SCOTUS Rejects Independent State Legislature Theory

Donald Trump just can't win in court, can he? Yesterday, the Independent State Legislature (ISL) theory, the fringe right-wing legal sophistry that was the basis of his effort to retain the presidency in 2020 after losing the election, was rejected by the Supreme Court by a vote of 6-3, with Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Amy Coney Barrett joining with the three liberals to form a majority.

The actual case in question was Moore v. Harper, with Moore being Speaker of the North Carolina House Thomas Moore (R) and Harper being private citizen and activist Rebecca Harper, who volunteered to serve as plaintiff. The specific issue being litigated was whether or not the state legislature could impose any district maps it wanted, even when the state's courts stepped in and said those maps were in violation of the state constitution. In support of its case, the legislature asserted that Article I of the U.S. Constitution, which includes the phrase "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," gives legislatures unchecked power over the conduct of elections, and that no court has any right to get involved.

This legal theory is patently ridiculous on its face; one need only have a passing familiarity with the phrase "checks and balances" to know that the fellows who wrote the Constitution would never have invested absolute power in any particular branch of government (and especially not in any particular branch of state government). And every time someone has tried to run to the U.S. Supreme Court with a variant of independent legislature theory (perhaps most notably in Smiley v. Holm in 1932), SCOTUS has given the thumbs down.

Nonetheless, if at first you don't succeed, you try, try again. There was some verbiage in a concurring opinion to Bush v. Gore (2000) that seemed to point in the direction of ISL, and more such verbiage in a dissent to Arizona State Legislature v. Arizona Independent Redistricting Commission (2015). Since Clarence Thomas, Samuel Alito and Roberts all signed on to that 2015 dissent, the plaintiffs in Moore thought they might be home free once there was a six-conservative majority on the Supreme Court. Ostensibly, all they needed was any two of Barrett, Kavanaugh and Neil Gorsuch.

Meanwhile, as Moore was marinating, Donald Trump and his enablers were trying to cook up a scheme that would allow him to be president without actually, you know, getting the most electoral votes. So, his now-disgraced crony John Eastman, supported by a few others in Trump's orbit, turned to ISL. Their general notion was that if legislatures have unchecked power over elections, then the various states where Trump lost, but where there was a Republican-controlled legislature, could simply set aside the election results and appoint electors as they saw fit.

Needless to say, Trump & Co. got zero buy-in from any of the accomplices they would have needed in order to pull off their scheme. None of the courts was willing to accept the Trumpy claims of election fraud. None of the GOP-controlled legislatures was willing to adopt new slates of electors by fiat. VP Mike Pence was unwilling to "set aside" one or more sets of electors on Jan. 6, 2021. And now, the underlying legal theory for all of this chicanery has been shot to pieces. Eastman, who is busily preparing for his disbarment, said yesterday that his ISL case for electing Trump in 2024 is now "murkier." That's the understatement of the year.

Undoubtedly, one of these days, someone will once again revive ISL. So many of these kooky legal theories are like Jason Voorhees or Freddy Krueger—they may appear to be dead, but one day, they'll be back. And in their various dissents, the three conservatives in the minority were quite clearly trying to lay the groundwork for that day, asserting that Moore v. Harper should never have come before SCOTUS, as the composition of the North Carolina state Supreme Court has changed, which means that the underlying dispute is moot. In other words, they take the view that the ruling in Moore isn't actually valid. Still, the day when someone tries to push ISL again is well in the future, as it's clear that—despite the chess-playing by the North Carolina legislature—Roberts is not a supporter, nor are two-thirds of the conservative justices who were not on the court in 2015.

And now the bad news. Maybe. Writing for Slate, as well as his own blog, election law expert Rick Hasen argues that the three conservatives in the majority snuck a "time bomb" into the Moore decision, namely that there is some verbiage in there asserting that while the legislatures don't have final say over elections, federal courts do. Hasen warns that could be a backdoor opening to allow the Court to impose itself on a future election, as it did back in 2000.

We pass Hasen's analysis along because he's an expert and it's worthwhile to know what he's thinking after a major case like this. That said, it is not exactly a "new" development that the Supreme Court thinks it has final say over election-related questions. After all, SCOTUS did determine the outcome of the 2000 election, and it did serve as the final arbiter in several of Donald Trump's election cases. Vikram David Amar, the dean of the University of Illinois College of Law, was among those who pointed this out yesterday. He remarked: "I see no evidence of interest by the Supreme Court to make mischief here."

