Today, the Supreme Court rejected a controversial legal theory that would have transformed election laws across the country. In a 6-3 ruling, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett sided with the liberals.
00:05:41.000I'm going to catch up with the catch up with the day today.
00:05:43.000We're a little you know, we're got our head down here at the war room.
00:05:47.000John Eastman is going to join us in a minute.
00:05:50.000I want to make sure everyone understands the.
00:05:54.000As we said yesterday in the show, when it first came out, the blockbuster nature of this of this ruling yesterday,
00:06:02.000think also what it means for where we spend our time and who you back, because now it's becoming clearer and clearer that the Bush kind of, you know,
00:06:15.000the Chevy Chase Republicans are not going to be, you know, following the Constitution.
00:06:27.000It's really outrageous that, you know, Kavanaugh and Roberts in particular, the Chevy Chase crowd went against this.
00:06:37.000And you saw where the rocks of Gibraltar, Justice Alito, Justice Thomas and Justice Gorsuch.
00:06:44.000And you ought to read their dissenting opinion is quite powerful.
00:06:47.000So we got two things we're going to do.
00:06:49.000Eastman is going to come over and explain what what actually took place and why this is so against the Constitution and taking powers away from the state legislatures,
00:06:57.000which is what the framers and the founders wanted and really consolidating power into the apparatus.
00:07:05.000But we're also going to talk about what we have to do to fight back, particularly redistricting.
00:07:08.000The reason I want to start the show with this today, this audience was absolutely central to the redistricting fights that took place in in twenty one and twenty two to make sure that these are fair.
00:07:20.000These are not about partisan maps. These are not about Republican maps. These are not about MAGA maps.
00:07:25.000These are about having fair redistricting efforts in these states that reflect the states themselves in both Missouri and in Florida, particularly because DeSantis at the time was asleep at the switch.
00:07:40.000I realized a lot of his fanboys saying, oh, no, no, no, he was he was not on it. OK, we know we were there.
00:07:45.000So he got his mind right and did did the right thing at the end. But at the beginning, he was not there.
00:07:52.000And the folks in the Tennessee legislature were really the ones that showed the way that led the way on this.
00:07:57.000I want to bring in Alex DeGrasse. Alex, so talk to us. I'm going to get Eastman on in a minute to talk about the theory and the and the and the practicality of the state legislature.
00:08:07.000But talk to me about the work ahead. What do we have to do to make sure we are fighting?
00:08:12.000And as we always fought for fair redistricting that reflects the population of the state and the population of these areas.
00:08:23.000So I think what this unfortunate court decision puts it in front of us is the state Supreme Courts now are probably the most important seat, you know, seat of power in our country, other than probably the presidency, of course.
00:08:36.000But they'll determine election integrity issues and they're going to determine, obviously, the redistricting.
00:08:41.000And so you have a couple of things at play here. We just lost Wisconsin for the first time, I think, in a decade or two, which is a disaster.
00:08:48.000And I know this show and Scott Pesler and folks were really trying to force the issue to get people involved and get out to vote.
00:08:54.000And we lost it. We were able to flip Ohio, flip North Carolina.
00:08:59.000So that's critical. So those maps will be revisited, of course.
00:09:02.000In some states, it's a sort of a status quo situation in New York, where, unfortunately, even the liberal court is better than the state legislator.
00:09:11.000We're looking at our maps being tossed and we should have, you know, we should have the result of that court case within a month.
00:09:19.000So what's at play, Stephen, the short term is eight seats, I think, at Delta.
00:09:23.000So we could pick up seats depending on if people hold the line and we get aggressive and push things through in North Carolina, Ohio.
00:09:31.000If we could hold the line in Alabama, we've got a court case up to the Supreme Court in South Carolina on racial gerrymandering that Mark Elias is bringing.
00:09:39.000So obviously, you know, it's a scam. And then obviously, New York with the Delta, four seats there.
00:09:44.000So Wisconsin, I think it's going to go down one or two against us.
