chaos to election officials. CAROLYN SHAPIRO: Almost every state has what we might call unified elections, so they hold elections at the same time for different offices at different levels of government. Under the independent state legislature theory, there would be the potential that you would have to have different ballots, that you would have to have different registration systems, that you would have to have different voter ID laws. There would be all kinds of things that might be impossible to operate in that unified way. PARKS: Looking ahead specifically at 2024, how exactly could this Supreme Court case end up affecting that presidential election? LO WANG: There's a possibility that the court's endorsement of this theory could provide the legal justification for another attempt of this fake elector scheme that former President Donald Trump's supporters were trying to carry out to change the outcome of the 2020 election. The dean of the University of Illinois College of Law, Vikram Amar, laid out a hypothetical scenario for me. VIKRAM AMAR: The legislature passes a law that says, from now on, we, the elected state legislature, shall decide which electors shall represent the state in the Electoral College. And that might run directly afoul of the state constitution, which might say, as it does in, say, Colorado, that the people directly pick the electors to the Electoral College for presidential elections. But if this independent legislature theory were embraced, then the legislature could ignore that provision of the state constitution, disregard the wishes of the state voters, and do what it wants, notwithstanding the fact that the legislature is a creation of the state constitution itself. www.npr.org/...

The validity of a state law providing for the appointment of electors of President and Vice President having been drawn in question before the highest tribunal of a state as repugnant to the laws and Constitution of the United States, and that court having decided in favor of its validity, this Court has jurisdiction to review the judgment under Rev.Stat. § 709. Under the second clause of Article II of the Constitution, the legislatures of the several states have exclusive power to direct the manner in which the electors of President and Vice President shall be appointed. Such appointment may be made by the legislatures directly, or by popular vote in districts, or by general ticket, as may be provided by the legislature. If the terms of the clause left the question of power in doubt, contemporaneous and continuous subsequent practical construction has determined the question as above stated. The second clause of Article II of the Constitution was not amended by the Fourteenth and Fifteenth Amendments, and they do not limit the power of appointment to the particular manner pursued at the time of the adoption of these amendments or secure to every male inhabitant of a state, being a citizen of the United States, the right from the time of his majority to vote for presidential electors. A state law fixing a date for the meeting of electors differing from that prescribed by the act of Congress is not thereby wholly invalidated, but the date may be rejected and the law stand. supreme.justia.com/...

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[1] Url: https://www.dailykos.com/stories/2023/6/20/2176521/--uncharted-territory-is-land-mapped-for-sedition-by-John-Eastman

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