As we noted yesterday, the Court still has a number of big decisions to announce in the next week or so, and conservatives are certainly going to get some news that will warm their hearts. In fact, Wednesday is one of the days customarily set aside for SCOTUS decisions to be announced (along with Tuesdays), so by the time you read this, it may well be the case that Christian web designers are legally allowed to reject gay clients, or that universities can't use affirmative action.

Meanwhile, for Donald Trump and his campaign staff, it's back to the drawing board when it comes to putting him back in the White House. Assuming he is the Republican nominee, they may strongly have to consider a strategy that involves actually earning more electoral votes than the Democratic candidate. Radical stuff, we know, but desperate times call for desperate measures. (Z)

Blue States Are Capable of Antidemocratic Lunacy, Too

Normally, we try to order the items roughly in order of significance. But we also try to put things together that logically belong together. And when those things are in conflict, well, we use our judgment. So, this story isn't important, at least not yet. But it is definitely a clear companion to the item above. Thanks to reader J.S. in The Hague, Netherlands, for suggesting the subject.

As we have noted a couple of times recently, Delaware is deliberately designed to be a haven for corporations. Long ago—and by that, we mean over 100 years ago—the state's leadership decided that it would use tax breaks and other incentives in order to persuade business interests to incorporate in the Blue Hen State. Today, there are close to 2 million legal entities incorporated there.

Some towns in Delaware do not feel they are getting enough of that sweet, sweet corporate love, it would seem. And so, the town of Seaford, having observed that corporations are, legally speaking, people, is taking steps to allow corporations to vote in local elections. The good people of Seaford aren't even the first to reach that conclusion; the towns of Fenwick Island, Henlopen Acres and Dagsboro have already extended voting rights to corporations. Because if there's one thing everyone can agree on, it's that business interests don't have enough influence in American society.

Because nearly all corporations in Delaware are run by people from outside the state, the general notion is that these people are affected by local decisions, too, and deserve a voice in those decisions. Conveniently, since most Delaware municipalities do not take this view, this "thoughtful" assessment means there's extra motivation for corporations to take their business to Seaford, Fenwick Island, Henlopen Acres and Dagsboro. Essentially handing out voting privileges in exchange for financial benefits? How democratic!

There is the small problem of people voting more than once. Most of these localities have set it up so that if you live in, say, Dagsboro and your business is chartered in Dagsboro, you don't get to vote once as a person and once as a corporation. Rather harder to stop are out-of-state individuals who have chartered multiple corporations in the same locality. In one case, for example, the same person voted 31 times in the same election.

Under the terms of the state constitution, these voting rules have to be approved by the state legislature. Progressive groups are pushing legislators not only to reject the Seaford proposal, but also to amend the constitution to specify that only real humans (not legal-fiction humans) can vote in elections. Whatever happens, it's a reminder that red states don't have a monopoly on kookiness meant to give more power to those who already have more than their fair share. (Z)

Trump Just Can't Decide What His Story Is

This week's most popular parlor game is guessing who leaked the recording of Donald Trump, in which he talks about having classified information about Iran, to CNN. Fox's Steve Doocy, for his part, thinks the leak came from Trump himself. Doocy's theory is that since Trump thinks the tape exonerates him, he wants everyone to hear it.

There is one small problem with that theory, though. Yes, on Monday, Trump was claiming that the tape exonerated him, and that it was proof that he did nothing wrong. On Tuesday, however, he was singing a different tune. The former president's new story is that he was lying on the recording: "I would say it was bravado, if you want to know the truth, it was bravado. I was talking and just holding up papers and talking about them, but I had no documents. I didn't have any documents."

This is a very interesting change in course for Trump. His previous "defenses" have all been nonsensical bluster that have nothing to do with the law as it is actually written. This, by contrast, is really the first time he's presented a version of events that, if true, would unquestionably exonerate him of wrongdoing. This hints, in some small way, that he's starting to get scared, and he's trying to dig himself out of the Marianas-sized hole he's dug for himself.

Of course, the government can prove that Trump actually did have documents he wasn't supposed to have, so his claiming it was just bravado doesn't change anything. His latest story also suggests he doesn't really understand the significance of the recording. The reason it's meaningful is not that it proves he had classified documents (that fact is easily proven in other ways), it's that it proves he knew he wasn't supposed to have classified documents. Persuading a jury that Trump knew he was in the wrong is important to the case the government is going to make, and Trump gave the feds that element of their case on a silver platter.

