8 min read

A high-stakes elections case

The Supreme Court hears a case that could forever alter how American elections are run.
A high-stakes elections case

Good morning! It’s Wednesday, December 7, 2022. The 2024 elections are 699 days away.

We have a lot of news to get through this morning, from the results in Georgia to a Supreme Court case that could have sweeping consequences for election law.

Yesterday was my last day of classes for the semester, which means it’s time for final exams here at WUTP headquarters. That means I’m going to shift to putting the newsletter out on an as-needed basis for the next week or so: I’ll send out an update if there is a major news development, but otherwise the newsletter will be on a brief pause.

After finals are over, I’ll update you on what the newsletter schedule will be during the holidays. I’m sorry for the disruptions, but I hope you’ll understand as I try to finish the fall semester strong and then take a quick break before the next one. As always, I appreciate your readership and your understanding. Now, to the news:

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Four takeaways on Warnock’s win in Georgia

Sen. Raphael Warnock (D-GA) fended off a challenge from Republican former football star Herschel Walker in a runoff on Tuesday, securing his first full six-year term.

With more than 95% of precincts reporting, Warnock has taken 51.4% of the vote to Walker’s 48.6%.

Some quick takeaways:

Warnock’s win caps off a historic midterm cycle for Democrats. 2022 is now the first midterm year since 1934 in which every sitting senator from the president’s party won re-election. It’s the cherry on top for a cycle that saw Democrats beat expectations across the board, even as the party still surrendered the House.

For Trump, it’s another major loss. The former president loves to brag about his endorsement scorecard, but it doesn’t look so pretty after Georgia. Trump went 2-14 in battleground races where he endorsed a candidate for governor, senator, or secretary of state this year.

Trump will face particular blame for the Georgia loss since he recruited Walker, who has been friendly with since the legendary running back played for a short-lived, Trump owned football team. Expect for the results to lead to another round of hand-wringing within the GOP about Trump’s role in the party, as he seeks the Republican presidential nod for a third consecutive cycle.

Goodbye to 50-50. In January, the Senate will have been tied for two full years, the chamber’s longest 50-50 split in history. But Warnock’s win means the even breakdown won’t continue for two more years, as a Democratic pickup in Pennsylvania gives the party 51-49 control of the Senate.

As I previewed last week, the 51-49 split means Democrats can break free from the power-sharing agreement that has governed the Senate for the past two years and take full control of committees, giving the party unfettered subpoena power and fewer hurdles to confirming judicial nominees.

The lack of a tied Senate will also free up tie-breaking VP Kamala Harris’ schedule, diminish the power of centrist Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), and give Democrats a much-needed cushion as they seek to protect their Senate majority against a daunting map in 2024.

A new presidential contender enters the chat? Raphael Warnock has now gone from being a political newcomer to being the top vote-getter in four Senate contests in two years, including two runoff elections, which were specifically designed to keep Black candidates like Warnock out of office.

A smooth communicator who hails from a pivotal battleground state, Warnock’s victory makes him an attractive presidential candidate for Democrats, either in 2024 (if Biden doesn’t run) or in 2028 (if he does). Keep in mind one of my favorite fun facts: every Black Democrat that has ever been elected to the U.S. Senate has gone on to run for president. Will Warnock be next?

Happening today: Supreme Court to hear major elections case

The Supreme Court will hear oral arguments today in Moore v. Harper, a high-stakes case that could upend the American election system. Here’s what you need to know:

The dispute at hand: The case originates from North Carolina, where the state Supreme Court ruled in February that new congressional district lines adopted by the Republican-controlled legislature were a partisan gerrymander that violated the state constitution.

Why it matters: That may sound like a fairly routine redistricting case, but the dispute has taken on national importance because of the line of argument that the North Carolina Republican legislators are poised to deploy.

The GOP lawmakers have embraced something called the “independent state legislature theory,” which argues that the U.S. Constitution gives state legislators almost exclusive authority to set federal election rules — without allowing for any oversight from state courts to ensure the election laws passed are in compliance with state constitutions.

Where the theory comes from: The theory was first floated in a modern context during the 2000 presidential election, when lawyers for George W. Bush brought it up as an argument for reversing the Florida Supreme Court’s decision to allow a recount of the state’s vote to continue.

At the time, the theory was adopted by then-Chief Justice William Rehnquist, who cited it in his concurring opinion in Bush v. Gore. Two other justices joined his opinion: Antonin Scalia and Clarence Thomas. On the current court, Thomas is one of four justices who have expressed support for the theory to varying degrees, along with Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.

Five justices would be required for the theory to become law.

The arguments for and against: Proponents of the theory root their arguments in Article I, Section 4, Clause 1 of the Constitution, known as the “Elections Clause.” It reads:

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 Senators.

Those “carefully drawn lines place the regulation of federal elections in the hands of state legislatures, Congress, and no one else,” the North Carolina Republicans argue — claiming that the Constitution includes no place in the process for state courts.

