Ted Cruz’s legal mentor: Here’s how the election might be stolen in 2024

It restores some of my faith in the right to see a legal heavyweight like J. Michael Luttig spend the past year sporadically pounding the table for reforms to prevent another “stop the steal” fiasco in 2024.

Especially since his most famous clerk was all-in on trying to block the certification of the vote on January 6.

Luttig once served on the Fourth Circuit and was a conservative judicial superstar, held in such high esteem that the best and brightest conservative law students competed to clerk for him after graduation. Working for Luttig would give you a leg up in competing for the most prestigious honor a young lawyer can have, clerking for the Supreme Court. That’s how it went for Ted Cruz, who went from Harvard Law to Luttig’s office to working for Chief Justice William Rehnquist in the mid-90s.

Luttig eventually left the bench to resume private practice but few conservative lawyers in the U.S. are more well regarded than he is. Which is why it’s welcome, and important, that he’s thrown his weight behind rewriting the Electoral Count Act to make sure that January 6 runs smoothly in the future, without any coup-minded shenanigans from the party that lost the election. In February he published an op-ed recommending reforms to the ECA, such as granting federal courts the power to resolve disputes when a state sends two slates of electors, raising the number of objections needed in each chamber of Congress to force a debate on a state’s electoral votes, and clarifying that the vice president has no power to reject any votes. He also took a few jabs at his former clerk, sometimes by name, sometimes not. (“[T]he only members in Congress who might not want to reform this menacing law are those planning its imminent exploitation to overturn the next presidential election.”)

Today he’s back with a new op-ed in which he’s worried about something else. It’s not just state legislatures appointing alternate slates of electors or a VP gone rogue that the country should be concerned about, he writes. It’s the likelihood that a lopsidedly conservative Supreme Court will uphold something called the “independent state legislature” doctrine, enabling Republican-controlled state legislatures loyal to Trump to wreak havoc with their states’ election results. The “independent state legislature” doctrine says that, under the Constitution, a state legislature has exclusive power to choose its state’s electors such that its actions are unreviewable by its own state’s courts. Whatever the legislature decides, that decision is final.

Which means if Biden were to win a state’s popular vote and the state’s GOP-controlled legislature were then to turn around and corruptly award its electors to Trump anyway, the state judiciary would be powerless to stop them.

Luttig is anxious:

Trump and Republicans are preparing to return to the Supreme Court, where this time they will likely win the independent state legislature doctrine, now that Amy Coney Barrett is on the Court and ready to vote. Barrett has not addressed the issue, but this turns on an originalist interpretation of the Constitution, and Barrett is firmly aligned on that method of constitutional interpretation with Thomas, Alito, and Gorsuch, all three of whom have written that they believe the doctrine is correct.

Only last month, in a case from North Carolina the Court declined to hear, Moore v. Harper, four Justices (Alito, Thomas, Gorsuch and Kavanaugh) said that the independent state legislature question is of exceptional importance to our national elections, the issue will continue to recur and the Court should decide the issue sooner rather than later before the next presidential election. This case involved congressional redistricting, but the independent state legislature doctrine is as applicable to redistricting as it is to presidential elections…

Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.

Is he right, though, that there’d be no judicial remedy for chicanery in which a state holds an election and then gives its electors to the loser? Election scholar Ned Foley doesn’t think so. Whatever the merits or flaws of the “independent state legislature” doctrine, says Foley, the U.S. Constitution would — or should — prevent a state from changing the manner in which its electors are awarded after an election has already been held. It’s true that a state legislature could constitutionally cancel its state’s presidential election and choose some other means of deciding how to award its electors. But once it decides to hold an election, it can’t toss out those results after the fact and reclaim the power of awarding electors for itself.

Although Foley concedes that Congress might want to tweak the Electoral Count Act to make that point clear:

In this regard, as part of revising the Electoral Count Act, it is important to clarify 3 USC 2 to make clear, at the very least, that a state has not “failed” to choose electors, thus authorizing a state legislature to determine a new manner of appointing the state’s electors, just because the state legislature disagrees with the outcome of the process that the legislature previously established for casting and counting ballots in the popular vote that the legislature itself decided was to be the state’s method of appointment for that year’s election.

Once a state commits itself to awarding its electors based on the results of a popular election, it’s stuck with the verdict of the voters. No take-backsies. Hopefully SCOTUS would agree. But limiting the ability of state courts to review the election shenanigans of state legislatures per the “independent state legislature” doctrine would mean everything would depend on the Court agreeing with Foley’s reading over Luttig’s. If the Court were to decide that state legislatures are so all-powerful in awarding electoral votes that they can even override their own state’s voters after an election is held, hoo boy. Farewell to America.

Say, how’s the project of reforming the Electoral Count Act going anyway? We haven’t heard much about that since January. As chance would have it, the bipartisan group of senators that’s meeting to rework the law met just yesterday and emerged from the meeting … discouraged. They’ve agreed on some important issues, said Susan Collins, but it sounds like some Democrats are trying to bootstrap other voting-rights reforms into it, which risks fracturing the group. “I don’t think we’ve made much progress over the last two weeks,” Shelley Moore Capito admitted. Mitt Romney added that “It’s just far more complex than it would seem at the outset” and that parliamentarians and many lawyers are involved in the drafting to make sure all of the component parts are in harmony.

And then he said this, surreally: “There’s not an urgency to get this done immediately, because it would really only begin to play in 2024.”

Mitt, my man, there isn’t a prayer that this bill will pass next year with Republicans in charge of the House once Trump starts screaming about it. The bipartisan group has until January 3, 2023 — no later — to pass this thing and get it to Biden’s desk or it’s not going to pass. Romney can’t be so naive as to think Kevin McCarthy’s Trump cult will agree to let Congress limit Trump’s options on overturning the next election. What is he thinking?

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