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January 6th Probe: Recent flurry of activity, including former key Trump advisor Rudy Giuliani meeting with Special Counsel Investigators
- The New York Times: Giuliani Sat for Voluntary Interview in Jan. 6 Investigation: Rudolph W. Giuliani, who served as former President Donald J. Trump’s personal lawyer, was interviewed last week by federal prosecutors investigating Mr. Trump’s efforts to overturn the 2020 election, people familiar with the matter said. The voluntary interview, which took place under what is known as a proffer agreement, was a significant development in the election interference investigation led by Jack Smith, the special counsel, and the latest indication that Mr. Smith and his team are actively seeking witnesses who might cooperate in the case.The session with Mr. Giuliani, the people familiar with it said, touched on some of the most important aspects of the special counsel’s inquiry into the ways that Mr. Trump sought to maintain his grip on power after losing the election to Joseph R. Biden Jr.
- CNBC: Rudy Giuliani met special counsel prosecutors probing Trump over 2020 election: Rudy Giuliani, a former top lawyer for Donald Trump, met in recent weeks with federal prosecutors who are investigating the ex-president for his efforts to reverse his loss in the 2020 election, NBC News confirmed Wednesday.Giuliani led the legal fight by Trump’s campaign to overturn President Joe Biden’s victory in the election during the weeks before it was confirmed by a joint session of Congress that began meeting on Jan. 6, 2021. The news of Giuliani’s voluntary interview with special counsel Jack Smith’s prosecutors came before his investigators met Wednesday in Atlanta with Georgia Secretary of State Brad Raffensperger as part of that criminal probe. Trump, in an early January 2021 phone call, unsuccessfully pressured Raffensperger to “find” him enough votes in Georgia to overturn Biden’s victory in that state. Georgia was one of several states that gave Biden his margin of victory in the Electoral College, the body that actually selects American presidents after the popular vote.
- CBS: Rudy Giuliani interviewed by special counsel in Trump election interference probe: The Justice Department’s special counsel investigators interviewed Rudy Giuliani recently as part of their probe into alleged efforts to interfere with the lawful transfer of power following the 2020 presidential election, a spokesperson for Giuliani confirmed Tuesday. “The appearance was entirely voluntary and conducted in a professional manner,” said the spokesperson, Ted Goodman, who is a political advisor to Giuliani. A source familiar with the matter said Giuliani was questioned about fundraising and meetings that took place between Nov. 3, 2020, and Jan. 6, 2021, when President-elect Biden’s electoral college victory was certified despite a deadly riot at the Capitol. CNN first reported that investigators for special counsel Jack Smith interviewed Giuliani, who was former President Donald Trump’s personal attorney for much of Trump’s time in office — and was among a group of attorneys who falsely alleged Trump had won the 2020 election.
- AP News: Georgia elections official to speak to federal prosecutors probing Trump’s efforts to undo 2020 loss: Georgia Secretary of State Brad Raffensperger is scheduled to speak to federal prosecutors from the office of special counsel Jack Smith, who is investigating efforts by former President Donald Trump and his allies to overturn his 2020 election loss. In a rambling phone call on Jan. 2, 2021, Trump suggested Raffensperger, the top elections official in Georgia, could help “find” the votes necessary to reverse Democrat Joe Biden’s narrow presidential election win in the state. The call came after Trump and his allies spent weeks insisting without evidence that widespread election fraud was the cause of his loss in Georgia and publicly berating Raffensperger for failing to take steps to reverse it. The secretary of state’s office on Tuesday confirmed that he would speak to special counsel Jack Smith’s prosecutors Wednesday in Atlanta. The planned interview was first reported by The Washington Post.
Supreme Court shuts down radical “independent state legislature” theory, rejecting unchecked power of state legislatures in federal elections
- The Washington Post: Supreme Court rejects theory that would have meant radical changes to election rules: The Supreme Court on Tuesday rejected what would have been a radical change in election law, dismissing the theory that state legislatures have almost unlimited power to decide the rules for federal elections and draw partisan congressional maps without interference from state courts. The Constitution’s elections clause “does not insulate state legislatures from the ordinary exercise of state judicial review,” Chief Justice John G. Roberts Jr. wrote in a 6-3 decision. The decision was praised by Democrats and civil rights groups, more for firmly rebuffing what they viewed as an outlandish theory than for establishing new law. A wide coalition of scholars, liberal lawyers and conservative former judges had denounced the theory as unmoored and extreme.
