Celebrating Moore v. Harper on the Fourth 2023

 

Given the din of political and cultural strife marking our times, the Fourth of July 2023 is the perfect occasion to revel in a rare triumph of constitutional fidelity, one George Washington, John Marshall and James Madison would surely recognize. And while this development puts a massive hole in the keel of the 2022 Republican Party of Texas platform and spoils dreams of Republicans who believe Joe Biden is an “illegitimately elected” president (to quote the GOP platform), those who still believe in such founding principles as separation of powers and judicial review have much to celebrate. 

Especially worthy of this year's Independence Day fireworks: Progressives and conservatives on the Supreme Court of the United States coming together last week to consign to the trash heap of ideological claptrap the so-called "independent state legislature theory," a crackpot scheme that argues state courts have limited say-so over certain ill-defined election-oriented actions of state legislatures, even if whatever election skullduggery state legislators pass into law conflicts with state and federal constitutions. 

“It would be impossible to overstate the enormity of yesterday's seminal decision in Moore v. Harper," declared retired U.S. appeals Judge Michael Luttig, one of the few authentic conservative jurists still speaking out. "Not only is it now the single most important constitutional case for American Democracy since the nation's founding almost 250 years ago, it is also now one of the most important constitutional cases for representative government in America. Today, it takes its deserved place in the pantheon of great Supreme Court cases that give meaning to the Constitution's genius of a separation of powers – among the national Legislature, Executive and Judiciary – and also between the national government and the governments of the respective 50 states of the United States."

No doubt Judge Luttig’s enthusiasm has been tempered by decisions since Moore v. Harper, including the high court's embarrassing decision that the state of Colorado cannot legally enforce a state anti-discrimination law against a Christian website designer who balked at creating wedding websites for same-sex couples. Only now is the public learning that the supposedly gay man who supposedly sought the website designer’s services never requested such services, that he has been married to a woman for 15 years and that he’s a website designer himself. If so … oops.

The high court's 6-3 decision in Moore v. Harper is more bad news for Republican Texas Attorney General Ken Paxton, lately suspended from duty pending an upcoming impeachment trial in the Texas Senate over corruption charges but in December 2020 author (supposedly) of a Trump-driven lawsuit rooted in independent state legislature theory mechanics. Paxton's suit, which leapfrogged to the Supreme Court, sought to cancel out the votes of fellow citizens in four battleground states because election laws of state legislatures in Michigan, Pennsylvania, Georgia and Wisconsin weren't strictly followed. The reason they weren't strictly followed is because the nation was gripped by a global pandemic that killed more than a million Americans; state courts, governors and other state officials, in full crisis mode, made adjustments in election protocols so citizens could vote without risking their lives.

The nation’s highest court smartly sent Paxton and his preposterous lawsuit packing without a hearing.

Ironically, the state of Texas was guilty of the very sin Paxton alleged other states were doing. Key difference: Texas overwhelmingly supported President Trump's reelection while the other four states fell into the Biden column once all votes were counted. Because of widespread pandemic fears, Texas Gov. Greg Abbott correctly extended early voting in the 2020 general election to keep Texas voters from bunching up in polling places and contaminating one another. Texas Republican firebrands sued to kill this executive measure, but the Republican-stocked Texas Supreme Court in an Oct. 7, 2020, decision sided with the Republican governor.

Under the independent state legislature theory, the state's highest court and arguably the governor would or could not have acted without approval by the biennial legislature. The Texas Legislature's laws under such a theory would have ideally remained intact in all of their unchecked legislative glory, no matter how the crisis endangered citizens and constituents.

Supporters of this fringe theory argue that their concept of independent state legislature power in electoral matters is rooted in constitutional text, Article I, Section 4, Clause 1: “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.” Yet this theory defies logic: For one thing, it would be ridiculous for a state legislature to be permitted to violate the state constitution that created it. And history indicates the Framers were wary of state lawmakers to the degree they included in the U.S. Constitution the Elections Clause to ensure Congress retained final power to set rules for federal elections.