00:09:48.000So a lot at play here. But the key is state Supreme Court races are now, I think, the most important election other than the presidency.
00:09:59.000What these redistricting is in North Carolina and Ohio.
00:10:03.000Just walk me through the simple math, as you say, what a fair map is and what are we actually fighting for?
00:10:08.000Because with this situation in Alabama and Louisiana, they could change these districts.
00:10:14.000I mean, we could be back to an even house right at the gate.
00:10:38.000North Carolina, there could be two, three seats where if there were fair lines, you could have either more Republican leading seats or a few more safe Republican seats.
00:11:00.000And then Alabama and Louisiana, I believe, don't quote me, but I think they're going to try to put seats up that would reflect somewhat of the same partisan demographics while having to change race.
00:11:13.000It's it's it's that's going to be net one out of each Alabama.
00:11:17.000And so, I mean, best case, it's your best case.
00:11:22.000You're saying it's a break even if we deliver Ohio and North Carolina.
00:11:29.000And you're saying this could be net down to to break even at best and maybe much worse.
00:11:36.000It could be much worse if we hold New York.
00:11:39.000New York is going to be key because that's where the biggest delta is.
00:11:42.000And, you know, we have a great argument that we think that Mark Elias's case is an unmitigated fraud and probably one of the most blatant attempts to steal the election right in front of us.
00:11:53.000So we don't have much faith in a way that it is a Democrat court.
00:11:57.000And this thing goes all the way to the top.
00:11:59.000They actually swapped out a judge and I believe blackmailed a former Republican then appointed by Cuomo head of the appeals court to get her out of the way just to jam through this court case.
00:12:09.000So this thing goes all the way to the top.
00:12:11.000You see, as you saw the lead of the show, all the mainstream media talking about it.
00:12:15.000You've got Obama weighing in, Holder, every Democrat person.
00:12:19.000They've all got the talking points, fringe legal theory.
00:12:23.000This whole thing, it's all centralized, all a massive power grab.
00:12:27.000But, I mean, there's a small chance we pick up seats here if everything holds the line and we win that New York court case.
00:12:32.000If we lose the New York court case, it gets very tough because we could lose one or two down south, Wisconsin one or two, hold New York and then pick up, you know, three, four in North Carolina, Ohio.
00:16:39.000Now, the case before the court today contained at its core an idea that was central
00:16:45.000central to the Donald Trump scheme to overturn the 2020 elections.
00:16:49.000The question of whether state legislatures can do whatever they want in elections,
00:16:54.000up to and including simply appointing electors to their preferred candidate,
00:16:58.000even when the citizens of their state vote the other way.
00:17:02.000Trump's lawyers pushed the idea that Republican legislators in all kinds of states could simply ignore the will of the people in states that voted for Joe Biden
00:17:12.000and opt instead to send their own fake electors, Trump electors, to Congress.
00:17:17.000It was fake electors in seven swing states, Arizona, Georgia, Michigan, Pennsylvania, New Mexico and Nevada,
00:17:23.000that in coordination with the Trump campaign, sought to overthrow the election results.
00:17:28.000Trump and his lawyer John Eastman, along with others, actively lobbied for and pushed this idea across multiple states,
00:17:35.000trying, in fact, to get state legislatures to abandon their core democratic duty and choose instead a path to essentially crown Trump king.
00:17:45.000The court has rejected a controversial legal theory that would have transformed election laws across this country.
00:17:51.000The case involved a disputed congressional district map in North Carolina that was drawn by Republicans.
00:17:57.000Now, the state argued that the Constitution gives legislators nearly unlimited power to make rules for presidential and congressional elections in their states.
00:18:06.000On a six to three vote, the justices dismissed the independent state legislature theory.
00:18:11.000The decision written by Chief Justice John Roberts maintains this, that state courts can decide disputes over election law.
00:18:19.000Major ruling yesterday from the Supreme Court, which made it more difficult for the big lie to repeat itself in 2024.
