The Supreme Court Case That Could Upend Elections

The New Yorker Radio Hour

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🗓️ 2 December 2022

⏱️ 20 minutes

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Summary

J. Michael Luttig is a retired judge of the U.S. Court of Appeals and a prominent legal mind in conservative circles, close with figures including Clarence Thomas and William Barr. On January 5, 2020, he got a call from Vice-President Mike Pence’s then-lawyer asking Luttig to publicly back Pence’s decision not to attempt to overturn the election the next day. Luttig tweeted that the Vice-President had no constitutional authority to stop the election, and suddenly the judge was thrust into the center of the crisis.

Now Luttig is siding with Democrats as co-counsel on the Supreme Court case Moore v. Harper, which he tells David Remnick is “the most important case, since the founding, for American democracy.” At the heart of the debate is the independent-state-legislature theory, a once-fringe legal concept that Donald Trump and his allies believe should have allowed Pence to reject the popular vote in 2020. If the court adopts the theory, it could grant legislatures essentially unfettered authority to run national elections; they could not be challenged even if the election violated the state constitution. Such power, in the hands of a gerrymandered legislature, could be used to bypass the popular vote and appoint a new slate of electors, effectively empowering state lawmakers to choose a winner. The court will hear the case on December 7th.

Transcript

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0:00.0	This is The New Yorker Radio Hour, a co-production of WNWC Studios and The New Yorker.
0:09.6	Welcome to The New Yorker Radio Hour, I'm David Rammnick.
0:14.6	This year's midterm elections ended with a sigh of relief for defenders of democracy.
0:19.4	There seems to have been no violence and relatively few races that were challenged by the losers.
0:25.0	The dream is unfair, poorly, but a significant number of election deniers did win seats in the house of representatives
0:32.3	and states are still chipping away at voting rights.
0:35.5	And Donald Trump will continue to do everything he can to undermine faith in the process.
0:42.1	So we're going to take a look at where we stand now in the wake of that election.
0:46.5	In our next episode, I'll be talking with the authors of the cheerfully named best-seller
0:51.0	How Democracies Die. And we'll start today with Jay Michael Ludic, a retired judge of the US Court of Appeals.
0:59.6	Ludic is quite a prominent figure in legal circles. He's close to everyone from Clarence Thomas to William Barr.
1:06.0	And he was mentioned as a Supreme Court pick during the George W. Bush administration.
1:10.8	But Ludic finds himself at odds now with the Republican Party.
1:15.0	And in his testimony to the January 6th Committee, he harshly condemned all efforts to cast doubt on the 2020 election.
1:23.0	Donald Trump and his allies and supporters are a clear and present danger to American democracy.
1:33.9	I don't speak those words lightly.
1:38.4	So this well-established conservative is now allied with the Democratic Party on a legal case of enormous consequence.
1:46.0	Judge Ludic is co-counseled in Moore vs. Harper, which is appearing in front of the Supreme Court on December 7th.
1:52.5	That case hinges on what is known as the independent state legislatures theory.
1:59.4	That was the justification that Trump and his team gave for their effort to overturn the presidential election.
2:05.8	So the stakes for that case could not be higher.
2:11.8	Judge Ludic, you told our writer Jane Mayer that you signed on as co-counsel because you regard Moore vs. Harper as
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