Month: December 2022

The House Select Committee to Investigate the January 6 Attack on the United States Capitol had the potential to make major contributions to understanding the disgraceful events of January 6, 2021, and preventing a recurrence. As it concludes its work, what did the Committee accomplish?

The Committee’s main accomplishment was developing a clear and compelling exposition of Trump’s many transgressions relating to January 6 and indeed the whole post-election period. While it uncovered no game-changing new evidence, the Committee did add a great deal of corroborating detail as well as some dramatic flourishes.

The Committee presented its work mainly through professionally choreographed hearings that resembled a TV miniseries more than a typical congressional investigation. The Committee’s case against Trump, which relies mainly on the testimony of Republican witnesses, should be highly persuasive to all but diehard Trump acolytes. It demonstrates beyond reasonable doubt that Trump’s reckless behavior led directly to the riot and that his dereliction enabled it to fester for hours. It also establishes to a virtual certainty that Trump’s claims of a stolen election were utterly, and almost certainly knowingly, false.

While the Committee’s approach has been criticized as one-sided, the GOP is mainly responsible for this. Republicans voted down legislation to establish an independent, bipartisan commission to investigate the events of January 6, leaving a congressional committee as the only alternative. House Republican leaders then foolishly chose to boycott the Committee, and Trump along with many of his supporters refused to cooperate with it. In any event, the story of January 6 as regards Trump has only one credible side. His behavior was clearly impeachable on several grounds and demonstrated his unfitness for public office. Whether it was also criminal remains to be seen.

However, the Committee largely ignored a parallel January 6 scandal that rivals Trump’s outrageous behavior: the epic security failures that allowed an unruly gang of yahoos to successfully take over the seat of our democracy. The January 6 rioters included some truly bad actors who committed serious acts of violence in breaching the Capitol. For the most part, however, the rioters were unarmed, unorganized, and unfocused. How could a ragtag mob like this seize the Capitol of the United States and do so with relative ease? Why did it take so long to clear them out? And most important, what does their success portend for a possible future attack on the Capitol that might be better organized and more weaponized?

While individual police officers offered heroic resistance, their leadership failed them as well as Congress and the American people. Law enforcement agencies were woefully unprepared for the assault on the Capitol. (Some experts describe January 6 as the worst U.S. intelligence failure since 9/11.) Once the Capitol was breached, the agencies were unable to mount a coherent response for hours thereafter. Had security forces properly prepared and effectively executed their responsibilities, the attack, if it came at all, almost surely would have been repelled.

The few existing inquiries into January 6 security failures describe a host of problems including underestimating threats, poor planning and coordination, lack of leadership, failure to share intelligence, and bureaucratic indecisiveness. Recently released interview transcripts show that such problems were specifically made known to the Committee. Several congressional law enforcement officials resigned in the aftermath of the riot. However, there has been no other accountability on the part of law enforcement. Rather, agencies obfuscate, contradict, and blame each other. (See, e.g., here and here.) Even where countermeasures have been identified, agencies are slow to implement them.

Nevertheless, the Committee, in its singular focus on Trump and apparent zeal to fix exclusive blame for January 6 on him, essentially turned a blind eye to these security failures. The Committee’s hearings completely passed over them and its final report gave them short shrift. Two appendices to the report describe law enforcement and intelligence actions but provide no useful analysis.

The Committee has been widely (and rightly) praised for its exhaustive treatment of all things Trump relating to January 6. Its inattention to security issues has received considerably less attention, although it has not gone entirely unnoticed. (See here and here.) One commenter pointedly observed:

“The [report] summary systematically elides the egregious failures of law enforcement and intelligence agencies to predict and respond to the violence of Jan. 6. More than that, it goes out of its way to present those agencies in a positive light, despite their catastrophic neglect.”

The Committee’s disregard of security issues is particularly mystifying since they were a key part of its mandate. The House resolution establishing the Committee, as set forth on its website, specifically recites some of the intelligence and law enforcement failures relating to January 6 and lays out a number of specific security-related subjects for the Committee to investigate. Even the Committee staff was evidently taken aback by its apparent indifference to these subjects.

On balance, the Committee’s failure to address security issues outweighs its accomplishments regarding Trump. The basic narrative of Trump’s outrageous behavior was all too clear before the Committee began its work. The Committee usefully reenforced and expanded upon this narrative but came up with nothing fundamentally new. On the other hand, the equally outrageous security failures are more complex, obscure, and difficult to sort through. They cried out for greater scrutiny, which the Committee could and should have provided. Instead, it produced nothing worthwhile on this crucial front.

