Author: Henry Wray

The indictment is solid legally and factually. Criticisms of it based on its substance and other considerations are unpersuasive. Disregarding this case would be far more problematic than pursuing it.

Donald Trump now faces three criminal indictments and counting. ^[1]A Georgia grand jury may issue a fourth indictment for election interference, and the current indictments could be expanded. The first indictment, by the Manhattan District Attorney regarding hush money payments to Stormy Daniels, is by far the weakest. It was widely panned as politically motivated and legally dubious. If this case goes to trial and Trump is convicted, the conviction would likely be overturned on appeal.

The second indictment, by Justice Department Special Counsel Jack Smith relating to improper possession and handling of classified documents at Mar-a-Lago and obstruction of federal efforts to recover them, is the strongest. There is a broad consensus among legal experts across the political spectrum that prosecutors have Trump dead to rights in this case. His best hope may be a hung jury, given the relatively Trump-friendly jury pool in the Florida district where the case will be tried.

The third and most recent indictment, also brought by Special Counsel Smith, presents the most serious and complex case. It goes to the heart of Trump’s efforts to overturn the 2020 presidential election result based on his pervasive, patently false “stolen election” claims. This case has also produced the most diverse reactions. Media and expert opinion on the left is generally supportive; much opinion on the right, although not all, is highly critical.

The Facts

The 45-page indictment was released on August 1.^[2]The Lawfare website has an excellent overview of the indictment as well as detailed explanations of the facts and statutes it cites. The facts it alleges are familiar: Invoking knowingly false claims of election irregularities, Trump and his co-conspirators pressured state election officials to alter their vote counts, “find” votes for him, dismiss legitimate electors, and substitute fake pro-Trump electors. They organized the fake electors and had them submit false certificates in connection with the January 6 congressional election certification proceeding. They relentlessly pressured Vice President Pence to exceed his constitutional role and assume control over the election certification by rejecting legitimate electors in favor of Trump’s fake ones or at least delaying the certification. (¶ 10 of the indictment)

According to critics, it will be hard to disprove that Trump sincerely believed the election was “stolen” from him. They point out that the indictment contains no “smoking gun” evidence from Trump’s own mouth that he knew he lost.^[3]Its absence from the indictment does not necessarily mean that such evidence does not exist. In fact, there are indications that Trump acknowledged his loss to some staffers, including White House … Continue reading However, this is a red herring argument; the case doesn’t turn on whether Trump somehow actually believed the election was stolen.^[4]Of course, it’s highly implausible that Trump did (does) believe this given the total lack of supporting evidence, the mountain of contradictory evidence, and the fact that he has shown himself … Continue reading Rather, the key factual issue is whether the many false claims of specific election irregularities by Trump and his co-conspirators in support of their actions to overturn the election were knowing lies.

The indictment presents copious evidence that they were. Trump and the others asserted detailed factual claims they had no basis to believe were true and that they had been repeatedly and authoritatively told were false. (See generally ¶¶ 13-52) Moreover, the indictment cites instances in which Trump unquestionably knew he was lying. For example:

• • He asserted that Georgia election officials did not address a series of his false claims just one day after the officials refuted those claims in detail in a phone conversation with him. (¶ 32)
  • He told Pence that the Justice Department was finding major infractions regarding the election after they told him they were not. (¶ 90.b)
  • He approved a statement that he and Pence “are in total agreement that the Vice President has the power to act” despite Pence’s repeated denials to Trump that he had such authority. (¶ 99)
  • He asserted that some states wanted to re-certify their elector submissions when he knew they had no such intention. (¶ 104)

Finally, the indictment presents evidence that Trump knew he was engaged in a scheme of lies. After Justice Department officials refuted  his claims and declined to challenge the election, Trump responded: “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.” (¶ 74) After Pence refused Trump’s demand that he assert broad authority over the election certification, Trump responded: “You’re too honest.” (¶ 90.c)

The Law

The indictment is noteworthy for the crimes it charges as well as those it omits. The included charges focus on the efforts of Trump and his co-conspirators to overturn the election and prevent its certification through various fraudulent schemes. It does not contain charges relating directly to the attack on the U.S. Capitol, such as insurrection and seditious conspiracy, as the House January 6 Committee had recommended.^[5]See pp. 109-112 of the Committee’s Final Report. This reflects a measured approach that best matches the charges with the evidence. For the most part, the charges set forth in the indictment are straightforward in relation to the facts alleged.

The first count of the indictment charges a violation of 18 U.S.C. 371, which makes it a crime to “conspire . . . to defraud the United States, or any agency thereof in any manner or for any purpose.” As summarized above, the indictment alleges extensive fraudulent efforts by Trump et al. to undercut the legitimate outcome of the presidential election and defeat or delay congressional certification of it.

Some critics of the indictment contend that 18 U.S.C. 371 does not apply because fraud under federal criminal law is limited to schemes to swindle victims out of money or property. As discussed in the Justice Department’s prosecutorial manual, however, the courts have applied section 371 broadly, consistent with its sweeping language, and have held specifically that it is not limited to fraud aimed at money or property. Those arguing for a narrower reading rely on cases dealing with a different fraud statute (18 U.S.C. 1343) that, unlike section 371, does explicitly reference fraud to obtain money or property.

The second and third counts of the indictment charge violations of 18 U.S.C. 1512(c)(2) and 1512(k). Subsection 1512(c) provides:

“(c) Whoever corruptly—

     “(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

     “(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.”

Subsection 1512(k) criminalizes conspiracies to violate subsection (c).

Section 1512(c)(2) has been successfully invoked to convict many of the rioters in the January 6 attack on the Capitol, and its use for that purpose has been affirmed by the U.S. Court of Appeals for the D.C. Circuit. This statue does not require acts of violence and seems clearly applicable to Trump and his co-conspirators as well.

One potential complication is that a January 6 rioter is seeking Supreme Court review of his conviction on the basis that section 1512(c)(2) only applies to evidence-tampering in connection with an official proceeding. He contends that that the word “otherwise” in paragraph (c)(2) means that a violation of that paragraph is limited to conduct within the general scope of paragraph (c)(1). If the Supreme Court were to adopt this more restrictive interpretation, it would jeopardize the convictions of many January 6 rioters. However, Trump could still be covered since his conduct involved tampering with documentation and other evidence relating to congressional certification of the election. In any event, the section 1512(c)(2) charge against Trump, like the 18 U.S.C. 371 charge, is clearly consistent with the law as it stands now.