One other thing that reader A.R. in Los Angeles reminds us that we really should have emphasized yesterday: The taped conversation took place at Bedminster, not at Mar-a-Lago. That means there were classified documents at Bedminster. Thus far, there is no publicly known evidence that Bedminster has been searched by the government. And there is certainly no indictment related to activities at Bedminster—yet. But the odds are pretty good that the latter, and maybe the former, are coming down the pike. Maybe that is why Trump is spinning a different version of events right now; he's trying to limit his criminal troubles to Florida. Well, and New York. And probably Georgia. (Z)

I, The Jury, Part V: Courtroom Behavior

Time for another group of reader accounts of jury service. The theme today is that jurors pay close attention to behavioral cues, big and small.

S.C-M. in Scottsale, AZ, writes: I served on a jury in a civil liability case years ago. The case involved a child that was scalded at a daycare center because the water heater temperature was set too high. The child got scalded and the parents sued the daycare center for damages.

I ended up as the foreperson of the jury. The most interesting part was almost all the facts of the case were undisputed. The child was scalded, the water heater temperature was set too high. There were some medical costs involved. What kind of sealed the deal for the jury was that the parents, after picking up their injured son, dropped him off at his grandparents and spent a weekend at a resort.

The jury was ready to vote for no damages to the parents. However, I ended up convincing them the daycare center was negligent, but not grossly negligent. We finally decided that the center would pay the medical bills for the child and some small amount of punitive damages. I recall the whole amount was about $10K.

In a small way, because of the actions of the parents after the injury, the jury was ready to basically ignore the judge's directions on what negligence and gross negligence were in the law.

After the verdict, the judge told us the parents left over $100,000 on the table. That was the amount the insurance company of the daycare center was willing to pay to settle. The parents refused the settlement and were asking for over $600,000 in damages.

My takeaway was seemingly small events like the parents leaving their child for the weekend, which legally bore no relationship to any legal claim of negligence, can impact a jury in significant ways.

This could happen in Trump's trial, particularly if he insists on being a witness and he says or does something outrageous that irritates the jury.

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T.S. in Mansfield, OH, writes: Veteran of two civil trial juries in Ohio. The conduct of the defendant or plaintiff during the trial, especially if called to testify, is important. Evasiveness or incomplete answers tend to reflect negatively in this juror's mind. Similarly, the conduct of the legal team. In one case, the plaintiff's legal team did not take the time to explore their client's medical expenses. They just handed over to the jury a stack of billing documents as Exhibit X. (If the plaintiff's attorneys can't be bothered to go through at least some of them, why would they expect the jury to?) In another trial, the plaintiff's attorney attempted to impeach the credibility of the defense's expert witness. On redirect it was revealed that the expert witness had testified in other cases on plaintiff's attorney's behalf. (Oops! Your credibility just went into self-destruct mode).

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D.R. in Charlotte, NC, writes: I was a juror in a sexual assault trial 20 years ago. It was somewhat similar to the recent Trump vs E. Jean Carroll trial, as the purported assault was years in the past and it was he-said-she-said. My jury found the defendant not guilty because there was no physical evidence, though to this day I do not know if it was the correct verdict.

The most important lesson is the members of the jury are the most important people in the courtroom, followed by the judge. Not the defendant or the lawyers. Donald Trump, in the E. Jean Carroll trial, was oblivious to this concept. He was flying off to Scotland and doing Trumpy things to be the center of attention. This appeared to annoy the judge and jurors can pick up on that.

Starting with the indictment in Florida, the most important people in Trump's life will be twelve future jurors. I doubt he will ever understand that and I see him losing every jury trial that comes his way.

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J.T. in Greensboro, NC, writes: I served on a criminal jury a few years ago and the experience was eye-opening, though what it tells me about the Trump case is trickier.

If I recall correctly, the jury consisted of 9 people including myself. The case involved resisting arrest, assault of a police officer, and something related to "attempting to induce another party to interfere with an arrest in progress." The first charge was a gross misdemeanor while the other two were felonies.

Trying to keep the case as simple as possible: A police officer went to a middle-aged white woman's suburban home in an affluent suburb on a "civil assist" to resolve a dispute between her and a contractor. According to the charge, while in the home she hit the police officer and attempted to get her 18-year-old son to attack the police officer. The conflict moved outside the house, where the neighbors watched her resist while the officer handcuffed her and put her in the squad car.

Understand that I'm pretty pro-defendant as a default position, and I'm skeptical of the state as a default position. Even (especially?) as a pretty left-wing person, I think a default skepticism of the exercise of state power is very healthy. I also used to work at a law firm that actually opposed the lawyer hired by the city on multiple misdemeanor cases. I said all this in selection (though I also mentioned I had a cousin who was a cop). I was positively shocked to be selected for this case.