00:18:26.000The case Moore versus Harper, based out of North Carolina, centered on a radical theory known as the independent state legislature theory.
00:18:36.000It would have given state legislatures virtually unchecked power over federal elections based on an extreme interpretation of the Constitution's elections clause.
00:18:47.000In a six to three ruling, the Supreme Court rejected that anti-democratic theory with Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett siding with the liberals in his opinion.
00:19:02.000The chief justice writes, the elections clause does not insulate state legislatures from the ordinary exercise of state judicial review, adding that the legislatures, the framers recognized, are the mere creatures of the state constitutions and cannot be greater than their creators.
00:19:22.000John Eastman, a legal advisor to Donald Trump, embraced this fringe theory as a way to overturn the 2020 election, arguing that then vice president.
00:19:40.000I want you to walk through the theory of the case here, why this was such a radical decision yesterday.
00:19:44.000And I want to tell people this is signal, not noise.
00:19:48.000This is going to change the battlefield and you're going to have to, I realize you're the hardest working people in the MAGA movement, but you got to man up here because this is going to be ugly.
00:20:24.000And if it's such a fringe theory, it's a little odd that I got several justices agreeing with me.
00:20:29.000That typically doesn't happen on fringe theories.
00:20:33.000But more importantly, and I want to go after this theme that, you know, all of those news accounts said that this is going to bolster democracy.
00:20:40.000What we're doing here is taking the power to direct the manner of choosing electors from the most democratic branch, the legislature, and handing it over to the state courts, the least democratic branch.
00:20:53.000And yet this is somehow bolstering democracy to let courts, you know, pick a phrase in their state constitution that says, you know, you have to have free elections and use that to impose its own election code contrary to what the state legislature does.
00:21:08.000If they decide, well, we've got to have no excuse mail-in voting and the legislature disagrees, well, we think it's necessary for fair elections.
00:21:15.000So we're going to order it a signature verification in order to eliminate the risk of fraud or reduce the risk of fraud.
00:21:23.000So we're going to get rid of that because we don't think that's fair.
00:21:26.000You and these are oftentimes unelected judges or at the very least certainly less accountable than the state legislators are.
00:21:33.000The notion that this is undermining democracy by letting the power stay where the Constitution vests it is rather bizarre.
00:21:42.000And the other thing I want to point out, they all say, well, we were using this to overturn the election and undermine the will of the people.
00:21:51.000We were trying to understand who the true winner was in order to bolster or enhance the will of the people.
00:21:58.000If there were illegal votes that were cast because of decisions by county clerks or state Supreme Court judges or secretaries of state, illegal votes that determine the outcome of the election.
00:22:10.000And if you count only the legal votes, Trump would have won.
00:22:13.000That's upholding the will of the people, not undermining it.
00:22:16.000So this narrative, this big lie narrative that they keep fostering.
00:23:32.000So here's my point just because I'm not a constitutional scholar like you.
00:23:37.000If that is in the Constitution, what does Roberts argue that this should shift and the courts and others should get involved in this process?
00:23:48.000How can they reinterpret the Constitution like that?
00:23:51.000Well, their argument is that, well, back at the time of the founding, it was customary for state courts to have judicial review over things their legislature did.
00:24:01.000But that was when the legislature is acting pursuant to the state constitution.
00:24:05.000When they're acting pursuant to the federal constitution, their power comes directly from the federal constitution.
00:24:11.000And, of course, they're bound by constraints in the federal constitution.
00:24:15.000But to say that they are also bound by constraints or limitations in their state constitution is to that extent to take the power the federal constitution gives to them away.
00:24:27.000And Chief Justice Roberts knew this well a decade ago.
00:24:30.000He writes a dissent in the Arizona Redistricting Commission case that's very powerful and very persuasive.
00:24:37.000He said there are nine or ten places where the Constitution gives power not to the state but to the state legislature.
00:24:45.000Like when they decide whether to ratify a constitutional amendment.
