Neal Katyal throws Justice Clarence Thomas' own words back in his face during Supreme Court hearing

[mahina]

26. agreed. here are some

Supreme court audio https://www.supremecourt.gov/oral_arguments/audio/2022/21-1271

Supreme court transcrpt avail there too

https://www.americanprogress.org/article/supreme-court-oral-arguments-in-moore-v-harper-discredit-election-theory-that-could-undermine-democracy/

Today, the U.S. Supreme Court heard oral arguments* in Moore v. Harper, a case that could strike a major blow to free and fair elections. At least three justices in the court’s extreme conservative majority signaled their openness to adopting a discredited theory—the independent state legislature (ISL) theory—that could hand partisan state legislators potentially limitless power to manipulate election rules and draw unfair congressional districts. This theory—which even many conservative leaders deem meritless—could upend the nation’s system of checks and balances and undermine the emergence of a truly representative democracy. The Supreme Court would be wise to reject any form of the ISL theory when it issues its decision in this case next year.

As discussed in a recent Center for American Progress report and explored in today’s oral arguments, the ISL theory relies on a recklessly narrow reading of two clauses in the U.S. Constitution to assert that state legislatures—and only state legislatures—have the authority to set election related rules and draw congressional maps. Among others, the Claremont Institute’s John Eastman—the discredited lawyer to former President Donald Trump—is pushing this argument. Eastman’s amicus brief resembles those filed by several interconnected, right-wing organizations that have led an ongoing effort to restrict voting rights and sabotage valid election results.

Michael Sozan

Today’s arguments and numerous amicus briefs warn of the danger the ISL theory poses to free and fair elections
Today, counsel for the petitioners David Thompson argued unpersuasively that the high court should adopt the ISL theory and send this case back to North Carolina, where legislators should have sole authority to draw congressional maps, unfettered by the state’s constitution or courts. In trying to remain consistent with Supreme Court precedent, the petitioners’ counsel admitted that state legislatures are subject to various state-constitutional procedural requirements but argued that courts cannot set substantive constraints, as he said the North Carolina courts did.

The respondents’ attorneys, Neal Katyal and Donald Verrilli, both former U.S. solicitors general, alongside current Solicitor General Elizabeth Prelogar, cogently argued that the ISL theory would trample on well-established legal precedent and constitutional principles, as described in the overwhelming preponderance of the 69 amicus briefs filed in Moore v. Harper. Counsels explained in these briefs that the standard interpretation of “legislature” over several centuries broadly includes the state’s entire lawmaking process—not only state courts and the parameters of state constitutions, but also the governor’s signature or veto. As counsels stated, the ISL theory could threaten free and fair elections in several ways, including by stopping courts, constitutions, and governors from protecting voters from politicians; making election administration exceptionally chaotic; and pushing a massive wave of litigation into the federal courts.

These arguments echoed the conclusions of a slew of high-profile conservatives who filed amicus briefs arguing against the ISL theory, including state court chief justices, former judges, prominent attorneys, former members of Congress, a co-founder of the Federalist Society, and former U.S. solicitors general. In a recent op-ed published in The Atlantic, conservative stalwart Michael Luttig—a former federal circuit judge who co-wrote a key brief in this case—starkly warned that Moore v. Harper is “the most important case for American democracy in the almost two and a half centuries since America’s founding.” In another op-ed, published in CNN, Luttig wrote that he remains concerned that the ISL theory will be a central part of a future attempt by conservative extremists to steal elections.