"Marbury v. Madison famously proclaimed this court’s authority to invalidate laws that violate the Federal Constitution," U.S. Supreme Court Chief Justice John Roberts wrote for the majority opinion pulling the plug on independent state legislative theory. "But Marbury did not invent the concept of judicial review. State courts had already begun to impose restraints on state legislatures, even before the Constitutional Convention, and the practice continued to mature during the founding era. James Madison extolled judicial review as one of the key virtues of a constitutional system, and the concept of judicial review was so entrenched by the time the court decided Marbury that Chief Justice Marshall referred to it as one of society’s 'fundamental principles.’”

The Moore v. Harper ruling, and by a Republican-dominated court no less, is also bad news for fierce partisans happy to set aside, during the likely 2024 rematch between Biden and Trump, state and federal constitutions that they supposedly cherish and that many as public servants have sworn to uphold. One concern was that, if Trump again lost key battleground states, state legislatures under his thumb could disregard the election returns and expand upon the 2020 scheme of electing phony electors to cast ballots in the Electoral College – and without interference by meddlesome courts reviewing and scrutinizing such actions against the texts of their own laws and constitutions.

Forget January 6. One can imagine riots in the streets and at state capitols if state legislatures were allowed to ignore the will of the people, even if citizens were acting legitimately through the courts as a last resort. Such pursuits, if pursued with even less regard for constitutional integrity than last time, might ultimately contribute to destruction of the Electoral College so many Trump populists loudly championed in 2016 when the votes went their way – and then tried to manipulate in 2020 through the independent state legislature theory when the votes didn’t go their way.

Regarding disputes by Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, Thomas’ dissent towers as the most convoluted and most desperate, pretty well confirming that his reputation as the court’s most fervent originalist is now a charade, lost amid his wife’s equally fervent post-election efforts to overthrow the presidential election through such plots as the independent state legislature theory. It also scuttles the much-vaunted constitutional expertise of U.S. Sen. Ted Cruz, the Texas lawmaker who volunteered to argue before the U.S. Supreme Court Paxton’s absurd 2020 lawsuit which, as a May 18, 2022, complaint about Cruz before the State Bar of Texas argues, would "disenfranchise over 20 million voters on factual and legal assertions that lacked any foundation and that state and lower federal courts had already uniformly rejected." The complaint notes that as fellow senators went into hiding as insurrectionists violently seized the U.S. Capitol on January 6, Cruz incredibly found time to dispatch a fundraising note: “I’m leading the fight to reject electors from key states unless there is an emergency audit of the election results. Will you stand with me?”

Judge Luttig’s optimism over Moore v. Harper suggests informed citizens anxious about Republican efforts to scuttle constitutional checks and balances can breathe easy and enjoy the fireworks this Fourth. Still, one can’t ignore the lasting damage the Roberts court has done to democracy through such decisions as the corrupting Citizens United v. FEC opinion (2010) and Shelby v. Holder (2013), the latter of which shelved Department of Justice scrutiny over even the most insignificant-seeming electoral changes and tweaks in states with historically dismal voting rights records. That opinion ironically ensured an avalanche of court litigation over disputed election law.

One must remember, too, that a third or more of us by now are unmoored from most founding principles and are fine with yet other undemocratic schemes discussed in the final desperate days of the Trump presidency, including subpoenaing ballot boxes in battleground states and even declaring martial law – something Texas right-wingers ironically suspected, without justification, that Trump’s hated African-American predecessor would attempt in 2015. Whether your brand of patriotism leans right, left or down the middle, our tumultuous past proves the struggle against those who would sink this wobbly experiment in democracy never ends.

Bill Whitaker spent more than 45 years as a reporter, editor and columnist in daily Texas journalism, including a dozen years as Waco Tribune-Herald opinion editor.

Pondering the reality of locking him up

Less than three months after former President Trump began his 2024 reelection bid with a campaign rally here in Waco, he found himself under two indictments – one for falsifying records to hide from voters an extra-marital fling with a porn star, the other a needless, soon-to-be costly battle he picked with the National Archives when, in defiance of long-established law, he boxed up and took with him at the end of his embattled presidency hundreds of classified documents, including those showing just how vulnerable the United States of America is or isn't to some sort of attack.

