Guest: Univ. of KY election law prof Joshua A. Douglas; Also: Listeners respond after yesterday's call-in show on Russia's war on Ukraine...
It's always darling when Republicans pretend to oppose "activist judges" who "legislate from the bench." As discussed on today's BradCast, the new Republican majority on North Carolina's Supreme Court is now showing how it's done! [Audio link to full show is posted below this summary.]
We have been warning for some months about the Moore v. Harper case recently heard at the U.S. Supreme Court. The corrupt, stolen and packed far-right Court majority's opinion could finally establish the legitimacy a once-fringe, still-ridiculous Constitutional concept called the Independent State Legislature theory. According to the theory suddenly being pushed hard by Republicans, State Legislatures --- and only State Legislatures (not Governors, Secretaries of State, State Courts, State Constitutions nor even ballot initiatives adopted by voters) --- may create election rules and laws in each state. If a SCOTUS majority agrees with this radical, previously-obscure reading of the Constitution, decades, even centuries, of American election law could be tossed out the window. The theory even holds, according to critics, that state legislatures would simply be able to choose whichever slate of Presidential electors they like, no matter who the state's voters may have chosen.
Moore v. Harper is actually a partisan gerrymandering case out of North Carolina, where its State Supreme Court last year found the new Congressional and legislative maps drawn by the NC Republican legislature to be in violation of the state's Constitution which, they determined, prohibits partisan gerrymandering. In last November's elections, however, two Republicans won their elections for the state's high court, flipping it from a 4 to 3 Dem-leaning majority to a 5 to 2 Republican court.
After the new, rightwing majority was seated last month, they decided to rehear the Moore v. Harper case despite, as the two dissenting Democratic Justices decried, the fact that doing so would be a "radical break with 205 years of history" and that "Nothing has changed since we rendered our opinion in this case" last year.
"The only thing that has changed is the political composition of the Court," wrote Justice Anita Earls. "Now, approximately one month since this shift, the Court has taken an extraordinary action: It is allowing rehearing without justification." Earls called the decision "an affront to the jurisprudence of this State and to the citizens it has sworn an oath to serve ‘impartially,’ ‘without favoritism to anyone or to the State.’"
In addition, the new rightwing state Justices in NC also decided to rehear the challenge to the GOP legislature's Photo ID voting restrictions which the 4 to 3 Democratic majority, just two months ago, struck down, after finding it to have been adopted with a discriminatory purpose to make it harder for minorities to vote, a violation of the state Constitution.
"This is essentially a brazen power grab by the new majority," our guest today, JOSHUA A. DOUGLAS, author and election law professor at the University of Kentucky explains. "To put this power grab in context," he recently wrote at Washington Monthly, "in the past 30 years, the North Carolina Supreme Court had agreed to rehear only two cases out of the 214 requests it had received. ... The court has now doubled the number of rehearing grants in just one reckless day."
"It's unusual for any court to act this quickly and this brazenly," Douglas tells me. "This really is unprecedented for the North Carolina court, but, as far as I'm aware of, courts in general." He goes on to describe the court's behavior as "dangerous", "blatantly partisan", and "politics all the way down."
"This is why it's dangerous to have elected judges with a party label," he argues. "Everyone knows what's going on here. Everyone knows that the court was 4-3 in favor of Democrats, its 5-2 in favor of Republicans now, because Republicans won two of those seats."
"This idea of precedent, that the law builds upon, is being thrown out when we just think of judges as politicians in robes, explicitly. Even if people had thought this was going on before, I think judges themselves felt a little bit cabined by this idea that they're not just politicians in robes and political activists. But that idea is now thrown out the window."
So, what does this now mean for the version of Moore v. Harper currently at the Supreme Court, where it has already been heard? Will it be mooted out by a new decision in NC or will an opinion be issued on the Independent State Legislature theory anyway? If not, Republicans will almost certainly find another case to place the wacko ISL theory before the court. But a new case, Douglas warns, would likely result in a SCOTUS opinion issued smack dab in the middle of the 2024 election cycle, potentially unleashing complete chaos in the bargain.
NEXT UP TODAY, we heard from a lot of listeners following yesterday's call-in program in which I opened up the phone lines primarily to those who disagreed with my position that the U.S. should continue to support sovereign Ukraine's self-defense against Russia, its imperialist aggressor neighbor whose brutal, unlawful invasion began just over one year ago. Democracy v. autocracy is at stake, as I argued yesterday, despite Vladimir Putin's repeated threats to unleash nuclear weapons. We had a number of callers --- sadly, presumably from the Left --- who have been wildly misinformed and disinformed by a number of media outlets that have, for years, been pushing Kremlin propaganda (sometimes knowingly, sometimes not.)
That said, after yesterday's show, I received a ton of comments --- probably 8, 9, or 10 to 1 --- in favor of my position against the bulk of our callers. To be fair, I had invited and prioritized those who disagreed with my position, in hopes of an enlightening discussion/debate on the issues. But, so as to not give the entirely wrong impression of our overall listeners, I thought it helpful to share some of the comments in response to yesterday's show --- the majority of which were supportive of my position on Ukraine --- on air today.
FINALLY, we're joined by Desi Doyen for our latest Green News Report, as "bizarro" weather continues across much of the nation now that we've broken the climate; and as Republicans amusingly begin to discover --- in light of the toxic chemical train derailment in East Palestine, Ohio which Fox "News" has instructed them to be furious about --- that hey, regulations actually protect the public against this sort of thing! Who knew?...
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