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The Biden administration urged the Supreme Court on Wednesday to overturn a constitutional theory pushed by former President Donald Trump’s supporters in an effort to overturn the 2020 presidential election and allow it to be changed. in the coming elections.
The release after hours from the Department of Justice for the purpose of the so-called law of the special council, in the matter in the case, will be less than two weeks from the elections of the month of November and before December 7th the arguments for the dispute.
Wednesday marked a deadline for “friendship of the court of information” from critics of the concept.
Proponents of the theory argue that state legislatures should be able to make laws in state elections without being held back by state constitutions through interpretation by state courts, by or functions of the commissions created under the constitutional amendments of the state.
Voting rights groups fear that if the court sides with the doctrine’s supporters, it could force state lawmakers to act passively when it comes to legislation. to state elections – and to change the nature of the electoral law.
Attorney General Elizabeth Prelogar, relying on precedent to appeal to more powerful court members, argued in the new filing that “more than two hundred years of practice that assert that state laws are subject to state law obligations” when they exercise their authority under the authority. the Constitution.
Democrats are hoping that even before the high court decides the debate this term, Republicans will mention the concept in legal challenges around the midterms.
Marc Elias, an election activist and senior Democratic attorney, said he expects Republicans to rely on the concept in election challenges in the coming weeks.
“We’ve seen a significant increase in litigation from Republicans heading into the midterm elections, and many of these lawsuits are related to the claims of the Special Counsel,” he said in a statement. in an interview with CNN on Wednesday night.
Saying that the new Republicans are “obsessed with the lawsuit,” Elias said the program “has no place in our election law.”
“It is important for the court to slam the door on this fringe theory and recognize the important role of judicial review in our democratic system,” Elias said.
On the face of it, the case before the justices represents a redistricting dispute from North Carolina over a lower court decision that overturned a congressional map by government. The court threw out the map – saying it was biased – and replaced it with a map the court drew that was more favorable to Democrats.
Republican lawmakers from North Carolina are now asking the justices to reverse the lower court. They point to the Constitution’s Electoral Schedule which states that laws governing the “conduct of elections” must be established in each legislature.
Under the theory, they argue, state legislatures should be able to make laws without interference from the courts.
In the past, the legislatures have set the rules for conducting the election, but they have not acted individually or with the final word. Processes are regulated under the supervision of election administrators and state courts.
But a strict reading of the independent legislature theory says that state courts, when it comes to federal elections, should stay out of it.
A majority of the North Carolina Supreme Court, in ruling against the legislators, held that legislators do not have unlimited power to draw electoral maps. The federal court agreed that the zoning should initially be left to the county but said it must be done “in accordance with the Constitution.”
Republican lawmakers appealed to the U.S. Supreme Court, arguing in court papers that “the text of the Constitution adequately answers the question presented in this case.” The Elections Clause provides “clear language” regarding the procedures for state elections and should be clarified by written laws.
Attorney John Eastman, who served as a key architect of the push to overturn the election results for Trump, has filed an amicus brief asking the justices to take up the motion, despite the majority of the term is dormant until after the 2020 election. Attorneys for the Republican National Committee pushed back against some of Eastman’s arguments, but they, too, want the justices to remove version of theory.
Other commentators oppose the theory.
Retired Republican judge J. Michael Luttig serves as a consultant to the voting rights group, for example. Many other artists – including retired Judge Thomas Griffith, Sen. former Missouri State Attorney John Danforth, former Deputy Attorney General Larry Thompson, and others – weighed in with a colleague of the short court who supported the parties.
In an amicus brief, they agreed that the Supreme Court case may not apply to post-election activities for presidential voters. But they feared that if the Supreme Court emboldened lawmakers in election law cases, it could open the door to new challenges to post-election results.
If the Supreme Court does not decide the issue now, they added, there could be more lawsuits in 2024 related to the chaos after the 2020 election.
Richard Bernstein, a conservative attorney who wrote the brief, said that if the court approves the “extensive reading” of the Electoral Roll, the nation will be hit by waves of federal election litigation. government every two years.
“If the Supreme Court overrules the state courts in this case, the justices will be able to encourage state legislatures and losing candidates to try to steal future elections,” he said. he said.
Lawyers for the Brennan Center for Law at New York University School of Law called the Congressional concept “antiquated” in a brief supporting voting rights groups. and argued that hundreds of election laws and policies could be undermined if the court. to take the full reading of the doctrine. The laws cover diverse topics such as delimitation, voter registration, polling place, standards for testing voting equipment, chain of custody and vote counting procedures.
“To avoid this upheaval, the Court simply needs to uphold the authority in all 50 states for the past 200 years and uphold the decision below,” the brief said.
In addition, the former Governor of California Republican. Arnold Schwarzenegger – a longtime advocate of what he calls “the negative effects of side hustles” – rejected the concept. His attorneys said the motion “will upset this Court’s long-standing practice of upholding the checks and balances of States exercising their constitutional power of congressional redistricting — through election popular vote, gubernatorial vetoes, and special zoning commissions.”
On Twitter, he was even more vocal.
“You should consider SCOTUS,” he said wrote. “But my unfiltered thoughts: Honestly, this theory is nuts.”
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