At trial, to my mind, the defendant's lawyer did her no favors. He put her in cartoonishly giant sunglasses to emphasize an alleged concussion she received from the officer. She was in a comically large cast (though provided no medical evidence that she suffered any harm by the cop) and it was really kind of a bad comedy designed to engender sympathy from the jury and it completely backfired. The jury, myself included, found her and her lawyer insufferable.

However, what was more important to me is that the city provided absolutely zero evidence, other than the officer's word, that she either struck the officer at any time, or that she attempted to get her son to help her. No body-cam, no recording, no independent witnesses, no medical evidence, nothing.

When we entered deliberations the foreman was revealed to be the "alternate" and was removed from the pool, and I—being the alternate foreman—became the foreman. I first asked people to write down their verdicts anonymously on the charge of resisting, the one the city actually proved well. People put their verdicts in a hat and I read them. We returned a unanimous guilty verdict on resisting.

Where things became more complicated were on the other two charges. The other two charges came back something like 7-2 or 6-3 "guilty" even though the city, beyond the officer's word, had not provided a scintilla of evidence that she'd ever struck the officer or tried to involve her son, much less proved it beyond a reasonable doubt.

The reasons my fellow jurors gave were along the lines of "I just didn't like her" and "she seemed crazy to me" and "she seems like she loves drama" etc., etc. I basically played "12 Angry Men" and spent the afternoon convincing 6 or 7 of my peers that you can't just send a woman to a rather substantial jail sentence because you find her "unlikeable" and think she "seemed crazy." After a lunch of fried chicken from a local grocery store, I managed to convince them and we the jury found her not guilty of the two felony offenses and guilty of the misdemeanor offense that the city actually proved.

I don't like to make sweeping generalizations but for me, the experience told me that I absolutely never want a jury trial, because juries, it turns out, don't care much about evidence, and seem to care much more about theatrics and their trust in state authorities and institutions. Ultimately a woman stayed out of jail because a recalcitrantly evidence-focused person happened to be on the jury that day.

It's hard for me to say what the experience tells us about Trump, but I'm somewhat inclined to think it bodes poorly for him because he seems like a terribly unlikeable person who is prone to precisely the type of vaudeville antics the defendant resorted to in the case I was a juror on. I think the jurors felt on some level insulted by just how goofy the defense presentation was and this inclined the jurors to convict the defendant even though the city's case was incredibly weak. This is perhaps supported by the verdict in the E. Jean Carroll case, where the standard of evidence was different since it was a civil case and even a two-time Trump voter was able to believe based mostly on the complainant's word that he assaulted her.

On the other hand, my experience as a criminal juror also tells me that jurors—like many Americans—don't care much about the presence or absence of evidence and so all the photos and recordings and smoking guns the Feds have come up with probably won't matter a hill of beans. Consider, for example, the case of Rodney King, where an extensive and detailed video that the public found incredibly damning failed to satisfy the jury that the police had acted improperly.

My personal experience on a jury tells me that juries tend to care more about their gut feelings stirred up with their own preconceived notions than they do about evidence.

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A.H. in Newberg, OR, writes: A long time ago in a galaxy far, far away... Oops, wrong story. Back to reality!

A decade back in a previous life, I had the privilege to serve on a jury and was actually elected foreman by the other members.

It was the local county circuit court. It was scheduled for the morning, starting at +/- 9am. I think there were probably 30 or 40 potential jurors. Juror questioning took about an hour to get down to the final 12. It was a relatively simple set of allegations: trespassing, possession of an unregistered firearm, and driving under the influence.

The person's whole problem was that he was: (1) a veteran, (2) homeless [camping on some farmer's woodlot], (3) overindulgent in mind-altering chemicals, and (4) a "sovereign citizen."

I have heard some strange arguments from the cult of true believers of the Mar-A-Loco malefactor, but none that would hold a candle to some of the s**t that this person spouted. After the prosecutor laid out their case, and the defendant did his dog and pony show (something about whether or not there was fringe on the U.S. flag and that the government was actually being run by a cabal of European bankers), we retired to the jury room. The biggest holdup in deliberation was the line for the sole restroom, and the question of whether we should delay and get a free lunch delivered. We decided to skip the lunch. We were out by 11:30 and another one bites the dust.

Another group on Friday! (Z)

Why the Democrats Need Joe Biden

David Byler, of The Washington Post, has an analysis of polling numbers, and he makes an argument about Joe Biden that is worth noting: At the moment, the President is an essential link between the Democratic Party of yesterday and the Democratic Party of tomorrow.

