US supreme court justices have strange views on whether Trump is disqualified | Moira Donegan
www.theguardian.com
The justices, wanting to restore Trump to the ballot, didn’t address the underlying question of if he incited an insurrection

The justices, wanting to restore Trump to the ballot, didn’t address the underlying question of if he incited an insurrection

Elena Kagan once referred to Jonathan Mitchell sarcastically as “some genius”. That was in oral arguments surrounding SB8, the bounty-hunter abortion ban that Texas succeeded in passing before the overturn of Roe v Wade, which Mitchell wrote, pioneering a cockamamie scheme for evading judicial review.

Mitchell, a far-right lawyer currently vying for a spot in the second Trump administration, is a fan of this kind of bald, legal bad faith: you can’t quite call him duplicitous, because he never quite pretends that the law really leads him to the conclusions he’d like to reach. He’s more about coming up with novel legal schemes to get to his desired outcome and trusting that the federal judiciary, captured as it is by Federalist Society acolytes and wingnut cranks, will go along with him because they share his political proclivities.

That’s what worked for him with SB8: the supreme court allowed Texas’s abortion ban to go into effect long before Dobbs: not because Mitchell made a convincing argument, but because he offered them an opportunity to do what they wanted to do anyway.

Something similar happened in Thursday’s oral arguments in Trump v Anderson, a question about whether Donald Trump is disqualified from holding federal office under section three of the 14th amendment.

  • @grueEnglish
    21•9 months ago

    No, that blatantly-corrupt wishful thinking bullshit isn’t what I’m talking about at all.

    For reference, here’s what your article says “independent state legislature theory” is:

    The dispute hinges on how to understand the word “legislature.” The long-running understanding is that it refers to each state’s general lawmaking processes, including all the normal procedures and limitations. So if a state constitution subjects legislation to being blocked by a governor’s veto or citizen referendum, election laws can be blocked via the same means. And state courts must ensure that laws for federal elections, like all laws, comply with their state constitutions.

    Proponents of the independent state legislature theory reject this traditional reading, insisting that these clauses give state legislatures exclusive and near-absolute power to regulate federal elections. The result? When it comes to federal elections, legislators would be free to violate the state constitution and state courts couldn’t stop them.

    What I’m saying is not that state legislatures could ignore the results of the state’s popular vote and send fraudulent electors or whatever (i.e. the second-paragraph case), but that a state could decide to repeal its popular vote in the legitimate way (i.e. the first-paragraph case) if it wanted.

    TL;DR: all I’m saying is that the way a state chooses Electors is a matter of its own state law, not Federal law. I’m not saying a state legislature doesn’t have to follow its own state laws!