The fourth and final count is a violation 18 U.S.C. 241, which prohibits conspiracies to injure, oppress, threaten, or intimidate anyone in the exercise of a right or privilege under the Constitution or laws of the United States. This count may be a stretch since section 241 typically applies to voter intimidation rather than actions relating to ballots already cast. On the other hand, the courts have applied section 241 more broadly.^[6]See the Lawfare statutory summary cited in footnote 2 for more on this.

Other Considerations

Critics have raised objections that go beyond the specifics of the indictment, but they are tenuous at best.

Some argue that the prosecution violates Trump’s free speech rights under the First Amendment. However, Trump is not being prosecuted for insisting, no matter how implausibly, that the election was stolen from him or for the many lawful, if frivolous, judicial actions he pursued to contest the election. Rather, the prosecution is based on the alleged fraudulent schemes he and his co-conspirators instigated to overturn the election through extralegal means featuring extensive, knowingly false claims.

Critics also assert that the prosecution is politically motivated and an example of uneven justice compared, in particular, to the lenient treatment of Hunter Biden. They also make much of the timing of the indictment in relation to the 2024 presidential election. Of course, it would have been much better if this case (and the others involving Trump) could have been resolved prior to the election campaign. However, to the extent that the time taken involved anything more than the complexities of the case, it seems attributable to an abundance of caution on the part of Justice Department leaders in going after Trump.

In any event and most significantly, there is no hint of political motivation or bad faith on Special Counsel Smith’s part. As detailed above, his indictment is measured and well supported by the facts and statutes cited. The same is true of his indictment in the classified documents case, which even many of the critics here supported. The attacks on the good faith of this prosecution call to mind liberal assaults on the legitimacy of the Supreme Court, which conservatives rightly decry. Both illustrate the degradation of our public discourse in which partisans on each side are quick to attack the integrity of government officials and institutions when they disagree with their decisions.

Finally, some critics maintain that the prosecution of a former president for conduct while in office, particularly one running again, is a grave and potentially divisive undertaking that should be attempted, if at all, only when the case is airtight. One critic prone to hyperbole went so far as to compare the indictment to the action of a “banana republic.”

It’s certainly true that prosecuting a former president is a very serious matter, but so is the conduct Trump is accused of. His reprehensible actions following the election clearly violated his constitutional responsibilities and demonstrated utter contempt for the most basic democratic norms. If anything equates to “banana republic” conduct, his surely did. Even critics of the indictment (other than MAGA zealots and craven Republican politicians) acknowledge the outrageousness of Trump’s post-election conduct.^[7]See, e.g., here and here.

It’s by now clear as day that Trump committed impeachable acts  warranting his removal from office and disqualification from future office. However, the timing did not permit full development of the impeachment case against him, and the House overreached by charging him with “incitement of insurrection.” Also, it was questionable whether Trump could be convicted after leaving office.

The case laid out against Trump in the indictment is not a slam-dunk; no case this complex could be. However, it is well grounded in the facts and the law. Declining to pursue it and failing once again to hold Trump accountable would be far more divisive and harmful for the Nation than allowing it to play out.

As America gears up for the 2024 presidential election, the political landscape is bleak:

• • Public support for both Democrats and Republicans in our two-party duopoly has declined steadily over the past two decades. Almost twice as many Americans (49%) identify as independents than with either major party (25% each).

• • The leading candidates for each party’s presidential nomination are extremely unpopular; the public dreads a Biden-Trump rematch in 2024. Most prominent leaders in both parties also have negative favorability ratings.

• • Neither party has a policy agenda that aligns with majority public opinion. The Republican Party has degenerated into little more than the cult of Trump with no discernible agenda other than subservience to him. The Democratic Party’s agenda, increasingly set by its far left, embraces the divisive politics of identity, victimization, and tribalism. This turns off most voters, including many of its own party members.

• •  Civility has virtually disappeared from our civil discourse. The activists who dominate both parties drive our politics toward polarization and away from collaborative engagement to solve problems. While differing in their objectives, activists on both sides use similar methods. They suppress dissent and even good faith debate, seek to delegitimize individuals and institutions that don’t toe their line, and rarely let facts or reason get in the way of their ideologies and orthodoxies.

• • Congress, mired in gridlock and dysfunction, struggles to perform its most basic tasks and abdicates much of its constitutional authority to the executive branch and the courts.

• • One of the few things that unites the parties is fiscal irresponsibility. Both turn a blind eye to the huge fiscal challenges that pose an existential threat to future generations. They occasionally join forces to exacerbate them.

• • Unsurprisingly given the above, the vast majority of the public thinks the country is headed in the wrong direction. Americans have little confidence in the Nation’s governmental institutions or most other institutions, such as the media.

• • Our politicians and their media cheerleaders are seriously out of touch with a majority of the citizenry. Most Americans are not ideologically rigid; they are pragmatic and generally hold centrist or moderate political views. There is broad public agreement on numerous policy issues that stymie our ruling classes. Ordinary citizens much prefer constructive engagement and compromise over today’s polarization and extremism.

• A group called No Labels is gearing up to enter this fraught arena, laying the foundation for a third-party campaign in 2024. They are considering running a bipartisan “unity ticket” of candidates for president and vice president (one Republican and one Democrat), and they have published a centrist “common sense” policy agenda. A recent poll shows about 20 percent support for a No Labels ticket even before its candidates are named.

One might think the potential of formidable competition like this would prompt the duopolists to take a hard look at their 2024 offerings. However, the two major parties show no sign of humility or introspection. A headline from a New York Times op-ed succinctly captures their message to the voters: “Repulsed by Biden vs. Trump? Tough.”

The conventional wisdom, apparently shared by both parties, is that Democrats have more to lose from a No Labels candidacy. Therefore, while the Republican response has been somewhat muted, panicked Democrats are in full attack mode. They even sued in one swing state to keep No Labels off the ballot. In typical fashion, their media allies strain to discredit No Labels as a dark money,  closet Trump-supporting, Republican front group. This is nonsense. No Labels has promoted bipartisanship throughout its existence of well over a decade. Its leadership includes many prominent individuals—Democrats, Republicans, and independents—with long and distinguished records of public service and a clear commitment to good government.

Attacks disparaging the No Labels policy agenda as vague and anodyne (e.g., here and here) also miss the mark. Unlike the major parties, No Labels does not stake out one-sided positions that it claims are unquestionably the only “right” answers to complex problems. Rather, its common sense platform advocates core criteria that provide a framework for debate and compromise to arrive at specific solutions that can achieve broad, bipartisan support.

