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North Carolina elects its state Supreme Court judges. And in the 2022 midterms, Republicans took over the court. That was tantalizing to the GOP, which keeps passing measures to help it reliably win elections even in a narrowly-divided state. But this week, the new GOP-dominated court issued a shocker: It agreed to rehear recently-decided cases on controversial voter ID and gerrymandering laws.
That seeming power grab could have a direct impact not only on voting rights in North Carolina, but also on the Moore v Harper case in the US Supreme Court. I wrote about Moore in December, and the nakedly political genesis of its “independent state legislatures” theory that could do more damage to democracy than anything since Donald Trump’s attempted coup. (It’s the one right-wing legal scholars cooked up to say that only state legislatures—not governors, or even courts—have a role in determining how states run federal elections. If the Court goes with that doctrine, the implications for election mayhem are potentially terrifying.)
I called up UCLA law professor and election expert Rick Hasen, who’s been writing about North Carolina’s new GOP court and Moore v Harper. Our chat has been edited for length.
So, Rick. The North Carolina Supreme Court strikes down GOP-backed moves on voter ID and gerrymandering. Republicans take over the court, and all of a sudden it’s time to rehear those cases. Is that as nefarious as it sounds?
It’s not surprising that the Republican Supreme Court majority disagrees with the former Democratic majority. Unfortunately, in these voting cases, the judges often break down on party lines. So the fact that they have a different view is not nefarious at all.
That said, rehearing in the case so soon after the ruling… that looks quite political. Then again, the Democrats rushed out their orders before the end of their terms so that they could decide them before they were done. And it does create a much more partisan appearance than, say, if the court had waited a couple of years for new voter ID or gerrymandering cases and then overruled the old ones. So it’s kind of a political process, which unfortunately, is not how we like to think about the judiciary.
The dissent pointed out that since 1993, the court has granted precisely two rehearings out of 214 petitions. So this seems like an outlier.
Rehearing is definitely rare. They have to understand that in election cases, you don’t want to change the rules right before the election. So for example, the Republican majority on the court may now say that partisan gerrymandering is just fine. You want them to say it sooner so that they can redraw the lines in time for people to run for election. So I can understand the desire to do the districting and the voter ID stuff well before the election. But again, it creates an appearance that politics is playing a big, big role in these decisions.
You raise the specter that this case could moot Moore v Harper in the Supreme Court. And, you said, be careful what you wish for.
Ordinarily, my view is that voting rights lawyers want to stay out of the Supreme Court whenever possible, because they’re generally hostile to expansive readings of voting rights. They’re hostile to protecting voters under the Voting Rights Act, they’re very protective of states and their ability to discriminate. But this case is a little different. I’m not thrilled with the Supreme Court deciding this independent state legislature theory. I’m scared about what they might do. But if they’re going to decide it, better for them to do it when it’s not in the context of a presidential election when the stakes are incredibly high and the legitimacy of the court and an election could be at stake. That could be a crisis.
The skeptical political take on this whole situation is that Republicans in North Carolina are sick of competing in elections, and now that the GOP controls the court, they’re revisiting this case.
What I would say is that to many on the left, this looks like a Republican power grab. But to many on the right, what the state Supreme Court did when Democrats controlled it looked like a power grab. And if we’re gonna have elected judges deciding cases, these kinds of clashes are inevitable. This one just looks a little more unseemly because of the timing issue, and kind of the quick flip of the court.
So what’s the best outcome here, in your view, for democracy?
What I’d like to see is congressional legislation that polices gerrymandering and state legislation too. It doesn’t include North Carolina, but you have redistricting commissions in California, Arizona and Michigan, and a fair districting amendment that’s supposed to limit redistricting shenanigans in Florida. So there are lots of ways to police this stuff. As for what it will mean for the US Supreme Court’s case, I don’t think we know yet.
T.W.I.S.™ Notes
For a minute there it seemed like things had gone eerily quiet around all the venues where Donald Trump or his cronies could be prosecuted for trying to overturn a state’s election results. Or interfering in the peaceful transfer of power. Or mishandling of defense documents and obstruction. Or even orchestrating hush-money payments to a porn star. But This Week in Subpoenas never lets you down!
– Talkin’ to the Mike
The coup attempt’s star witness has finally been pulled in to testify under oath. Special Counsel Jack Smith subpoenaed former Veep Mike Pence to answer questions in the probe into the attempted coup and insurrection. That all apparently came after months-long talks over voluntary testimony failed.
Pence is a key witness because he knows a lot about Trump’s statements, state of mind, and actions leading up to Jan. 6. Remember, Pence was the target of a vicious campaign by Trump to get him to participate in the plot to reject electors from states Joe Biden won so that Republicans in those states could replace them with Trump electors (et voilà, le coup!)
It’s unclear whether Pence will try (or has tried; we don’t know exactly when he was subpoenaed) to use executive privilege claims to dodge certain questions or avoid testifying entirely. Trump will certainly try to assert privilege to keep Pence quiet. But that could all be complicated by the fact that Pence has already talked about many of his key conversations with Trump in newspapers and in his book.