 

 

 

 

 

 

 

 

Background. Article I, section 4, clause 1 of the U. S. Constitution, known as the Elections Clause, provides that the times, places, and manner of holding congressional elections “shall be prescribed in each State by the Legislature thereof,” subject to potential revision by Congress. Pursuant to this authority, the North Carolina legislature enacted a redistricting map in 2021 that heavily favored Republicans. In the ensuing litigation, the state’s courts determined that the legislature’s map constituted a partisan gerrymander in violation of the state constitution. The courts then developed and substituted a new redistricting map that was used for the 2022 midterm elections.

In Moore v. Harper, recently argued before the U.S. Supreme Court, the North Carolina legislature challenged the authority of its state courts to overturn its redistricting map and replace it with their own. The challenge is based on the so-called “independent state legislature” (ISL) theory. The ISL theory posits that by vesting authority to prescribe congressional election rules specifically in the “Legislature” rather than the state as a whole, the Elections Clause exempts the legislature’s exercise of this authority from the checks and balances that would ordinarily apply under the state’s legal regime. Thus, the theory goes, state courts have no power to review exercises of this authority for compliance with the state constitution; indeed, the legislature is not bound by the state constitution when exercising this authority.

Problems with the ISL theory. There are many. For starters, nothing in the language of the Elections Clause says or implies that state legislatures assume a unique role completely divorced from the normal constraints applicable to them when enacting election rules. On its face, the language simply assigns a function to the state legislatures, taking them as it finds them. Nor is there any evidence that the language was understood to have a larger, and indeed radical, meaning. The Supreme Court observed in Arizona State Legislature v. Arizona Independent Redistricting Commission that, based on the historical record, the dominant purpose of the Elections Clause was to empower Congress to override state election rules, not to affect how states enact them.

Next, the legislature does not in fact exercise exclusive state authority when acting under the Elections Clause. Decades ago, the Supreme Court held in Smiley v. Holm that state redistricting legislation was, like other legislation, subject to state constitutional requirements for presentment to the governor and potential veto. Petitioners in Moore do not challenge this decision.

Next, the Supreme Court has in the past assumed that state courts have authority to review state legislation prescribing election rules for compliance with the state constitution. In Rucho v. Common Cause, the Court held that partisan gerrymandering presents nonjusticiable political questions beyond the reach of the federal courts. However, the majority opinion assured that the states were “actively addressing the [gerrymandering] issue on a number of fronts,” including state judicial decisions. (Gerrymandering has in fact become less a problem than it used to be due in part to state court interventions.)

Next, the state judiciary cannot as a practical matter be excluded from any role regarding Election Clause laws. Enforcement and application of these laws inevitably involves litigation, which in turn requires state courts to issue decisions interpreting them.

Finally, to conclude that the Election Clause liberates a state legislature from its own constitution would be incongruous in the extreme and violate principles of federalism. Indeed, the Supreme Court noted in Arizona State Legislature, above: “Nothing in [the Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.”

In sum, the ISL theory finds no support in the language or background of the Elections Clause, makes no sense conceptually or practically, undermines federalism, and contradicts past Supreme Court pronouncements on the Elections Clause. The far better view is that a state legislature when exercising authority under the Elections Clause remains subject to all the processes, checks, and balances that ordinarily apply to it. This includes review by state courts for compliance with the state constitution.

Invoking the ISL theory to bar state court review of alleged partisan gerrymanders under the Elections Clause is particularly problematic. It would immunize such gerrymandering from any judicial remedy. As noted, the Supreme Court has foreclosed federal judicial review. If the Supreme Court reneges on its assurance in Rucho and eliminates state judicial review as well, aggressive gerrymandering will surely intensify. History shows that both political parties will engage in this practice whenever they can get away with it.

An alternate theory. While the ISL theory is clearly overkill, it is important to uphold the authority the Elections Clause grants state legislatures to prescribe congressional election rules. They have the right to exercise this authority without infringement by other state entities, including state courts. And, since their authority is derived from the U.S. Constitution, there is a legitimate federal interest in ensuring that it is not usurped. The respondents in Moore acknowledge that some level of federal judicial review is warranted of state court decisions that contradict laws enacted under the Elections Clause, notwithstanding the total or near total deference normally accorded state court decisions that interpret and apply state law.