The critics do raise one legitimate concern. While No Labels may be the best choice for many voters, it’s very hard to see a realistic path to electoral college victory for it given today’s entrenched, fractured politics. At this point, it seems more likely to play a spoiler role and, if the conventional wisdom is correct,^[1]Of course, the conventional could be wrong. perhaps tip the election to Trump. Unappealing as a second Biden term may be, returning Trump to the White House would be far worse.

However, this is no reason for No Labels to stand down now. There are months to go before the presidential race fully takes shape and a lot can happen in the interim. Moreover, the No Labels leadership is quite clear that they have no interest in being a spoiler. They will drop out if they see no reasonable chance to win the presidency as circumstances unfold. They will also pull out if one or the other major party nominates a candidate more acceptable to the public than Biden and Trump.

Indeed, there is every reason for No Labels to stay in the race over the coming months in order to keep pressure on the major parties to shift back toward the mainstream. Clearly, this is No Labels’ overriding goal. Whether it can achieve it remains to be seen but the effort is surely worthwhile. If either major party does nominate a less flawed candidate and adopts a policy agenda more in tune with American public sentiment, it will be a real victory for No Labels and for the American people. It will also greatly improve that party’s chance of winning the presidency in 2024.

The Supreme Court has come under withering attack from the left as it produces decisions not to their liking. Rather than just critiquing these decisions on the merits, many of the Court’s detractors insist that the Court itself is somehow “illegitimate.” One common line of attack is that the Court is a radical, even imperial body that has gone rogue and is wholly disconnected from the American people. In this telling, the Court has lost public confidence because its decisions are fundamentally at odds with  public sentiment.

Like other assaults on the Court’s legitimacy,^[1]See, e.g., here, here, here, and here. this is a false narrative. In recent years, researchers compared public opinion on issues presented in selected high-profile cases before the Court with how the Court ultimately decided those issues. The results are telling. Unsurprisingly, there are some cases in which the Court’s decisions do run counter to majority public opinion. Also unsurprisingly, there is a major disconnect between many of the Court’s decisions and the views of leftist politicians and media. For the most part, however, the Court’s decisions are well within the mainstream of American public opinion. In fact, the Court is more in tune with the public than are its critics.

This year, the researchers surveyed public opinion on 13 prominent cases before the Court. The issues included race preferences in college admissions, environmental regulation, freedom of speech and religion, student loan forgiveness, and voting. As in past years, survey respondents were categorized as Democrats, Republicans, and Independents. Polling on each issue was compiled for overall majority opinion and for each of the respondent subgroups. The Court’s disposition of two cases did not match the survey questions, thereby leaving 11 cases for comparison.^[2]The Court did not reach the merits in one of these cases; in the other, the Court focused on an issue different from the one that was polled.

The results:

• • The Court’s decisions aligned with majority public opinion in 8 of 10 cases; public opinion was evenly split in the other case.
  • The Court’s decision in one of the two cases that ran counter to public opinion was unanimous. This suggests that the law was fairly clear and simply incompatible with the public’s preference.^[3]The Court held in this case that internet platforms could not be sued for failing to remove content supporting the Islamic State.
  • The only other decision that went against majority opinion dealt with EPA’s regulatory jurisdiction over wetlands.
  • Regarding the polling subgroups, the Court’s decisions aligned with a majority of Independent respondents in 9 of the 11 cases and with a majority of Republicans in 6 of 10 (with one even split). A majority of Democrats supported the Court’s decision in 6 of 11 cases.
  • The highest profile cases were the two dealing with race preferences in college admissions. The Court’s decision holding such preferences unconstitutional^[4]The two cases were combined into one decision. has been criticized bitterly by Democratic politicians and left-leaning media. In stark contrast, the decision was strongly supported by overall public opinion as well as all respondent subgroups–Republicans, Independents, and Democrats alike.

While the Supreme Court is not supposed to decide cases based on public opinion, a large and persistent gap between the Court’s decisions and American public sentiment would be cause for concern. However, the survey results demonstrate that no such gap exists. The same holds true for the survey results in previous years.^[5]See here for prior year survey results. Last year’s survey results were more mixed and the highest profile decision, Dobbs, was quite unpopular. Nevertheless, the Court’s decisions still aligned with majority public opinion more often than not.^[6]See here for more on last year’s survey.

The voting patterns of the justices in the surveyed cases also contradict the critics’ narrative of a six-justice conservative monolith. Ten of the 13 cases were split decisions, but only four of them featured all the conservative/Republican appointee justices on one side and the three liberal/Democratic appointees on the other.^[7]Indeed, only five out of all the cases decided by the Court this term involved a 6-3 split along ideological lines. See here for this and other statistics. The six conservatives voted as a bloc only in those four cases. Notably, the three liberals voted in lockstep twice as often as the conservatives–in eight of the ten cases. Neither case in which they diverged was particularly ideologically charged.

*                      *                      *                      *                      *

As the survey data show, accusations that the Court is fundamentally out of step with the American public and has lost their confidence are wrong. These accusations are also ironic given the low public standing of the accusers. Alarmingly, public trust in most American institutions is on the decline; the Supreme Court is no exception. However, the Court still ranks higher in public confidence than the President, and far above Congress and the media.^[8]See here for the latest results from Gallup.

Donald Trump has now been criminally indicted for the second time this year, with perhaps more to come.^[1]The same prosecutor who brought these charges is also investigating Trump’s actions relating to the January 6 attack on the Capitol, and authorities in Georgia are investigating him for possible … Continue reading  The second indictment, brought by federal Department of Justice Special Counsel Jack Smith, involves Trump’s alleged improper possession and handling of classified documents and obstruction of efforts by federal officials to recover them.

This indictment elicited the usual response from Trump.  He claimed to be totally innocent, once again the victim of a “witch hunt” conducted by a corrupt, even deranged, prosecutor. The reaction of many other prominent Republicans and their media allies was more disturbing, although just as  predictable. They joined Trump in condemning the Justice Department, echoing his claims that the indictment was politically motivated and a case of selective prosecution.

It’s true that Trump has been subjected to arguably partisan and unfounded legal attacks. The Russian collusion accusations that consumed much of his presidency have been thoroughly debunked. And Trump’s first indictment in New York relating to Stormy Daniels hush money payments was greeted by widespread skepticism as legally dubious and politically motivated. However, this second indictment is much harder to downplay.