00:24:50.000And we've now opened the door to say, well, if they ratify a constitutional amendment and there's some provision in their state constitution that says they can only ratify fair amendments, then the state court is going to decide whether it can be ratified or not.
00:25:03.000This is a radical departure from the federal constitution.
00:25:09.000And, you know, from decades, half a century, like I said, states were choosing their own electors in many instances, all the way up to 1860 for South Carolina, choosing their own electors.
00:25:20.000The election for state legislatures leading up to the presidential election year would often turn on who you were supporting for president, who you're going to cast a vote for in your state legislature.
00:25:30.000But but that's clear. And the Supreme Court over a century ago called that power plenary, meaning it knows it knows it doesn't answer to anybody else because they wanted the power in the branch of government most directly accountable to the people.
00:25:45.000Not in not in an unelected judiciary or or even when the judiciary is elected, they're not kind of elected routinely and frequently like the state legislature is.
00:25:55.000So going forward, according to this ruling, going forward, the state legislature, like we saw in the Commonwealth of Pennsylvania and all these rule changes they had and some are unconstitutional, you know, the two signature verification of the mail and ballots, all of this in 2024.
00:26:13.000Walk me through. Walk me through. How does this work in 2024?
00:26:17.000Well, it's going to be a lawfare bonanza.
00:26:21.000So, you know, there's a line in there. Justice Thomas, in his dissent, points out points this out.
00:26:28.000It says that the legislature is subject to the ordinary judicial review.
00:26:34.000But then it says I want to get the language here.
00:26:40.000So judicial review, but only as long as it doesn't, quote, transgress the ordinary bounds of judicial review, such that the courts aggregate to themselves the power vested in the state legislatures to regulate federal elections.
00:26:53.000So when is a court decision striking down an aspect of state election law in the ordinary power of judicial review or is it transgressing those ordinary bounds?
00:27:08.000And, you know, there's no answer to that.
00:27:12.000There's no answer to that. It's just going to be a raw exercise of power by the courts.
00:27:16.000And then the question is, how often will the Supreme Court step in to limit what the state courts are doing?
00:27:25.000The state court was simply changing the rules of the election after the fact with a partisan bent.
00:27:31.000I know one of the reasons you have rules in advance is that when you pass the rules, nobody knows who they're going to benefit.
00:27:37.000When you allow for rules to be changed in the middle of the game, you know, every single change, you know, you know which side that's going to benefit.
00:27:46.000If you weaken absentee ballot verification rules and you know that one side is relying much more heavily on absentee ballots than the other, that's a partisan decision to benefit one side.
00:27:58.000John, can you hang on for one second? We're going to just hold you to the break.
00:32:20.000Well, he goes through every clause in the Constitution that mentions the word state or legislature.
00:32:26.000And, you know, when it says that there's a power in the state or a reserved power in the state, they mean the whole state apparatus according to the state constitution.
00:32:37.000But when it says the legislature of the state, that's specific and it's referring to a particular body.
00:32:44.000And so if you're going to split a part of your state off and form a new state like happened with West Virginia during the Civil War from Virginia, the legislature of the state has to approve.
00:32:59.000That doesn't mean the legislature of the state subject to judicial review, subject to the governor's signature.
00:33:05.000If you're going to approve a constitutional amendment, Congress has two routes.
00:33:10.000They can send it to a constitutional convention in your state or they can send it to the legislature of the state.
00:33:15.000And there's the Supreme Court case that says even the lieutenant governor presiding over that session doesn't get to cast the deciding vote because that's no longer the legislature of the state.
00:33:27.000So all of these mechanisms in the state constitution, you want to call yourself into special session to deal with election fraud, you get to do that.
00:33:36.600You don't have to wait for the governor to call you into special session.
00:33:39.880That's a constraint on your normal legislative powers that the state constitution provides that doesn't apply, or at least according to Roberts at the time, didn't apply in the context of exercising powers that you have from the federal constitution.