Meanwhile, Smith subpoenaed former national security advisor Robert O’Brien, too. And he’s already claimed executive privilege.
– The Pom before the Stormy
Did a former Manhattan prosecutor’s tell-all book help Donald Trump slither out of potential charges for paying off Stormy Daniels? A lot of experts tell VICE’s Greg Walters that Mark Pomerantz’s new book detailing the Manhattan DA’s deliberations over charging Trump could provide Trump’s lawyers with defenses at trial, or even make it less likely that Manhattan DA Alvin Bragg will pursue charges at all.
Pomerantz famously quit the Manhattan DA’s office after Bragg declined to prosecute Trump for manipulating real estate valuations to defraud insurance companies, banks, and taxpayers. The alleged scheme is at the center of a $250 million lawsuit against Trump and his family brought by NY AG Leticia James. Now Bragg has reportedly circled back to Trump’s $130,000 hush-money payment to Daniels as a potential crime, and the legal community is so annoyed by the apparent ethical breach that Pomerantz could face sanctions. Pomerantz says the facts of that case are well-known and that his book doesn’t change that.
– (jazzhands) DEFAME!
I wanna fib forever! (and so on…) Voting machine companies Dominion Voting Systems and Smartmatic USA have defamation lawsuits flying every which way. The companies allege that 2020 “stolen election” lies and conspiracy theories did massive damage to their businesses. This week, a judge in Delaware denied Newsmax’s attempt to dismiss Smartmatic’s defamation suit against it, saying it’s probable Newsmax knowingly spread false conspiracies, including the one about Smartmatic’s (invented) ties to former Venezuelan dictator Hugo Chavez. Smartmatic has a similar case against Fox News, and so does Dominion. Dominion’s case against Fox is set to start in April.
– Chad about coup
Former Trump-era acting Homeland Security Secretary and alpha-Chad Chad Wolf was questioned in the DOJ probe into the 2021 coup attempt. Wolf was reportedly questioned under oath by FBI agents and representatives of Special Counsel Jack Smith several weeks ago. The interview went four hours and took place away from the grand jury Smith is using to investigate the coup.
Here’s a refresher! It was Wolf who—according to the DHS IG—altered and held back an intelligence report on Russian interference in the 2020 election. A whistleblower told the IG Wolf complained the report “made the president (Trump) look bad.”
– Creep mission
An Iowa man who was sentenced to one month in prison for his role in the Jan. 6 riot was arrested and charged for allegedly secretly recording a woman while she was undressed at a local tanning salon. Daryl Johnson was arrested last month in Clear Lake, Iowa, after a complaint he used his cell phone to record a woman without her consent. He faces up to two years if convicted. After Jan. 6, he posted on social media that the insurrection was the start of a “revolution” and that “hangings” would follow.
The Tina Files
Less than one month to go until the scheduled start of Tina Peters’ trial. The former Mesa County clerk is about to face seven felony counts of fraud, impersonation, and election tampering. Just before that, Peters faces another trial for allegedly illegally recording a court proceeding on her iPad and then trying to kick a cop when he came to confiscate it.
Peters is using this pre-trial time productively! This week she suggested to extremist Joe Oltmann that the government murdered the family members of two former staffers who are set to testify against her. Peters falsely told Oltmann on his podcast that the brothers of Belinda Knisely and Sandra Brown were both killed in unsolved hit-and-run car accidents. In fact, neither accidents that killed the men were hit-and-runs. When Oltmann said the men were killed to force the staffers’ testimony, Peters said, “that’s right.”
BTW, definitely follow Anne Landman’s blog out of Western Colorado for all the day-to-day Tina deets. And speaking of Oltmann, has he been committing voter fraud?
“I know everyone thinks Republicans aren’t funny. But if you get a bunch of us together, we can be a real riot.” — GOP Rep. Nancy Mace, at a press dinner this week in Washington.
Takeover’ing stock — Is the Georgia GOP’s law allowing them to effectively take over local election bodies they don’t like even workable? A bipartisan review panel is recommending a softer approach than the one many Republicans envisioned, after it concluded that Fulton County officials had made significant strides in improving election procedures. Many elections experts worried Georgia’s 2021 election law would lead to Republicans using a review process to replace and take control of jurisdictions like Fulton. Stay tuned.
County jerk and recorder — David Stevens, the conspiracist Recorder of Cochise County, Ariz., is using hand counts and state grants orchestrated by his buddy Mark Finchem to turn the county into a “laboratory” for actualizing election denialism. Stevens was the mastermind of an illegal plan to hand-count all 50,000 midterm votes in the county, despite his complete lack of elections experience. And he’s not done yet.
Bundles of fear — Elsewhere in Arizona, a 66-year-old grandmother and former mayor of tiny San Luis spent a month in jail for collecting four ballots in the 2020 election. Giullermina Fuentes was one of the first people prosecuted under the Ariz. GOP’s 2016 voting restrictions. Read about how her arrest and incarceration has instilled a fear of voting in this overwhelmingly Latino town.
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