The court case that could transform U.S. elections

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Sep 09, 2022 View in browser   By Zach Montellaro People line up to cast their in-person absentee ballots in South Carolina in 2020. | Michael Ciaglo/Getty Images INTERPRETIVE DANCE — One of the biggest cases on the Supreme Court's docket next term is Moore v. Harper . At its core, it is yet another fight over North Carolina's congressional maps. But this is one that will likely have far reaching effects beyond the state's boundaries. Boiled down to its essence, Republicans in North Carolina are pushing the nation's highest court to invalidate a state court's redistricting decision under a constitutional interpretation referred to as the "independent state legislature" theory. The theory revolves around the Elections Clause of the Constitution, which reads that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," subject to regulations from Congress. Proponents of the ISL theory argue that that wording — an explicit mention of a "legislature," and not the judiciary — means there is little, or no, role for the state judges to check the election-related decisions of state legislators. Many prominent election scholars and voting rights groups, however, say that could mark a dramatic remaking of America's election laws resulting in a consolidation of power in the hands of state legislatures. It could, for example, give them near-unchecked authority to draw political boundaries in the favor of one political party, or pass more strident requirements around registration or voting practices without a way to challenge them in state court. The once-fringe theory, which traces its roots back toward former Chief Justice William Rehnquist's concurrence in Bush v. Gore, has now found near-universal buy-in from across the conservative legal universe, as seen in the friend of the court briefs that poured in earlier this week. Briefs from the Honest Elections Project — part of the sprawling network of groups tied to conservative activist Leonard Leo, one of the most influential people on the American legal right; the American Legislative Exchange Council ; the Republican National Committee and National Republican Congressional Committee; and others — argue to varying degrees for stripping state courts of much of their ability to review election procedures set by legislatures. They contend that critics of the theory are engaging in overwrought, " political histrionics." And John Eastman (yes,THAT John Eastman, the lawyer who was behind then-President Donald Trump's attempts to have states' valid electors tossed out), goes a step further in his brief for The Claremont Institute , tying this larger debate to similar wording in the U.S. Constitution's Electors Clause, which determines how states appoint electoral college electors. One result of such a reading would be to box out state courts in disputes over many aspects surrounding presidential elections — that could lead to even more uncertainty around presidential electors, a gray area that Trump and his allies sought to exploit last year. Already, four justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — have all signaled at least some favorability to some form of the theory. The question is if one of the court's other two conservative justices will join them, and, if so, how far a majority will go. The independent legislature debate is not happening in a vacuum. Instead, it is coming during the same term as another pivotal Supreme Court case on redistricting — this time on racial gerrymandering in Alabama. After a lower court found that the maps were diluting the voting power of Black voters, Republicans there appealed. That case could potentially weaken the already diminished Voting Rights Act by effectively making it much harder to bring racial discrimination claims in federal court. Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com. Or contact tonight's author at zmontellaro@politico.com or on Twitter @ZachMontellaro.   STEP INSIDE THE WEST WING: What's really happening in West Wing offices? Find out who's up, who's down, and who really has the president's ear in our West Wing Playbook newsletter, the insider's guide to the Biden White House and Cabinet. For buzzy nuggets and details that you won't find anywhere else, subscribe today.     