It’s also true that many prominent officials—including President Biden, Hillary Clinton, and Mike Pence–have been lax (to say the least) in their treatment of classified documents. Moreover, leaking classified information is standard practice in Washington. The key difference here is that, according to the indictment, Trump engaged in obstruction and deceit in rebuffing federal officials seeking the return of classified documents. Paragraph 7 of the indictment alleges that Trump–

• • • suggested that his attorneys falsely claim to the FBI and grand jury that he did not have subpoenaed documents;
    • directed a staffer to conceal the documents;
    • suggested that his attorney hide or destroy the documents; and
    • caused a certification to be submitted to the FBI and grand jury falsely claiming that all subpoenaed documents had been produced while knowing that this was not true.

Even many legal experts on the right recognize that the charges here are fundamentally different and far more serious than previous accusations. (See, e.g., here, here, here, and here.) Bill Barr, Trump’s former attorney general, pulled no punches in a TV interview, observing that if even half the indictment can be proved, Trump is “toast.” He added:

“It’s a very detailed indictment and it’s very, very damning. This idea of presenting Trump as a victim here, a victim of a witch hunt, is ridiculous. Yes, he’s been a victim in the past. Yes, his adversaries have obsessively pursued him with phony claims. And I’ve been at his side, defending against them when he is a victim. But this is much different. He’s not a victim here.”^[2]More recently, Barr authored a comprehensive analysis of the indictment, including a point-by-point rebuttal of arguments seeking to minimize it.

Like anyone else, Trump is entitled to a presumption of innocence. However, Republicans, including several of his competitors for the GOP presidential nomination, were not content simply to make that point. Instead, they chose to join Trump in questioning the legitimacy of the charges. Trump’s supporters generally avoided addressing the facts laid out in the indictment. Rather, they focused on the Justice Department’s failure to pursue prominent Democrats who mishandled classified information.

As noted above, however, the others did not engage in the type of obstruction and lies that Trump is accused of here. Indeed, his alleged behavior in this case is all too typical of and unique to Trump. His long history of serial deception, flouting governmental norms, and showing contempt for the rule of law has already demonstrated his unfitness for public office. Yet most Republican voters as well as many of their elected officials and media boosters still accept Trump as their champion.

Sadly, much of the Republican Party has lost its moral compass and its common sense. While Trump’s latest indictment still may not be enough to dissuade his core supporters, it probably will further alienate the larger public and jeopardize his election prospects even more. Republicans can look forward to another round of election losses in 2024 unless they somehow come to see and acknowledge Trump for what he is and part ways with him.

Donald Trump will almost surely play a pivotal role in the election as the Republican nominee or as a spoiler. Either way, he is likely to cement a win for the Democratic ticket.

While Trump retains a substantial base in the Republican party and is the odds-on favorite to win the GOP nomination, he will face a huge challenge in the general election. His negatives consistently exceed his positives by a wide margin. In every election since his surprise win in 2016 he lost or was a major contributor to Republican losses.

Current polling shows Trump as competitive with or even leading President Biden in a rematch that most Americans dread. However, it’s unwise to put much stock in polls at this early stage. Trump is likely to fade as time goes by and “Trump fatigue” intensifies. His conduct in the wake of his 2020 defeat highlights his liabilities. His obsessive claims of a stolen election are patently and almost surely knowingly false. His actions relating to the election and the January 6 attack on the Capitol were clearly impeachable if not criminal. Trump’s legal problems could mount. His dubious indictment in New York probably gave him a boost, firing up his base and putting his GOP opponents in an awkward position. However, more serious criminal charges would be difficult to blow off.

Trump’s CNN “town hall” fiasco and other recent appearances reaffirm (if there was any lingering doubt) that he has not changed. He will once again campaign as a combative, divisive, thoroughly dishonest con artist and will make little effort to reach beyond his base. By contrast, although his administration has pursued a progressive agenda on many fronts, Biden will probably campaign as a moderate with much wider appeal to the electorate. Finally, while both are weak and highly unpopular candidates, Trump stands out as downright dangerous. He has repeatedly shown  disdain for basic democratic norms and the rule of law.

In short, Trump is very unlikely to win back the presidency if he becomes the Republican nominee. But even if he loses the nomination, he will probably remain a major drag on the Republican ticket. Trump being Trump, it’s nearly impossible to picture him in this scenario graciously conceding and endorsing the winning GOP nominee. Far more likely, he would refuse to accept the primary results, perhaps stay in the race as an independent, or at a minimum discourage his voters from backing the nominee. In what figures to be a close general election, another Republican nominee would struggle mightily without the support of Trump and his base voters, or worse, in the face of their active opposition.

A Republican loss in the presidential election with Trump as nominee or spoiler would likely cost Republicans their slim House majority as well. And while the Senate math for 2024 favors a Republican takeover, the Trump effect could also jeopardize that result.

Can Republicans escape the curse of Trump in 2024?  That’s a tall order. They would need to coalesce behind a non-Trump candidate who could somehow surmount the Trump base and win the nomination. Then, the nominee would need enough appeal to general election voters to offset the negative impact of a disgruntled Trump and his loyalists.

No such a candidate has emerged yet. Ron DeSantis, currently Trump’s main competitor, seems ill suited to the role. Instead of concentrating on his substantive accomplishments as Governor of Florida, DeSantis veered off into portraying himself as a combative and divisive mini-Trump “without the baggage.”  This strategy isn’t working either with the Trump base or the broader public. Trump cultists remain loyal to him despite or even because of his “baggage.” They embrace Trump viscerally as a giant middle finger to the elites of both parties and a major irritant to liberals. Why should they settle for an imitation Trump like DeSantis when they can have the real thing? At the same time, DeSantis’s  stunts pandering to the Trump base threaten to alienate non-Trump acolytes who make up most of the electorate.

It’s possible that DeSantis will adopt a new strategy or that another challenger will gain ground. At the very least, however, a successful challenger would need to set themselves apart from Trump by forthrightly rejecting his stolen election lies and condemning his post-election conduct. The challenger would also need to build a positive and forward-looking campaign agenda, rather than one based on grievance and vengeance. All of this may be too much for the current crop of challengers who mainly walk on eggshells when it comes to Trump. More likely, it will take another round of election defeats before Republicans shake Trump’s Faustian grip and set out to rebuild their party.

 

It’s tiresome to blog so much about the Thomases. However, the media war against them is relentless and the hyperbolic attacks keep coming, as they have since the battle over Justice Thomas’s confirmation decades ago.