Biden, as you may have heard, is somewhat elderly. He's also a moderate, an "ethnic white" (i.e., Irish Catholic), and a fellow who's been around for a long time without making too many waves. And so, he attracts a lot of votes from non-college white voters. For all the talk of non-college whites heading to the redder pastures of the Trumpublican Party, fully one-third of the votes that elected the President in 2020 were from non-college white people. Yes, some of those were young people who haven't finished their degrees, but the majority were Old School, Clinton-style moderate Democrats in their fifties, sixties and seventies.

There's another, related dynamic that Byler also addresses in his piece. The three largest and most significant constituencies for the Democrats right now are college-educated whites (a group that includes most of the progressive voters, but also a lot of suburbanites), non-college whites, and Black people. To a large extent, the non-college whites' views on the issues place them right in between the college-graduate whites (most liberal, as a cohort) and the Black voters (least liberal, as a cohort).

The upshot is that as Biden works hard to maintain his Joe Scranton image, and to steer a moderate, middle course, he is holding on to a constituency the Democrats badly need (i.e., noncollege whites), especially in the states of the upper Midwest and in the coastal South. At the same time, he is also striking a balance between the various factions of the party, and trying not to lean too far in any particular direction.

The result of the Biden approach, as we have seen, is that he does not excite a whole lot of people. Hence the anemic approval ratings and the desire by a sizable percentage of the Democratic base for some other—any other—candidate. But the flip side is that he also does not turn the stomach of too many potential Democratic voters. Compare that to Donald Trump, for whom nearly all voters are fanatically "in" or definitively "out." In such a circumstance, a Democrat who is "tolerable" is in a position to claim most of the anti-Trump vote. As we have written many times, an unenthusiastic vote counts just as much as one from someone who is fanatical about their candidate.

The time will presumably come when the current realignment of parties has advanced enough that noncollege whites are not essential to Democrats' chances on the national level. But that time isn't here yet, and the blue team does not seem to have another candidate who can keep all three of the key demos listed above on board. On some level, Biden is like the Sen. Joe Manchin (D-WV) of national politics—an artifact of a past era who is now sui generis. This may just be why potential challengers to Biden, like Gov. Gavin Newsom (D-CA), took a pass on 2024—they see the same polls that Byler does. (Z)

Sheehy Throws His (Cowboy?) Hat Into the Ring in Montana

If the Republicans are to retake the Senate, they will almost certainly need to flip the seats in West Virginia and Montana. Joe Manchin looks to be in trouble in the former, but it's going to take a pretty good candidate to knock off Sen. Jon Tester (D-MT) in the latter. After all, Tester has won statewide three times, and so he knows a few things about succeeding as a member of the minority party.

Yesterday, the GOP got the excellent candidate they need in Tim Sheehy who, as expected, declared his intent to run for the seat. Sheehy is young (37), charismatic, and a former Navy SEAL. He is also an entrepreneur who founded a company that specializes in aerial firefighting. In a state known for its interest in vigorous masculinity, the candidate certainly fits the bill.

This is not to say that Sheehy has no weaknesses. He has zero political experience, first of all. That's not disqualifying these days, of course, particularly in the current iteration of the Republican Party. However, untested candidates are also the ones that tend to say stupid, impolitic things (see Walker, Herschel; Oz, Mehmet; Bolduc, Don). Another problem is that Sheehy has only been a resident of Montana since 2014. That's not so much of a problem in some states, but in Big Sky country, voters tend to look askance at anyone whose family hasn't been present since, oh, World War II.

Sheehy's biggest challenge, however, is that he's got to face off against Rep. Matt Rosendale (R-MT) in the primary. Rosendale is a fire-breathing Trumper who has already lost a Senate race to Tester (in 2018). The presence of a far-right opponent could force Sheehy to tack rightward, leaving him less electable in the general, assuming he makes it that far. Having a competitive primary can also drain one's campaign coffers but, in this case, who are we kidding? It's Montana. You can buy all the TV advertising in the state for the next 6 months for roughly the same cost as a used Toyota.

The Tester campaign knows full well that Sheehy is much more dangerous to them than Rosendale is, and has already begun campaigning against the newly declared candidate. In particular, focusing on the carpetbagger angle, a member of Tester's campaign told reporters that the Senator has farm equipment that's been in Montana longer than Sheehy has. If it comes to it, Team Tester will use that same angle against Rosendale, who has himself only been in Montana since 2002, and retains the pronounced Maryland accent he picked up in his youth. However, it is clear that Sheehy is the only potential opponent who calls for Democratic counter-campaigning RIGHT NOW. (Z)

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