Meanwhile, opponents of the theory argue that the Founders did not intend for state lawmakers to wield unchecked power. In a rare amicus brief, all 50 state supreme court chief justices pushed back on the theory:

“While the text of the Elections Clause requires that state legislatures prescribe the laws governing federal elections, it does not otherwise displace the states’ established authority to determine the final content of their election laws, including through normal judicial review for constitutionality.”

If the Founders had meant for election law to be immune from judicial review from state courts, unlike all other areas of state law, they would have said so explicitly, opponents of the theory argue. In turn, advocates of the theory argue that judicial review would still exist for election law, but only from federal courts — not at the state level.

What it would mean for elections: If adopted by the court, the independent state legislature theory could lead to radical changes in how America runs its elections: lawmakers would face little oversight in how they draw legislative district lines or implement restrictions (or expansions) on access to voting.

Some attorneys argue that the theory would allow state legislatures to overturn presidential election results and award electors to a candidate who lost their state’s popular vote — although others push back on that possibility, arguing that there are other constitutional protections against such an outcome.

J. Michael Luttig, a retired conservative federal judge who is part of the legal team combatting the theory, has called Moore v. Harper “the most important case for American democracy in the almost two and a half centuries since America’s founding.”

When to expect a decision: The Supreme Court could technically issue its ruling any time, but the most consequential opinions — such as this one — almost always come at the end of the court’s term, which is in June.

🚨 What else you should know

TRUMP: “Donald Trump’s company was convicted of tax fraud Tuesday for helping executives dodge taxes on extravagant perks such as Manhattan apartments and luxury cars, a repudiation of financial practices at the former president’s business as he mounts another run for the White House.” AP

  • “DOJ subpoenas officials in Wisconsin, Michigan and Arizona for communications with Trump around 2020 election” CNN
  • “Jan. 6 committee is likely to make criminal referrals related to Capitol attack” NPR

SPEAKER VOTE: Rep. Andy Biggs (R-AZ) announced on Tuesday that he will challenge House Republican Leader Kevin McCarthy (R-CA) for the speakership on the House floor in January.

Biggs drew only 31 votes against McCarthy when the two went head-to-head for the Republican conference’s endorsement last month — so clearly Biggs becoming speaker is a long shot. But the GOP margin in the House is so narrow that if would only take five of those Republicans voting for the Arizonan to deny McCarthy the speakership on the first ballot.

That would be the first time since 1923 that a speakership vote has taken more than one ballot, a hugely embarrassing way for McCarthy to start the new Congress. “You can’t beat someone with no one,” the Washington refrain often goes; Biggs’ announcement gives the anti-McCarthy faction someone to vote for.

  • This caught my eye: Rep. Steve Scalise (R-LA), McCarthy’s No. 2, did not say “no” when asked by CNN if he would seek the speakership if McCarthy’s bid falters.

MORE HEADLINES: “The Supreme Court thrives on hypotheticals. Alito’s latest sparked a backlash.” WaPo

  • “Nebraska Gov. Ricketts to seek Senate seat held by Sasse” Axios
  • “Fallen officer's family snubs McConnell and McCarthy at Jan. 6 gold medal ceremony” Politico

🗓 What your leaders are doing today

All times Eastern. Click on an event’s time to watch or listen to it.

Executive Branch

President Biden will receive his daily intelligence briefing (9 am) but has nothing else on his public schedule.

Vice President Harris will meet with Prime Minister Ingrida Šimonytė of Lithuania (1:40 pm).

Second Gentleman Doug Emhoff will host a roundtable with Jewish leaders to discuss the rise of anti-semitism and efforts to combat hate (11 am). Emhoff is the first Jewish spouse of a president or vice president in U.S. history.

White House press secretary Karine Jean-Pierre will hold her daily press briefing (2 pm).

Legislative Branch

The Senate will convene (10 am) and hold votes to confirm four district judge nominees: Mia Perez, Kai Scott, and John Frank Murphy (all for the U.S. District Court for the Eastern District of Pennsylvania) and Jerry Blackwell (for the U.S. District Court for the District of Minnesota).

The chamber will also hold a cloture vote to advance the nomination of Jeffery Hopkins (for the U.S. District Court for the Southern District of Ohio).

After today, the Senate will have confirmed 94 federal judges nominated by President Biden.

The House will convene (2 pm) and vote on two pieces of legislation:

— The James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, the annual package laying out Defense Department spending levels and policies for the year ahead. This year’s 4,408-page, $858 billion bill will raise pay for service members by 4.6%, authorize $800 million in aid to Ukraine, end the military Covid vaccine mandate, and overhaul how the military handles sexual assault cases.

A number of add-on provisions that Democrats hoped to include were left on the cutting room floor, including permitting reform, a media bargaining bill, and a marijuana banking measure.

— The EAGLE Act, a bipartisan bill which will phase out the per-country cap on employment-based immigration. Currently, no more than 7% of green cards issued by the U.S. in a year can go to immigrants from a single country. The measure would also raise the 7% per-country cap on family-sponsored visas to 15%.

Judicial Branch

The Supreme Court will hear oral arguments in Moore v. Harper (10 am). The case, originating from a North Carolina redistricting dispute, could dramatically reshape how elections are run in the United States.

👍 Thanks for reading.

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— Gabe