The latest consists of two “bombshell” reports by ProPublica and the ensuing media and political frenzy over them. One report details lodging, transportation, and other gifts provided to Justice Thomas and his wife, Ginni, over the years by their longtime friend Harlan Crow, a wealthy real estate developer and conservative political activist. The other describes Crow’s 2014 purchase of the home of Justice Thomas’s mother, in which the Justice had a one-third ownership interest. The reports note that Justice Thomas did not list these gifts or the house sale on his financial disclosure forms. According to ProPublica, all of this violated the Ethics In Government Act.

The ProPublica reports received extensive coverage. They generated the usual cries of outrage from left-leaning pundits and Democratic politicians, including calls for Justice Thomas to resign or be impeached. Many on the left also cited the reports as further undermining the “legitimacy” of the Supreme Court.

Like other alleged “scandals” involving the Thomases, this one is greatly exaggerated.

ProPublica casts its reports in the worst possible light, frequently embellishing the facts. ^[1]For example, the report values the Indonesian cruise on Crow’s “superyacht” and transportation to and from it on Crow’s plane as a gift worth over $500,000–the total cost the Thomases … Continue reading However, there’s nothing illegal or nefarious about the interactions between Crow and the Thomases. To state the obvious, Supreme Court Justices, like everyone else, have the right to form friendships with whomever they please, including rich and politically active individuals. They are also free to accept generosity from their friends so long as they do not violate conflict of interest prohibitions. There is no indication of such violations here. Crow stated that he had no business before the Supreme Court, that the Thomases never requested any of his hospitality, that he never discussed court cases with Justice Thomas, and that neither he nor, to the best of his knowledge, anyone else present sought to influence the Justice on any legal or political issue. Nothing in the ProPublica reports contradicts these assertions.

The only legal issue raised by the reports is compliance with financial disclosure requirements. As it turns out, just a single item described in the reports clearly required disclosure by Justice Thomas. That was the 2014 sale of his mother’s house to Crow. Reportedly, Justice Thomas will amend his filing to add this transaction.

Most if not all of the largesse Crow provided the Thomases, including visits to his properties and the much-ballyhooed Indonesian cruise on his yacht, were exempt from disclosure under the applicable reporting rules. Those rules contained an exception to disclosure for “food, lodging, or entertainment received as ‘personal hospitality of any individual.’” The one grey area is whether the exception covered transportation in Crow’s private plane. Ethics experts differ on this. The experts sought out by ProPublica said unequivocally no. Others regard the rules then in effect as too vague to permit a definitive conclusion. The rules were subsequently amended (before the ProPublica reports came out) to specifically exclude from the “personal hospitality” exception “transportation that substitutes for commercial transportation.”

In sum, ProPublica’s extensive investigation uncovered only one definitive financial disclosure error by Justice Thomas. He has made other mistakes in his financial disclosure filings, as have other justices, but none evidences an intent to conceal. One is a minuscule oversight that hardly bears mention. More significantly, he neglected to report Ginni’s employment income for some years. However, her jobs and activities were well known, having been subject to vigorous media coverage over the years. Nor is there anything secretive about the Thomases’s  relationship with Crow. They have been quite open about the hospitality they received from Crow, and it has also been subject to media coverage going back at least to 2011. At the same time, it’s fair to say that Justice Thomas should be more diligent in his financial disclosure filings. Indeed, he would be well advised to be extra scrupulous since he will surely continue to wear a huge target on his back for the remainder of his service on the Court.

Moving beyond the legalities, is there anything inappropriate or untoward in Justice Thomas’s interactions with Crow? For most people, the answer likely depends on their overall view of him. Justice Thomas is a polarizing figure to such an extent that impressions of him have become largely intractable. In this regard, the ProPublica reports are somewhat like a Rorschach test. His detractors will view them as further confirmation that he is a corrupt tool of white, reactionary plutocrats—and, according to many on the identity-obsessed left, a traitor to his race. His admirers will view them as more spurious attacks on an outstanding jurist who has demonstrated independence and intellectual consistency since his appointment to the Court. To the latter, the notion that Justice Thomas’s relationship with Crow could affect his rulings is laughable.

Two additional points should be noted. First, Justice Thomas is by no means unique among Supreme Court Justices in accepting largesse from wealthy benefactors. A recent New York Times editorial observed that virtually all members of the Court for decades, both Republican and Democratic appointees, have accepted gifts and travel, both costly and modest, from outside individuals and groups. The editorial offers examples, some listed on financial disclosure forms and some not.

The Times editorial asserts that Justice Thomas is the most “egregious” (whatever that means), but there is no comprehensive basis for comparison. No justice past or present has been subjected to the intense scrutiny the media reserves for him. Furthermore, a few examples not mentioned in the editorial cast doubt on its assertion. Both former Justices William Brennan and William O. Douglas received financial benefits far exceeding $100,000 in today’s dollars. It’s certainly fair to consider whether existing Supreme Court ethics rules should be tightened, as many urge. But there is no valid reason to single out Justice Thomas for special condemnation.

Second, some pundits argue that Justice Thomas’s behavior is equivalent to or worse than former Justice Abe Fortas’s, and that he should follow Fortas’s example and resign. (See, e.g., here and here.) This is absurd. Justice Fortas received cash payments from benefactors with potential business before the Court that reached well into six figures in today’s dollars. The gift that led to his resignation came from convicted securities fraudster Louis Wolfson. Allegedly, Wolfson sought Fortas’s help to obtain a presidential pardon. Fortas denied acting on behalf of Wolfson and returned the payment but admitted discussing Wolfson’s “problems” with him. On top of this, Fortas regularly attended White House staff meetings while serving on the Court and briefed President Lyndon Johnson on internal Court deliberations.^[2]See here, here, and here for background.

The payments to Fortas were far more dubious than any largess Justice Thomas received, and his continued engagement with the White House as a sitting Supreme Court Justice was breathtakingly inappropriate. His conduct was much more serious than anything Justice Thomas did in terms of raising questions of judicial independence and objectivity. This is not to suggest that Fortas was corrupt; to the contrary, he had a distinguished career before and after his service on the Court. The point is that the accusations against Justice Thomas, even if fully credited, do not remotely resemble Fortas’s issues.

 

 

 

Like virtually all the seemingly endless media attacks on the Thomases, recent reporting on Justice Thomas’s financial disclosure issues has produced more smoke than fire. This is true of the leading reports by ProPublica, which will be analyzed in a forthcoming post. It is even more so in the case of a downright frivolous Washington Post follow-up story. Indeed, the Post story illustrates how far the media will go to over-hype these issues.