This is the “patriot” leading the pack for the 2024 Republican Party presidential nomination. That should indicate to any responsible citizen how unmoored the party is from not just reality but matters of national security that once were this party's forte. Don't complain about national security in regard to our border policy and then look away from Trump's recklessness with our classified national security documents. This latter indictment is far more serious than Trump's bid to deceive voters over secret payoffs to sexual partners.

If that’s not enough, more legal problems loom, including whatever charges arise from special counsel Jack Smith’s investigation into Trump’s role in what clearly constituted an insurrection on January 6, 2021.

By now, most discerning citizens who value facts over rhetoric have read the June 8 federal indictment for themselves. It offers detailed allegations which prosecutors must of course prove before a jury of Trump's peers in the ruby-red state of Florida before a Trump-biased judge (at least judging from an earlier slap-down of this judge by a three-judge panel of the 11th Court of Appeals). It's an amazing document if true, demonstrating the former president's increasing resistance to any authority beyond his own, even the deferential but persistent officials of the National Archives. These folks were presumably only trying to follow the law set by Congress for them and former presidents.

The situation reminds one of an overly indulgent teacher trying to press an obstinate child to turn in his homework when due or at least soon after. Trump, 77, was reluctant to turn over classified documents that he not only coveted for reasons thus far unknown but left unsecured at two of his key properties, each of which has welcomed tens of thousands of high-dollar visitors from far and near. In resisting authorities, the former president reportedly jumped back and forth between three key strategies: stonewalling, lying or stonewalling and lying.

At various points, Trump allegedly deceived his own attorneys, which may explain why he has problems securing legal counsel these days. What attorney wants to get famously thrown under the proverbial bus by an undisciplined, high-profile client? Reporting by the Washington Post indicates he got into this latest imbroglio by heeding not his attorneys – some of whom tried to patch up differences between the government and the former president – but Judicial Watch gadfly Tom Fitton, who reportedly convinced Trump that he could legally keep the classified documents. Fitton, 55, who is not an attorney, could arguably be described as a right-wing rumormonger; the group he spearheads could reasonably be labeled anti-government, at least when Democrats are in charge. It’s just enough to make you wonder about all those people Trump fired with such gusto on “The Apprentice” – and those he kept on.

The indictment makes clear two other points: First, the federal government has evidence that Trump showed some of these classified documents to visitors who lacked security clearance – possibly just to impress them and shore up a wounded post-presidency ego; second, Trump knew the importance of securing classified documents, proven by the remarks he repeatedly made during the 2016 election when former Secretary of State Hillary Clinton, Trump's opponent, was under a national heat lamp for extreme sloppiness in private emails involving matters of national security – an Achilles heel that likely contributed to her narrow election defeat amid Republican cries of “Lock her up!”

So here then is Trump involved in a mess of his making more serious than the Clinton debacle. Unlike Clinton, who cooperated by turning over thousands of emails to the FBI, Trump arguably committed graver sins by repeatedly lying to federal authorities – something you and I don't dare do without risking our freedom. Indeed, in reading the indictment, one realizes Trump believes he truly is above the laws the rest of us must obey, constituting the very sort of entitled, elitist and arrogant oligarch that John Adams – a real patriot, by the way – feared might one day prevail to the detriment of the republic.

To quote Adams from his provocative if obscure “Discourses on Davila,” penned in 1790 when he served as the nation’s 55-year-old first-ever vice president under George Washington and pondered the sort of nobility that might sprout in a young, unsteady democracy without monarchs and nobility descended from royal bloodlines: “Riches force the opinion on man that he is the object of the congratulations of others … His imagination expands and his heart dilates at these charming illusions.” Adams understood that while a nobleman – or, by extension, one who assumes its guise – “excites the indignation of many, and the envy of more, it still attracts the attention of the world.”

Yet Trump’s picking a fight with the National Archives, the FBI and grand jurors should leave any rational citizen concerned. Does a twice-impeached president forever tied to efforts to subvert the peaceful transfer of power in America believe this latest fight is prudent and in his self-interest when he so lusts to return to power? Does he not risk alienating at least some core supporters through careless regard for our nation’s security? What must this say of his judgment as a presidential candidate or a president? Is this the fight any smart business entrepreneur would wage? Or has Trump been manipulated by the likes of Tom Fitton? Is it then any wonder President Trump was convinced of a wild scheme peddled by renegade law professor John Eastman and others to invalidate 2020 election returns to his benefit?

