W.Va. Elect helped popularize a radical legal theory now on the U.S. Supreme Court | Tuesday News

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In front of a freezing crowd at a march for Trump rally outside the West Virginia State Capitol in December 2020, Secretary of State Mac Warner said there was not enough time to assess Donald Trump’s fraud allegations in the 2020 election. But, he said, that could be circumvented all together and still see Trump declared the winner.

“There were votes that were counted outside the legality of the Constitution,” Warner told the crowd at the rally. “We’re just saying the election itself has been so messed up that it has to go to Congress” – where the US House of Representatives could have declared Trump the winner despite his election defeat.

“We are at a very exciting time,” Warner said at the rally, organized by the same group that organized the rally on Jan. 6, 2021, before the riot at the U.S. Capitol. “It’s like in a Tom Clancy novel or something.”

Warner echoed an argument before the US Supreme Court that voters in swing states won by Democrat Joe Biden should be disqualified. The day before Warner’s speech, West Virginia Attorney General Patrick Morrisey signed on a writ in support of this case.

Two of the three U.S. House members from West Virginia, Carol Miller and Alex Mooney, signed another brief asking for the same thing. They would end up voting against certifying some of Biden’s electoral votes in swing states.

All of these arguments were all based on a sweeping and historically unsubstantiated interpretation of the U.S. Constitution that only state legislatures — not state courts, not election officials, not even state constitutions — are authorized to make rules for federal elections within state borders.

Within a few years, however, this interpretation of the Constitution, called the ‘independent legislature of the state’ theory, has moved from the fringes of political thought to the Supreme Court, which is due to hear a case about it next month. .

“It’s not a long-standing argument about founders’ intent,” said Erik Herron, a professor at West Virginia University who studies elections and electoral systems. “And many, in fact, argue that this is completely against the founders’ intent.”

Although West Virginia leaders have signaled they want the Supreme Court to approve the theory, many legal scholars have said it could pose a real threat to democracy. An electoral law expert said a ‘strong’ reading of the theory could “provide a fig leaf state legislators to try to reverse the results of the presidential election. A longtime conservative judge said the Supreme Court must dismiss the theory to prevent “Trump and the Republicans…stealing the 2024 election.” A professor who supports parts of the theory warned against a legislature that could use the theory “to simply ignore the results of a popular presidential election and name a voters list reflecting its own partisan preferences.”

What is the theory of the independent legislature of the state?

For a century, American courts and constitutional scholars have essentially agreed on how states can oversee federal elections. But now the United States Supreme Court is to hear a case from North Carolina, called Moore v. Harper, who would put this to the test.

Most constitutional scholars agree that when the framers of the Constitution said that elections should be governed by the “legislature” of each state, they meant the entire government of a state. Each state’s legislature is inherently bound by the state constitution, court decisions, and other checks and balances.

But legal experts say that if the theory of an independent state legislature is approved by the court, lawmakers could pass voter suppression laws, gerrymander electoral districts and engage in other undemocratic practices with almost no checks and balances. Congress would still have the power to govern how it makes the rules, but has always been reluctant to do so.

“The theory, if adopted, would remove checks and balances from a state legislature that limit conduct such as altering vote counting procedures in a way that would empower partisan officials, or achieving ‘sham election audits that could alter or manipulate the outcome of an election,’ said Eliza Sweren-Becker, a voting rights and election attorney at the Brennan Center for Justice, a nonpartisan organization at the University’s law school. New York University.

What West Virginia officials said

On December 8, 2020, the brief signed by Morrisey and other Republican attorneys general was delivered to the United States Supreme Court, supporting arguments to overturn the election by Texas Attorney General Ken Paxton. The brief echoed the theory of the legislature independent of the state: “It is no coincidence that the Constitution allocates [federal election] authority to state legislatures, rather than executive officers such as secretaries of state or judicial officers such as state supreme courts.

The following night, Warner spoke at the March for Trump rally in Charleston about votes cast “outside the legality of the Constitution.”

Asked for clarification, Warner spokesman Mike Queen said, “Secretary Warner is recognized as one of the leading defenders of states’ rights guaranteed by the US Constitution. The Elections Clause expressly grants the power to determine the times, places and manner of holding elections with state legislatures. »

Adav Noti, senior vice president and legal director of the nonpartisan Campaign Legal Center, was surprised to hear a secretary of state backing independent legislative theory because it could be used to undermine his own office’s ability to administer lawsuits. elections.

“That’s one of the ironies,” Noti said, “secretaries of state would have their hands really, really tied [under the independent state legislature theory]. This would be a huge administrative problem, because the electoral laws do not specify everything.

(Ironically, Morrisey and Warner’s arguments about the role of state legislatures in regulating elections run counter to their advice during the 2020 primary. During the COVID-19 state of emergency, Morrisey has said Warner could “issue broad and flexible rules without following ordinary procedural rules” in the primary, and Warner later said any voter could vote by mail.)

Like Morrisey did, Miller and Mooney also signed a brief in support of efforts by Trump allies to void the election by urging the US Supreme Court to endorse the theory of an independent legislature. Their brief, signed with 124 other Republican members of the U.S. House, asserted that state legislatures have “plenary authority” over election rules and that interpretations or challenges by state courts, election administrators or governors’ vetoes were not valid.

Both went on to contest each swing state’s electoral votes on January 6, 2021. Hours after a mob of Trump supporters stormed the US Capitol in hopes of blocking the certification of Trump’s election victory Biden, Mooney opposed certification of Pennsylvania and Nevada’s electoral votes. He said he voted against Pennsylvania voters because “State laws and legislature have been overthrown or ignored.”

Mooney too submitted a resolution in the House the day after Congress made Biden’s victory official, urging none of the candidates to declare victory and citing “rule changes outside of the normal legislative process.”

Miller voted against certification of the Pennsylvania and Arizona electoral votes after the Jan. 6 riot. She wrote earlier in the day that “secretaries of state, election commissions, judges and other state and local officials should not, in place of state legislatures, make last-minute changes. how their States fulfill their duty to provide, count and certify ballots.

Mooney, Miller, Morrisey, and Warner did not specifically comment on Moore against Harper or the independent state legislature theory, although Warner’s office provided the statement that the Constitution granted the power to regulate elections to the state legislatures.

Even proponents of the theory disagree how far it should go – for example, whether a secretary of state should be allowed to interpret existing law, as Warner did – and groups on all sides have filed briefs with the court explaining how the court should rule.

A brief filed in August by lawyers for North Carolina Republicans took an extreme position, saying that even if a state legislature delegated power in a regular election, it would be unconstitutional. This week, a bipartisan group of state Supreme Court chief justices submitted a brief arguing that the United States Supreme Court should reject the independent state legislature theory.

The country is “in a truly dangerous period of polarization, and allowing already polarized state legislatures unlimited powers to set election rules is going to deepen this spiral of polarization,” Noti said. “And it will dramatically increase the legal and democratic divide between American citizens, which is already causing enormous problems for our society and our democracy.”

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