The headline of the Post story, echoed by a number of other media outlets, reads: “Clarence Thomas has for years claimed income from a defunct real estate firm.” What? It turns out a family business tied to the Thomases apparently reorganized at one point and tweaked its name from “Ginger, Ltd., Partnership” to “Ginger Holdings, LLC.”  That’s it. The story does not suggest that Justice Thomas failed to report fully and accurately income received from this enterprise, which is by no means “defunct” but simply operating under a slightly different name. Justice Thomas’s only sin was failing to pick up the subtle name change.

A less provocative and more accurate headline for the story would be: “Clarence Thomas’s financial disclosure filings contain a slight discrepancy in the name of a real estate firm from which he claimed income.” But who would read an article with a nothing headline like that? A better question is would any media outlet publish a story with so little substance to it unless it involved Justice Thomas or his wife?

 

After Speaker McCarthy’s election fiasco, the conventional wisdom is that the House of Representatives faces two chaotic years of Republicans wreaking havoc and threatening dire consequences for the Nation. But is a more optimistic scenario possible?

It’s hard to argue with the widespread predictions of chaos and dysfunction for the 118^th Congress. Certainly, Kevin McCarthy undercut his power as speaker with the many concessions he made in his zeal to reach that office at any cost. Even apart from this year’s speaker election debacle, the recent history of fractious Republican control of the House does not bode well for effective governance. (Ask former Speakers Boehner and Ryan.)

The 20 House members who resisted McCarthy along with other Freedom Caucus types are presumed to be the beneficiaries of McCarthy’s concessions as well as the likely perpetrators of the mayhem to come. But could the concessions work to the benefit of members with more positive agendas, such as what remains of the centrists? Among the concessions are several that grant individual House members greater say over legislation and their leadership than they’ve had in the past. This and the GOP’s thin 222-213 majority give potentially significant influence to small but determined coalitions of any makeup, not just those on the far right.

The centrist ranks of the House are slim and getting slimmer with each election cycle. However, there are pockets of members from both parties who arguably still fit this description: the New Democrat Coalition, the Democratic “Blue Dog” Coalition, the Republican Governance Group, and perhaps most promising, the bipartisan Problem Solvers Caucus. If a critical mass of centrist members (including at least five committed Republicans) was serious about developing a constructive agenda, courageous enough to work across party lines, and willing to invest the necessary effort, they could form an influential power base of their own within the closely divided House.

Small bipartisan “gangs” of Senators have successfully used this approach to sidestep their more partisan leaders and break impasses on important issues. Most recently, centrist Senator Joe Manchin virtually controlled the Senate agenda during the 117^th Congress thanks to its 50-50 split and the filibuster rule. (Of course, individual House members still have much less power to affect legislation than their Senate counterparts even with the recent rules changes.)

It’s true that the challenges would be great. Centrists receive scant attention compared to their more flamboyant colleagues from the fringes such as the Freedom Caucus and the Squad whose grandstanding plays much better with the politicized media, hyper-partisan donors, and monolithic primary voters who dominate today’s political landscape. These forces reward political polarization and reject anything short of ideological purity.

On the other hand, several factors make an effective centrist power base in the House more than a pipe dream. Most notably, Congress is ripe for true reform that moves it toward actually doing the people’s business. The public is fed up with Congress and its members from both parties. Congress ranks dead last in public confidence among American institutions measured by Gallup, coming in most recently with an abysmal 7 percent positive rating. And rightly so. Congress chronically fails to carry out its most basic constitutional responsibilities, leaving pressing national policy challenges unresolved and abdicating its authority to the executive branch and the courts. Its only aspect that remains reliably bipartisan is wild fiscal irresponsibility.

The public also gives extremely low marks to congressional leaders and other politicians of both parties. Contrary to the impression the media conveys, the American public is not nearly as polarized as the political classes. Most Americans prefer moderation, compromise, and problem-solving over political extremism and constant discord. A congressional coalition that embodies the former traits should appeal to ordinary citizens of all political stripes–Democrats, Republicans, and independents alike.

Additionally, House Republicans lack any serious plan for governance. McCarthy has no clear goals other than obtaining and presumably retaining the speakership. His tormentors on the right likewise lack any realistic policy agenda. Some are just self-promoters; those capable of looking beyond themselves seem more interested in undermining the federal government than running it. Also, Trump no longer inevitably pulls the strings of congressional Republicans.

In short, no Republican agenda for the 118^th Congress is on the horizon beyond politicized investigations, quixotic show votes, and games of chicken over government shutdowns and debt defaults. A constructive and substantive House agenda aimed at real governance could fill the policy void.

Such an agenda might start with a few basic planks that should resonate widely with the public:

• • A firm commitment to oppose government shutdowns and default on the national debt.
  • Support for a return to the “regular order” of timely enacting individual appropriations bills and opposition to rushed, opaque “omnibus” bills. (Things the House leadership has already endorsed.)
  • High priority oversight and legislative initiatives to combat massive fraud, waste, and abuse. (The federal government made an estimated $281 billion of improper payments in 2021.)
  • Concrete initiatives to address major performance shortcomings in the federal government that attract little political or media attention but are a great disservice to American citizens. (GAO’s “high risk list” provides a roadmap.)
  • Rational and achievable steps to get the unsustainable federal debt, which currently exceeds $24 trillion, under control. (The blueprint developed by the nonpartisan Committee for a Responsible Budget is a good starting point.)

From there, a centrist group could select from an extensive menu of important policy issues that divide the political extremes but offer solutions that have broad public support. They include healthcare, immigration, crime, and tax policy, just to name a few.

Ironically, to be successful a centrist coalition would need to borrow some tactics from the more extreme House groups such as aggressively seeking publicity and external support. While a centrist agenda lacks bombast that generates headlines, it should spark the interest of whatever media and other influencers remain serious and not too ideologically biased. In terms of funding, one advantage some high-profile fringe members have is relying primarily on small donors, which enables them to avoid dependence on major PACs and the like. A centrist coalition could also employ this model.

Finally, an effective centrist coalition would have to be willing to use hardball tactics when necessary, recognizing that they hold the speaker’s fate in their hands. If, for example, McCarthy bowed to right wing pressure and refused to allow a floor vote on essential legislation such as a stopgap funding measure or one needed to avoid a debt default, the coalition could join with a presumably united Democratic minority to replace him as speaker.

The House Select Committee to Investigate the January 6 Attack on the United States Capitol had the potential to make major contributions to understanding the disgraceful events of January 6, 2021, and preventing a recurrence. As it concludes its work, what did the Committee accomplish?