Based on the oral argument, it is likely that a majority of the justices will reach a decision in Moore that respects the authority of state legislatures under the Elections Clause along with the federal interest in protecting it while also respecting the states’ interest in ensuring that their laws operate in compliance with their own legal regimes. An approach balancing these important and potentially conflicting interests may be found in former Chief Justice Rehnquist’s concurrence in Bush v. Gore.

The Rehnquist concurrence. In Bush v. Gore, the Supreme Court famously (or infamously) overturned on equal protection grounds a decision by the Florida Supreme Court that ordered a statewide recount of ballots following the 2000 presidential election. Then Chief Justice Rehnquist wrote a concurring opinion, joined by Justices Scalia and Thomas, offering an additional basis to overturn the decision. He asserted that the Florida court’s decision undermined the statutory scheme enacted by the state legislature in violation of Article II, section 1, clause 2 of the U.S. Constitution, which provides (using language similar to the Elections Clause) that each state shall appoint presidential electors “in such Manner as the Legislature thereof may direct.”

Many pundits maintain that the Rehnquist concurrence represents a form of ISL, perhaps “ISL light.” This is clearly wrong; the Rehnquist concurrence does not embrace ISL at all. On the contrary, it assumes that state legislatures acting under the Article II clause (or by analogy the Elections Clause) are fully subject to the constraints that normally apply, including review by state courts. The difference is that federal courts have a greater role than they ordinarily would regarding state law issues to ensure that state courts do not usurp the authority of the state legislature granted by the U.S. Constitution.

Standard of review. If the Supreme Court does adopt a position in Moore resembling the Rehnquist concurrence, a key question will be what standard of review applies in scrutinizing state court decisions. Respondents argued that state courts should be accorded extreme deference. One maintained that deference should be “stratospheric” and another asserted that a decision should be upheld unless it was outrageous enough to suggest that the state court was “not acting like a court.” However, standards this high would be virtually insurmountable and provide no meaningful review. A more workable and familiar standard would be whether a state court decision is arbitrary and capricious. This standard still accords substantial deference to the state court decision.

Application to gerrymanders. Partisan gerrymandering is inherently suspect; even the Supreme Court acknowledged in Rucho that it is unjust and incompatible with democratic principles. Thus, most state court decisions striking down partisan gerrymanders likely would survive federal review under an arbitrary and capricious standard even if they relied only on broad concepts from their  constitutions. This includes the North Carolina Supreme Court decision at issue in Moore. There is nothing in the North Carolina constitution specifically addressing partisan gerrymandering. However, the state court concluded that the practice violated the right of voters to have all votes count equally based  on several state constitutional provisions including those guaranteeing its citizens free elections and equal protection of the laws.

In addition to examining the legal reasoning, federal courts reviewing a state court gerrymandering decision might consider the practical result of the decision. For example, if a state court converted a legislative electoral map heavily favoring one party into one heavily favoring the other, this would be strong evidence of an arbitrary and capricious decision. In Moore, however, the result reached by the North Carolina Supreme Court was eminently reasonable. Experts estimated that the gerrymandered map the court rejected would have given Republicans a 10-4 edge in House seats, although the state’s electorate is roughly split 50-50 between Republicans and Democrats. Under the substitute map the court adopted, each party won seven House seats in 2022, mirroring the composition of the electorate.

Other applications. When would a state court decision contradicting legislatively enacted election rules violate the U.S. Constitution? A Pennsylvania Supreme Court decision revising the legislature’s rules governing the 2020 election is a likely example. The Pennsylvania legislature appealed this decision to the United States Supreme Court but the Court ultimately declined to hear it, presumably because it became moot. At an earlier stage, however, Justice Alito (joined by Justices Thomas and Gorsuch) issued a statement indicating that the Pennsylvania court decision was probably unconstitutional. As he noted, the state court itself acknowledged that the election law provisions it overrode were neither ambiguous nor inconsistent with the state constitution.

Conclusion. The ISL theory is wrong in virtually every way a legal theory can be. Invoking it to foreclose any judicial review of gerrymandering affecting federal elections would be particularly egregious. At the same time, state courts cannot be allowed to usurp the authority the U.S. Constitution specifically grants their legislatures to enact federal election rules. Therefore, it is appropriate for federal courts to review state judicial decisions that countermand legislative rules impacting federal elections to ensure that they are not arbitrary and capricious. Applying this standard, the decision of the North Carolina Supreme Court at issue in Moore v. Harper should be upheld.