- The New York Times: Supreme Court Rejects Theory That Would Have Transformed American Elections: The Supreme Court on Tuesday rejected a legal theory that would have radically reshaped how federal elections are conducted by giving state legislatures largely unchecked power to set rules for federal elections and to draw congressional maps warped by partisan gerrymandering. The vote was 6 to 3, with Chief Justice John G. Roberts Jr. writing the majority opinion. The Constitution, he said, “does not exempt state legislatures from the ordinary constraints imposed by state law.” Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented. The decision followed other important rulings this term in which the court’s three liberal members were in the majority, including ones on the Voting Rights Act, immigration and tribal rights. Though some of the biggest cases are still to come, probably arriving by the end of the week, the court has so far repeatedly repudiated aggressive arguments from conservative litigants. The case concerned the “independent state legislature” theory. It is based on a reading of the Constitution’s Elections Clause, which says, “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”
- NPR: Supreme Court rejects Independent State Legislature theory, but leaves door ajar: The U.S. Supreme Court on Tuesday repudiated the most extreme form of a controversial legal theory that, if adopted, would have radically reshaped the way elections are conducted, giving state legislatures virtually unchecked power to decide election rules. By a 6-to-3 vote, the court rejected the so-called Independent State Legislature theory advanced by the Republican-dominated North Carolina state legislature. Writing for the court majority, Chief Justice John Roberts said that the U.S. Constitution does not, as the lawmakers had claimed, insulate their actions from review by the state courts. To the contrary, he said, state legislative power is constrained by the federal and state constitutions, as well as ordinary state laws. At the same time, however, Roberts said that in overseeing election provisions, state courts “do not have free rein” to exceed “the ordinary bounds of judicial review.” How to know when courts do exceed that power? The court majority didn’t say, leaving for another day the task of articulating a standard for determining when federal courts may tell a state court that it has gone too far in interpreting state law.
- Politico: How the Supreme Court’s decision on election law could shut the door on future fake electors: The Supreme Court’s rejection of a controversial election theory may also have another huge political consequence for future presidential contests: It obliterated the dubious fake elector scheme that Donald Trump deployed in his failed attempt to seize a second term. That scheme relied on friendly state legislatures appointing “alternate” slates of pro-Trump presidential electors — even if state laws certified victory for Joe Biden. Backed by fringe theories crafted by attorneys like John Eastman, Trump contended that state legislatures could unilaterally reverse the outcome and override their own laws and constitutions to do so. Mainstream election lawyers on both sides of the aisle denounced the theory in the months after the 2020 election. But because no court had ever directly ruled on the theory, its proponents were able to describe it as a plausible, if untested, interpretation of constitutional law. Eastman himself, currently facing disbarment in California for his actions to subvert the election, has claimed that he was engaged in “good-faith” advocacy on an unsettled legal question. But by rejecting the so-called independent state legislature theory in Moore v. Harper on Tuesday, Chief Justice Roberts effectively extinguished it as a plausible path in 2024 and beyond.
In The States
PENNSYLVANIA: Pennsylvania’s mail-in voting law is upheld again, as court rules against Republican challenge
- Philadelphia Inquirer: State court rejects GOP challenge to Pennsylvania mail voting law: The law that created mail voting in Pennsylvania has withstood another Republican legal challenge. The Pennsylvania Commonwealth Court on Tuesday rejected GOP arguments that recent court decisions in the ongoing legal battle over whether to count ballots with missing or incorrect dates triggered a provision that would render the broader statute, known as Act 77, invalid. Act 77 includes a clause that says the mail voting law must be scrapped if any of its individual requirements are struck down by courts. Fourteen current and former Republican state lawmakers had contended that recent rulings calling for the counting of undated ballots had effectively invalidated the law’s requirement that voters handwrite a date on their ballot’s outer envelope and thus rendered the entire mail voting law void. But in its unanimous opinion Tuesday, the Commonwealth Court disagreed.