What'd I Miss? — Republicans to Trump: Pony up more cash in battle for Senate: Mitch McConnell is indirectly nudging Trump to help Republicans try to flip the Senate. The minority leader is advising Trump-backed candidates and senators with good relationships with the 45th president to prod him to transfer millions of dollars from his leadership PAC to super PACs supporting Trump's favored candidates, according to two people familiar with McConnell's entreaty. The private push to get Trump to financially engage in a number of battleground states comes as the former president sits on roughly $99 million, stored in his PAC. — Biden says he will attend Queen Elizabeth's funeral: President Joe Biden said today that he will attend the funeral of the United Kingdom's Queen Elizabeth , the most definitive comment to date from the White House on whether the president will travel for the service. "I don't know what the details are yet but I'll be going," Biden told reporters before boarding Air Force One after a speech in Ohio. The president also said he knows King Charles but has not yet spoken to him since the death of his mother. — Same-sex marriage bill teeters on verge of GOP filibuster: The same-sex marriage bill that won over nearly 50 House Republicans is now at risk of falling to a Senate GOP filibuster — with its vote count largely hinging on how it addresses religious liberty. Sens. Tammy Baldwin (D-Wis.) and Susan Collins (R-Maine) are drafting an amendment aimed at satisfying conservative concerns that the bill — backed in its current form by two members of House GOP leadership — risks infringing on religious freedom. But only three GOP senators are firmly backing the bill and it's far from clear, despite expectations of success, that a total of 10 will emerge.   SUBSCRIBE TO POWER SWITCH: The energy landscape is profoundly transforming. Power Switch is a daily newsletter that unlocks the most important stories driving the energy sector and the political forces shaping critical decisions about your energy future, from production to storage, distribution to consumption. Don't miss out on Power Switch, your guide to the politics of energy transformation in America and around the world. SUBSCRIBE TODAY.     AROUND THE WORLD Thousands of demonstrators gather to protest against the government at Wenceslas Square in Prague on September 3rd. | AP Photo/Petr David Josek TAKING TO THE STREETS — European politicians returning to their desks after a summer break have found a pressing problem in their inbox — a cost-of-living crisis already fomenting social unrest, write Suzanne Lynch and Jacopo Barigazzi. While many Europeans were enjoying the summer sun, protests were also percolating across the bloc, from Spain to Germany. In Prague last weekend, an estimated 70,000 people took to the streets to demonstrate against the government, demanding action on rising energy costs — and chanting against the EU and NATO. Europe is battling record inflation, largely a product of the energy costs that have ballooned since Russia invaded Ukraine. The toxic brew has left Europeans fearful of an exorbitant heating bill this winter. A diplomat from a Baltic country predicted Europe may face a fresh populist surge if leaders can't rein in costs. "This might be the third wave of populism in recent times," he said, citing the financial crisis of 2008 and the migration crisis around 2014 as the two prior waves. "This time could be the worst and have unpredictable consequences. We also believe that this is what Putin is pushing for." Nightly Number $28 million The additional amount of money the National Republican Congressional Committee is dropping on fall TV advertising, bringing the committee's total spending to $80 million as it nears the final leg of its bid for the House majority. Nearly three-quarters of that spending will go toward targeting Democratic-held seats. Parting Words POLITICO illustration/Photos by Getty Images, AP, iStock IN THE PUBLIC EYE —  At long last, Charles is the king. And at 73 years old, the longest-serving heir in British history has had a whole life while he's waited to ascend the throne. That means the former Prince of Wales had plenty of time to pursue a naval career, establish a catalog of charities, marry twice and collect his fair share of scandals along the way. What do we need to know about the man now atop the royal food chain? Here, culled from interviews, media coverage and royal communications, is an excerpt of a primer on the life of Charles, told in full in 55 facts by Ella Creamer. Fact #9: At age 14, Charles ordered a cherry brandy for two shillings and a sixpence in an Isle of Lewis pub after riding on a Gordonstoun School sailboat. It was illegal for under-18-year-olds to be served, and, unfortunately for Charles, a reporter was sitting at the bar. A national scandal ensued, and the prince's bodyguard, Don Green, lost his job. Fact #12: Charles made his first trip to Washington in 1970 and spent time with Richard Nixon's daughter. He later reflected: "That was the time when they were trying to marry me off to Tricia Nixon." Fact #32: Charles was given the Harvard Medical School Global Environmental Citizen Award in 2007. He was presented the honor by Al Gore, who had previously won the award. Fact #34: Charles' U.S. Secret Service codename is "Unicorn." Did someone forward this email to you? Sign up here.   Follow us on Twitter Charlie Mahtesian @PoliticoCharlie Calder McHugh @calder_mchugh Myah Ward @myahward Naomi Andu @naomiandu   Follow us

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