00:33:55.400So that was all clear and very persuasively argued in Chief Justice Roberts' dissent 10 years ago.
00:34:31.980They're on offense in the state courts trying to alter election laws that they don't like, weakening signature verification to open the door for fraud, getting rid of voter ID requirements, all these things.
00:34:46.180And if the legislatures don't comply with their demands and their pressure, they will now try and get friendly courts to do so.
00:34:53.000And in many cases, they will find them.
00:34:55.580They're also on offense, keeping the rest of us on defense.
00:34:58.740You know, that's the larger story of my bar trial, the 65 projects seeking to disbar all of the Trump lawyers.
00:35:08.420Keep us on our heels so we can't be ramped up in time for the 2024 election because we're fighting for our professional lives.
00:35:16.460And also, and this is important, and the head of the 65 project has admitted as much, our goal is not just to get them all disbarred, but to make them so toxic in their firms and communities that right-wing legal talent will never want to step up and bring these election challenges again.
00:35:35.160They're trying to clear the field so that they have an unhindered path toward doing it in the election law, whatever they want, and that if the election is wonky or illegal or fraudulent, there won't be anybody willing to put their head above the sand and take on the challenge.
00:35:53.820If you want to see the cowardice, just look in John Roberts, Exhibit 1 in a Coward, and this is what's going to happen to these law firms.
00:36:03.120Hey, this is where Mark Elias and the 65 projects, these are bad people, but they play smash mouth, and this is the lesson that we have to take from this.
00:36:14.860You're going to have to fight fire with fire.
00:36:16.980If you want to defeat these guys, they control the law schools.
00:36:20.280They control these big law firms, and they're coming at you, and guys like Roberts are what most lawyers are, gutless cowards.
00:36:27.800That's why we need heroes to step up here, and we need to do it now.
00:36:31.180This is like you've got to break the glass on this.
00:38:33.660You give me the combined intellect or you give me the intellect of any one of Alito, Thomas, and Gorsuch against the collective intellect of the other six.
00:38:44.320You give me that, I'll take any one of those guys.
00:39:04.420The project, the 65, these people, these are very smart, very tough, very cunning people.
00:39:12.800Now, in the project, in the 65 project, it's not just to keelhaul John Eastman on global television, right, and give him a struggle session for days and days and days.
00:39:27.360But it's the following question, it's to make it so toxic, the topic so toxic that any kid that's in a top law school can't even talk about it in law school.
00:39:35.680And if you can't go to a real firm, if you go to a firm and bring it up, you're out or you'll never get hired by a firm.
00:39:40.360And none of the firms with the heavyweight, the heavyweight lawyers will ever touch it, will ever touch it.
00:39:53.800Look at this hapless group of clowns, McCarthy.
00:39:57.480Look at all the information that has come out.
00:39:59.460And by the way, Tom Elliott, if Grayson Moe can put that up, Tom Elliott has got an amazing thing just going through the 2020 election, not on the electoral side, but the FBI.
00:41:21.940I mean you've got a full team of lawyers and courtroom techs and all that stuff.
00:41:26.080This is a full-blown trial that I'm defending on the validity of the entire election because on your show I said there's lots of evidence of fraud and illegality.
00:41:34.880So now they're putting on all the government people trotting out saying, oh, no, our election was perfect.
00:41:41.200And anybody that says otherwise, well, how dare they question the government?
00:42:12.000They're using Eastman as an example to every young lawyer out there.
00:42:17.580If you come here, if you go there, if you question authority, if you question the government, if you question the government, this is what will happen to you.
00:43:01.680They need to first realize what's going on.
00:43:03.600And they need to not cower in the face of it.
00:43:06.100There are things more important than a nice, comfortable life.
00:43:10.260We're talking about the future of freedom for the generations to come.
00:43:14.040And if you're not willing to stand up, you will have handed your grandkids a despotism that they will suffer through in a way that you didn't inherit from your ancestors.