VIRGINIA: Lawsuit takes aim at state law stripping felons of voting rights
- The Hill: Lawsuit challenges Virginia law that strips felons of voting rights: A coalition of advocacy groups filed a federal lawsuit Monday over a Virginia law that automatically stripped convicted felons of their voting rights shortly after the Civil War. The American Civil Liberties Union (ACLU) of Virginia, voting rights advocacy group Protect Democracy and law firm WilmerHale filed the lawsuit Monday against Virginia Gov. Glenn Youngkin (R) as well as other state officials. The lawsuit alleges that the state violated a 150-year-old law that established the rules of Virginia’s readmission into the Union after the Civil War ended. “Some of the most pernicious attempts to suppress the voting rights of Black citizens originated in the immediate aftermath of the Civil War, but they have consequences that persist to this day,” Vishal Agraharkar, ACLU of Virginia senior supervising attorney, said in a statement. “Our constitution has enabled mass disenfranchisement through decades of over-criminalization, and it turns out that was illegal.”
OREGON: Oregon voters will decide whether to embrace ranked-choice voting in 2024 referendum
- NBC News: Oregon becomes the latest state to put ranked choice voting on the ballot: Oregon voters will decide next year whether to implement ranked choice voting for all state and federal elections, according to a new law enacted by the Legislature. That measure, passed Sunday by state Democrats in one of their final actions of the 2023 session, will give voters the final say — on the November 2024 ballot — over whether future statewide and federal races in Oregon should be conducted with the increasingly popular election model. A burst of states, cities and counties have adopted the model in recent years, though Oregon is the first state in which the Legislature approved sending the question to voters. In ranked choice elections, voters identify their first choices on their ballots, then rank the other candidates in order of preference. If no candidate receives a majority of first-choice votes on the first count, the election moves to an instant runoff. The candidate with the fewest votes gets eliminated, and ballots cast for that candidate are recast for voters’ second choices. The process repeats itself until a candidate reaches a majority.
FLORIDA: Immigrant rights groups are suing to block Florida’s new restrictions on voter registration organizations
- WFSU: Latino voter registration groups sue over Florida’s new elections law: Immigrant rights groups are suing to block Florida’s new restrictions on voter registration organizations. “All Floridians — including non-citizens — have the right to participate in the work of building a better democracy through civic engagement,” wrote Estee M. Konor, an attorney representing the plaintiffs in a press release announcing the lawsuit. “This law is a brazen attempt to shut down that powerful work by preventing non-citizens from assisting with voter registration efforts in their communities.” Voter registration groups that primarily serve Hispanic and Latino communities are the main plaintiffs in Hispanic Federation v. Byrd. They claim the new law — SB 7050 — will significantly reduce the number of voters they’re able to register. They’re seeking a preliminary injunction to block the law from taking effect on July 1. U.S. District Judge Mark Walker in Tallahassee will hear arguments in the case on Wednesday at 9 a.m. The case focuses on a specific provision of the law that prevents immigrants from getting involved in the political process. Under the new law, voter registration groups could face $50,000 in fines for every noncitizen volunteer who “handles” or “collects” voter registration forms. Plaintiffs argue that violates the 1st and 14th Amendments to the U.S. Constitution, along with federal civil rights statutes.
What Experts Are Saying
Abha Khanna, counsel of record for the Harper plaintiffs in Moore v. Harper and Elias Law Group Partner: “[This week’s] decision from the Supreme Court is a resounding victory for free and fair elections in the United States. The independent state legislature theory is a dangerous, fringe legal theory that has no place in our democracy. In its most extreme form, the Independent State Legislature Theory could have weakened the foundation of our democracy, removing a crucial check on state legislatures and making it easier for rogue legislators to enact policies that suppress voters and subvert elections without adequate oversight from state courts. We are incredibly relieved that the Supreme Court decisively rejected this dangerous theory.” Statement
Neal Katyal, former US Acting Solicitor General and Moore v. Harper counsel of record for all non-state respondents: “In a 6-3 decision authored by Chief Justice Roberts, the Supreme Court in Moore v. Harper powerfully rejected the independent state legislature theory. The Court adopted the arguments made by my client Common Cause in every material respect. Following the Court’s decision, it is clear that state legislatures must comply with state constitutions when engaged in congressional redistricting. State courts may exercise judicial review to ensure that state legislatures do not violate state constitutional provisions. And federal courts in turn may review state court decisions to ensure they do not circumvent federal constitutional requirements. People, including people on our side of the v., didn’t believe we could win. They wanted to try to get rid of the case. Those arguments were wrong, and misguided, and stand as a powerful lesson that through careful study of the US Supreme Ct’s decisions, litigants can win cases that stand up for our democracy.” Courtside