The Committee’s main accomplishment was developing a clear and compelling exposition of Trump’s many transgressions relating to January 6 and indeed the whole post-election period. While it uncovered no game-changing new evidence, the Committee did add a great deal of corroborating detail as well as some dramatic flourishes.

The Committee presented its work mainly through professionally choreographed hearings that resembled a TV miniseries more than a typical congressional investigation. The Committee’s case against Trump, which relies mainly on the testimony of Republican witnesses, should be highly persuasive to all but diehard Trump acolytes. It demonstrates beyond reasonable doubt that Trump’s reckless behavior led directly to the riot and that his dereliction enabled it to fester for hours. It also establishes to a virtual certainty that Trump’s claims of a stolen election were utterly, and almost certainly knowingly, false.

While the Committee’s approach has been criticized as one-sided, the GOP is mainly responsible for this. Republicans voted down legislation to establish an independent, bipartisan commission to investigate the events of January 6, leaving a congressional committee as the only alternative. House Republican leaders then foolishly chose to boycott the Committee, and Trump along with many of his supporters refused to cooperate with it. In any event, the story of January 6 as regards Trump has only one credible side. His behavior was clearly impeachable on several grounds and demonstrated his unfitness for public office. Whether it was also criminal remains to be seen.

However, the Committee largely ignored a parallel January 6 scandal that rivals Trump’s outrageous behavior: the epic security failures that allowed an unruly gang of yahoos to successfully take over the seat of our democracy. The January 6 rioters included some truly bad actors who committed serious acts of violence in breaching the Capitol. For the most part, however, the rioters were unarmed, unorganized, and unfocused. How could a ragtag mob like this seize the Capitol of the United States and do so with relative ease? Why did it take so long to clear them out? And most important, what does their success portend for a possible future attack on the Capitol that might be better organized and more weaponized?

While individual police officers offered heroic resistance, their leadership failed them as well as Congress and the American people. Law enforcement agencies were woefully unprepared for the assault on the Capitol. (Some experts describe January 6 as the worst U.S. intelligence failure since 9/11.) Once the Capitol was breached, the agencies were unable to mount a coherent response for hours thereafter. Had security forces properly prepared and effectively executed their responsibilities, the attack, if it came at all, almost surely would have been repelled.

The few existing inquiries into January 6 security failures describe a host of problems including underestimating threats, poor planning and coordination, lack of leadership, failure to share intelligence, and bureaucratic indecisiveness. Recently released interview transcripts show that such problems were specifically made known to the Committee. Several congressional law enforcement officials resigned in the aftermath of the riot. However, there has been no other accountability on the part of law enforcement. Rather, agencies obfuscate, contradict, and blame each other. (See, e.g., here and here.) Even where countermeasures have been identified, agencies are slow to implement them.

Nevertheless, the Committee, in its singular focus on Trump and apparent zeal to fix exclusive blame for January 6 on him, essentially turned a blind eye to these security failures. The Committee’s hearings completely passed over them and its final report gave them short shrift. Two appendices to the report describe law enforcement and intelligence actions but provide no useful analysis.

The Committee has been widely (and rightly) praised for its exhaustive treatment of all things Trump relating to January 6. Its inattention to security issues has received considerably less attention, although it has not gone entirely unnoticed. (See here and here.) One commenter pointedly observed:

“The [report] summary systematically elides the egregious failures of law enforcement and intelligence agencies to predict and respond to the violence of Jan. 6. More than that, it goes out of its way to present those agencies in a positive light, despite their catastrophic neglect.”

The Committee’s disregard of security issues is particularly mystifying since they were a key part of its mandate. The House resolution establishing the Committee, as set forth on its website, specifically recites some of the intelligence and law enforcement failures relating to January 6 and lays out a number of specific security-related subjects for the Committee to investigate. Even the Committee staff was evidently taken aback by its apparent indifference to these subjects.

On balance, the Committee’s failure to address security issues outweighs its accomplishments regarding Trump. The basic narrative of Trump’s outrageous behavior was all too clear before the Committee began its work. The Committee usefully reenforced and expanded upon this narrative but came up with nothing fundamentally new. On the other hand, the equally outrageous security failures are more complex, obscure, and difficult to sort through. They cried out for greater scrutiny, which the Committee could and should have provided. Instead, it produced nothing worthwhile on this crucial front.

 

 

 

 

 

 

 

 

Background. Article I, section 4, clause 1 of the U. S. Constitution, known as the Elections Clause, provides that the times, places, and manner of holding congressional elections “shall be prescribed in each State by the Legislature thereof,” subject to potential revision by Congress. Pursuant to this authority, the North Carolina legislature enacted a redistricting map in 2021 that heavily favored Republicans. In the ensuing litigation, the state’s courts determined that the legislature’s map constituted a partisan gerrymander in violation of the state constitution. The courts then developed and substituted a new redistricting map that was used for the 2022 midterm elections.

In Moore v. Harper, recently argued before the U.S. Supreme Court, the North Carolina legislature challenged the authority of its state courts to overturn its redistricting map and replace it with their own. The challenge is based on the so-called “independent state legislature” (ISL) theory. The ISL theory posits that by vesting authority to prescribe congressional election rules specifically in the “Legislature” rather than the state as a whole, the Elections Clause exempts the legislature’s exercise of this authority from the checks and balances that would ordinarily apply under the state’s legal regime. Thus, the theory goes, state courts have no power to review exercises of this authority for compliance with the state constitution; indeed, the legislature is not bound by the state constitution when exercising this authority.

Problems with the ISL theory. There are many. For starters, nothing in the language of the Elections Clause says or implies that state legislatures assume a unique role completely divorced from the normal constraints applicable to them when enacting election rules. On its face, the language simply assigns a function to the state legislatures, taking them as it finds them. Nor is there any evidence that the language was understood to have a larger, and indeed radical, meaning. The Supreme Court observed in Arizona State Legislature v. Arizona Independent Redistricting Commission that, based on the historical record, the dominant purpose of the Elections Clause was to empower Congress to override state election rules, not to affect how states enact them.

Next, the legislature does not in fact exercise exclusive state authority when acting under the Elections Clause. Decades ago, the Supreme Court held in Smiley v. Holm that state redistricting legislation was, like other legislation, subject to state constitutional requirements for presentment to the governor and potential veto. Petitioners in Moore do not challenge this decision.

