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Notes -
I want a vice presidential debate top level post.
So JD Vance sounded pretty good here overall. If you ask me, both speakers were miles ahead of their presidential candidate counterparts, which is sad. There is probably a lot that can be read from the debate, but I did want to discuss a couple moments making waves on other social media. First I will mention I was surprised to hear JD Vance support nuclear energy, and I will also mention a lot of people were probably unhappy with how he handled the gun control/mass shooting question. But back to the two I wanted to mention
The first such moment originated from a fact check:
Tim Walz responds to his statement, and then a debate moderator comes in with this:
I will cut it off there to not balloon this post. You can read the transcript here.
It seems many blue tribers saw him complaining about a fact check and seeing a win. Why would you complain about fact checking other than if you were lying? This is another example going back to Scott's post about the media rarely lying. Hey, they're temporary asylum seekers, so since they were allowed in with little hindrances to speak of, they're legal. Fact checked. This is an example of why I tend to dislike fact checking in a debate. It introduces an opportunity to use unfavorable framing on an opponent with lawyerspeak on technically true things. Let the candidates do it themselves if they want.
Next up, the January 6th and failure to concede the election:
Once again, there is more to this exchange than that. I said earlier that they had good performances, and I'll go further here and say that JD Vance had a pretty great night. I'd never heard him speak before and he sounded very well spoken, very well informed, and brought up many issues that I so dearly wished that Donald Trump would have brought up, like specifically naming the asylum system and mentioning the partial birth abortions allowed in Minnesota (I noticed Tim Walz's denial was not fact checked). That is to say, JD Vance is competent and might have won against Kamala Harris, representing a return to civil debates and "normal" politicians, despite the "weird" allegations.
But he is really dragged down on this issue. It's lame he has to defend election denial claims in the first place, and leave room for challenging more later. I know many of you have strong feelings on the truthfulness of the claims. I will say this: if someone goes and makes those claims, they shouldn't run again. That is very powerful ammo for the other side. And it's far from the only ammo. I am very disappointed with the rhetoric Trump throws around. His lashing out against Taylor Swift reads as totally pathetic. And it is sad to see someone with as much talent as JD Vance have to try to slip around all this crap coming at him, from both Tim Walz, the debate moderator, and untold amounts of unhappy people on Twitter.
Have you read Eastman’s thoughts on the election? I find it compelling that the constitution mandates state legislatures decide how to run elections and the executives in many states abrogated that power unto themselves as part of a Covid emergency action.
What’s the remedy there except to get the legislatures to explicitly endorse an election outcome?
This is a great law geeks' question. The key issue is the interpretation of the Constitutional text "as the legislature thereof may direct" (which appears in the Constitution in reference to both House elections and selection of Presidential electors). The conventional view is that this has the same meaning as "as the laws thereof may direct" - i.e. that state election laws are ordinary state laws which can be amended or abrogated in all the usual ways set out in a state constitution including gubernatorial veto, judicial review by state supreme courts, amendment by initiative and referendum and (relevant here) temporary override in an emergency properly declared by the Governor. The strong form of the conventional view is (consistently with most in-state state-law cases) there is no federal remedy in an election case unless a federal law or the federal Constitution has been violated (as happened in Bush v. Gore.
The alternative view, referred to by law geeks as the "Independent State Legislature" theory, is that "as the legislature thereof may direct" is a delegation of federal authority to the two (or one in Nebraska) houses of the State legislature that is independent of their normal legislative power stemming from the state constitution. In this view state election laws are actually delegated federal laws, amending them by initiative or abrogating them by state-court judicial review violates the federal Constitution, and it is the job of federal courts to ensure that they are followed to the letter.
As a matter of original public meaning, the conventional view is obviously correct. Gubernatorial vetoes of state election laws were routine in the founding era, and a number of states entrenched their election laws by amending their state constitutions.
In terms of how it fared at SCOTUS, the ISL theory loses 4-3 in Bush v. Gore (Rehnquist, Thomas and Scalia join a concurrence saying that ISL required a de novo review of the Florida Supreme Court's interpretation of Florida election law, the four liberals reject it, Kennedy and O'Connor don't reach the issue). A weak version of ISL loses 5-4 in a 2015 Arizona redistricting case with Scalia, Thomas and Alito joining a Roberts dissent. Roberts distinguishes between "normal" limits on state legislatures like gubernatorial vetoes and state court judicial review and a scheme like the Arizona Independent Redistricting Commission where a state amends its constitution to remove an aspect of election law from the regular legislative process altogether.
So as of 2020 the ISL theory is potentially winning, in the sense that conservative justices have tended to endorse it, and it hasn't been rejected yet by a majority-conservative court. But as a matter of law - of original public meaning of the Constitutional text, SCOTUS precedent, and long-standing practice - it is borderline-frivolous. Texas v. Pennsylvania (the last-ditch 2020 election lawsuit in which Eastman was heavily involved, designed to invoke original SCOTUS jurisdiction) was based on ISL, and SCOTUS denied it 7-2 on standing grounds (with no justices reaching the merits).
We finally see a cleanish ISL case with Moore vs Harper in 2021. The case concerns a North Carolina gerrymander, which the NC Supreme Court ruled unconstitutional on state constitutional equal protection grounds. The strong version of ISL loses 6-2 (most people report it as 6-3, but Alito dissented on mootness and didn't join the substantive part of the dissent), with the Roberts majority implying and the Kav concurrence making explicit that they do not endorse the strong form of the conventional view - the federal courts can intervene to correct an incorrect state court decision in a state-law elections case in a way in which they can't in, say, a state-law tort case.
So where does that leave the Eastman theory that the 2020 election was invalid because of improper use of emergency powers to allow easier postal voting during the pandemic? Well it puts it back to the states. "Is this use of gubernatorial emergency powers valid as a matter of the state constitution?" is exactly the sort of question state supreme courts exist to resolve. Unfortunately, some of the key swing state supreme courts punted. The one I am familiar with is Pennsylvania, where the state courts ordered the potentially invalid postal votes to be segregated, and then mooted the case when there weren't enough of them to affect the result. But had SCOTUS reached the merits Texas v. Pennsylvania, it would presumably have ruled in favour of Pennsylvania on the grounds that the appropriate remedy was in state court.
But critically, the Eastman theory wasn't the argument Trump was actually making in November and December 2020. Trump was alleging (including in all his legal filings except Texas v. Pennsylvania) that there was outcome-determining fraud, not that there was a technical procedural irregularity. If we take Trump seriously (whether or not we take him literally), we should evaluate his core claims on their merits, not replace them with different claims that are stronger. If I had been responsible for Trump's post-election litigation strategy, I would have focussed on filing ISL-based claims in a timely and procedurally regular way (in federal district Court, with the filing fee paid). But that isn't the strategy the Trump campaign used.
Incidentally, because the Pennsylvania state law question was never formally resolved, Project 2025 suggests that a Trump DOJ should force the issue by bringing criminal prosecutions against election officials on the basis that they allowed invalid votes to be cast in violation of (DOJ's interpretation of) state law, thereby violating the civil rights of the voters whose unquestionably valid votes were diluted. This is less legally outrageous than it sounds, but the incentives created would be a disaster for American democracy.
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