Michael Waldman, president and CEO of the Brennan Center for Justice at NYU School of Law: “The independent state legislature theory would have utterly upended our system of elections. According to Brennan Center research — which was submitted to the Supreme Court for consideration in the case — adopting the theory would have undermined hundreds of state constitutional provisions, hundreds of state court decisions, and more than 650 delegations of authority by state legislatures to other state officials to administer federal elections…Unfortunately for the people of North Carolina, the Supreme Court’s decision will not restore fairness to their electoral maps. When conservatives won control of the state supreme court in a recent election, the justices overruled their predecessors and reinstated the gerrymandered map. Those maps will remain in place until the next redistricting cycle. Also, the Court should never have heard the case — there is now a more or less perfect record that no court has ever upheld this fringe theory. The headline is that checks and balances persist in election administration, and a party that seizes a legislative majority cannot abuse its position to entrench itself in unchecked power. The independent state legislature theory is dead.” Brennan Center for Justice: The Briefing
Marc Elias, founder of Democracy Docket: “In Moore, the ISL theory did not just fail to gain a majority, it emerged discredited. The result will be to remove a cloud over the 28 active state court cases that challenge congressional maps and state laws regulating federal elections. Most immediately impacted will be the seven cases that involve state constitutional challenges to congressional maps, almost all of which bring partisan gerrymandering claims. In the longer term, the remaining 21 lawsuits aimed at voter suppression and election subversion laws will continue unimpeded by the threat of the ISL theory.” Democracy Docket: A Dangerous Legal Theory Is Rejected | Tweet
Michael Podhorzer: “To anyone surprised by the Moore v. Harper SCOTUS ruling: Don’t be. As I wrote in December, the oral arguments showed that fault lines are emerging between the capitalist and the MAGA wings of the coalition against the 20th century. The MAGA wing of this revanchist coalition wants to repeal the social justice gains made since the 1950s. The capitalist wing wants to take us back to the pre-New Deal 1920s. They are in an uneasy alliance, constantly fighting for the driver’s seat. The Federalist Society majority on SCOTUS doesn’t mind giving MAGA substantive policy wins (e.g. Dobbs), but they do mind giving them too much political power.” Tweets | Dec. 2022: Moore v. Harper and the Emerging Divisions in the Revanchist Coalition | NEW Substack: Don’t Be Surprised by Moore v. Harper
Leslie Dach, Congressional Integrity Project senior advisor: “[This week’s Supreme Court Independent State Legislature] decision is a clear defeat for MAGA Republicans intent on taking away the right of Americans to choose their own leaders. The ‘independent state legislature’ theory is an outrageous assault on our democracy, concocted by bad actors in an attempt to overthrow the results of elections they know they have lost. It is extremely concerning that a single justice on the court would have agreed with the theory, going against precedent and our own Constitution. Unfortunately, the fight to defend democracy and the sanctity of elections continues as MAGA Republicans, including Donald Trump, continue to deny the results of the last election and any other outcome that doesn’t go their way.” Statement
Headlines
The MAGA Movement And The Ongoing Threat To Elections
Salon: “Trump thinks he has this big army out there still”: A MAGA movement betrayed has now morphed
Trump Investigations
The Washington Post: The Trump classified-document audio may be worse than we thought
The New York Times: The Attention Was All on Mar-a-Lago. Some of the Action Was at Bedminster.
The New York Times: Trump Countersues E. Jean Carroll, Claiming She Defamed Him This Time
The Atlantic: The Theory That Explains Everything About the Trump Documents Case
USA Today: Trump’s Slippery, Shifting Self Defense in the Documents Case
The Washington Post: It’s not just Mar-a-Lago: Trump charges highlight his New Jersey life
Rolling Stone: Donald Trump Did Not Have a Great Day in Court. Again
January 6 And The 2020 Election
CNN: ‘Their plan is to literally kill people’: Senate Democrats reveal new details about intel warnings ahead of January 6 attack
The Hill: Raffensperger to be interviewed by special counsel investigators
Opinion
The New York Times: This Is Why Trump Lies Like There’s No Tomorrow
The Washington Post: The Trump tape Cokes join history’s other dubious product placements
MSNBC: You can literally hear the moment Trump ruined his own legal defense
Washington Post: The odds of a Trump coup attempt in 2024 are dropping fast
In the States
The Hill: Alabama governor calls special session to redraw congressional districts
WSB-TV: GA’s Sec. of State wants dramatically stiffer penalties for those who tamper with election machines
News10: Two election laws bills await Hochul’s signature
Carolina Journal: Elections bill could have major impact on federal felon voting case