No less than the fiercely right-wing Wall Street Journal editorial board, which has long functioned as a reliable apologist for Trump, acknowledged hard realities in a damning June 13 edition: "If Mr. Trump is the GOP nominee, he is unlikely to defeat Joe Biden. But if he did win, the document fiasco is what a second term would be like. He wouldn’t be able to deliver the conservative policy victories that Republicans want because he can’t control himself. He’d be preoccupied with grievance and what he calls ‘retribution.’ The best people won’t work for him because they see how he mistreated so many loyalists in the first term."

Yet arguably risking our national security matters little to latter-day Republicans, most of whom continue to support Trump's long march toward the presidential nomination despite indisputable evidence of his attempting to overthrow a presidential election he lost, his public appeal to suspend the U.S. Constitution in his favor and presidential transgressions during his tenure that would have shocked earlier generations of Americans. For those of us who identify more closely with the conservatism of our father and grandfathers, there is great resonance in the words of retired U.S. District Judge Michael Luttig in a June 25 New York Times column: “No assemblage of politicians except the Republicans would ever conceive of running for the American presidency by running against the Constitution and the rule of law. But that’s exactly what they’re planning.”

As the retired judge ruled in the court of public opinion, "Republicans are as responsible as Mr. Trump for this month’s indictment — and will be as responsible for any indictment and prosecution of him for Jan. 6.”

If I were a Trump 2024 campaign official, or even a follower who subscribes to his grievance-filled populism, I’d be horrified and livid at not only the former president’s refusal to cooperate over sensitive classified documents but his vow to appoint a special prosecutor upon reelection to "go after" Biden, “the most corrupt president in the history of the USA,” and “the entire Biden crime family.” I’d worry about revival of public interest in the mostly forgotten Mueller report regarding the Trump campaign’s ties to Russian intrigue. No, it doesn’t prove Trump “colluded” with the Russian government, but it makes abundantly clear to the most obtuse citizen that President Putin worked overtime to elect Trump – and that while hardly co-conspirators in a strictly legal sense, Trump and his family openly and warmly welcomed Russian help in the U.S. presidential race of 2016.

But I'm not a Trump follower, never have been, even as I've tried in countless interviews to understand his enduring appeal. Year after year, I'm mystified at citizens such as those in Washington on June 24 attending the Faith & Freedom Coalition, a group whose creaky traveling bandwagon of opportunistic blasphemers and political agitators occasionally rolls through my town of Waco, here to question the faith and patriotism and morals of others. I'm mystified at those who fervently claim to be Christians, fervently claim to be conservatives, fervently claim to cherish Jesus' teachings, fervently claim to value character and family values, yet demonstrate every sordid quality of membership in a rigorous cult of personality, ignoring in themselves the sins they see in the world about them. Trump, charismatic showman as ever, lovingly and passionately played his part as the Christ-like martyr during his appearance before this national assemblage. "Every time the radical-left Democrats, Marxists, communists and fascists indict me, I consider it a great badge of courage," he told the faithful to unrestrained cheers, applause, whistles and screams of joy. "I'm being indicted for you, and I believe 'you' is more than 200 million people that love our country. They're out there and they love our country."

Lock him up? Is it really coming to that?

As President Ford and, to a degree, disgraced President Nixon arguably understood nearly 50 years ago, Americans recoil at the notion of imprisoning former presidents and political opponents. It conjures up not a democratic republic grounded in the peaceful transfer of power but a banana republic with the stench of rebellion, tyranny and corruption. After Trump left power in January 2021, many of us – like or dislike him – hoped he would simply do what former presidents in America do: find some favorite causes benefiting the greater good to champion in retirement. But how is a constitutional republic to deal with one whose favorite cause is himself and who demonstrates such a willingness to turn our divided nation into a sprawling banana republic?

Bill Whitaker spent more than 45 years as a reporter, editor and columnist in daily Texas journalism, including a dozen years as Waco Tribune-Herald opinion editor. He is a member of the Tribune-Herald Board of Contributors.