Next, the Supreme Court has in the past assumed that state courts have authority to review state legislation prescribing election rules for compliance with the state constitution. In Rucho v. Common Cause, the Court held that partisan gerrymandering presents nonjusticiable political questions beyond the reach of the federal courts. However, the majority opinion assured that the states were “actively addressing the [gerrymandering] issue on a number of fronts,” including state judicial decisions. (Gerrymandering has in fact become less a problem than it used to be due in part to state court interventions.)

Next, the state judiciary cannot as a practical matter be excluded from any role regarding Election Clause laws. Enforcement and application of these laws inevitably involves litigation, which in turn requires state courts to issue decisions interpreting them.

Finally, to conclude that the Election Clause liberates a state legislature from its own constitution would be incongruous in the extreme and violate principles of federalism. Indeed, the Supreme Court noted in Arizona State Legislature, above: “Nothing in [the Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.”

In sum, the ISL theory finds no support in the language or background of the Elections Clause, makes no sense conceptually or practically, undermines federalism, and contradicts past Supreme Court pronouncements on the Elections Clause. The far better view is that a state legislature when exercising authority under the Elections Clause remains subject to all the processes, checks, and balances that ordinarily apply to it. This includes review by state courts for compliance with the state constitution.

Invoking the ISL theory to bar state court review of alleged partisan gerrymanders under the Elections Clause is particularly problematic. It would immunize such gerrymandering from any judicial remedy. As noted, the Supreme Court has foreclosed federal judicial review. If the Supreme Court reneges on its assurance in Rucho and eliminates state judicial review as well, aggressive gerrymandering will surely intensify. History shows that both political parties will engage in this practice whenever they can get away with it.

An alternate theory. While the ISL theory is clearly overkill, it is important to uphold the authority the Elections Clause grants state legislatures to prescribe congressional election rules. They have the right to exercise this authority without infringement by other state entities, including state courts. And, since their authority is derived from the U.S. Constitution, there is a legitimate federal interest in ensuring that it is not usurped. The respondents in Moore acknowledge that some level of federal judicial review is warranted of state court decisions that contradict laws enacted under the Elections Clause, notwithstanding the total or near total deference normally accorded state court decisions that interpret and apply state law.

Based on the oral argument, it is likely that a majority of the justices will reach a decision in Moore that respects the authority of state legislatures under the Elections Clause along with the federal interest in protecting it while also respecting the states’ interest in ensuring that their laws operate in compliance with their own legal regimes. An approach balancing these important and potentially conflicting interests may be found in former Chief Justice Rehnquist’s concurrence in Bush v. Gore.

The Rehnquist concurrence. In Bush v. Gore, the Supreme Court famously (or infamously) overturned on equal protection grounds a decision by the Florida Supreme Court that ordered a statewide recount of ballots following the 2000 presidential election. Then Chief Justice Rehnquist wrote a concurring opinion, joined by Justices Scalia and Thomas, offering an additional basis to overturn the decision. He asserted that the Florida court’s decision undermined the statutory scheme enacted by the state legislature in violation of Article II, section 1, clause 2 of the U.S. Constitution, which provides (using language similar to the Elections Clause) that each state shall appoint presidential electors “in such Manner as the Legislature thereof may direct.”

Many pundits maintain that the Rehnquist concurrence represents a form of ISL, perhaps “ISL light.” This is clearly wrong; the Rehnquist concurrence does not embrace ISL at all. On the contrary, it assumes that state legislatures acting under the Article II clause (or by analogy the Elections Clause) are fully subject to the constraints that normally apply, including review by state courts. The difference is that federal courts have a greater role than they ordinarily would regarding state law issues to ensure that state courts do not usurp the authority of the state legislature granted by the U.S. Constitution.

Standard of review. If the Supreme Court does adopt a position in Moore resembling the Rehnquist concurrence, a key question will be what standard of review applies in scrutinizing state court decisions. Respondents argued that state courts should be accorded extreme deference. One maintained that deference should be “stratospheric” and another asserted that a decision should be upheld unless it was outrageous enough to suggest that the state court was “not acting like a court.” However, standards this high would be virtually insurmountable and provide no meaningful review. A more workable and familiar standard would be whether a state court decision is arbitrary and capricious. This standard still accords substantial deference to the state court decision.

Application to gerrymanders. Partisan gerrymandering is inherently suspect; even the Supreme Court acknowledged in Rucho that it is unjust and incompatible with democratic principles. Thus, most state court decisions striking down partisan gerrymanders likely would survive federal review under an arbitrary and capricious standard even if they relied only on broad concepts from their  constitutions. This includes the North Carolina Supreme Court decision at issue in Moore. There is nothing in the North Carolina constitution specifically addressing partisan gerrymandering. However, the state court concluded that the practice violated the right of voters to have all votes count equally based  on several state constitutional provisions including those guaranteeing its citizens free elections and equal protection of the laws.

In addition to examining the legal reasoning, federal courts reviewing a state court gerrymandering decision might consider the practical result of the decision. For example, if a state court converted a legislative electoral map heavily favoring one party into one heavily favoring the other, this would be strong evidence of an arbitrary and capricious decision. In Moore, however, the result reached by the North Carolina Supreme Court was eminently reasonable. Experts estimated that the gerrymandered map the court rejected would have given Republicans a 10-4 edge in House seats, although the state’s electorate is roughly split 50-50 between Republicans and Democrats. Under the substitute map the court adopted, each party won seven House seats in 2022, mirroring the composition of the electorate.

Other applications. When would a state court decision contradicting legislatively enacted election rules violate the U.S. Constitution? A Pennsylvania Supreme Court decision revising the legislature’s rules governing the 2020 election is a likely example. The Pennsylvania legislature appealed this decision to the United States Supreme Court but the Court ultimately declined to hear it, presumably because it became moot. At an earlier stage, however, Justice Alito (joined by Justices Thomas and Gorsuch) issued a statement indicating that the Pennsylvania court decision was probably unconstitutional. As he noted, the state court itself acknowledged that the election law provisions it overrode were neither ambiguous nor inconsistent with the state constitution.

Conclusion. The ISL theory is wrong in virtually every way a legal theory can be. Invoking it to foreclose any judicial review of gerrymandering affecting federal elections would be particularly egregious. At the same time, state courts cannot be allowed to usurp the authority the U.S. Constitution specifically grants their legislatures to enact federal election rules. Therefore, it is appropriate for federal courts to review state judicial decisions that countermand legislative rules impacting federal elections to ensure that they are not arbitrary and capricious. Applying this standard, the decision of the North Carolina Supreme Court at issue in Moore v. Harper should be upheld.