In a surprising turn of events, retired federal judge J. Michael Luttig joins Trump’s efforts to have the election annulled.
Luttig is considered a legal celebrity in conservative circles.
It was recently revealed that he joined a voting rights group as co-counsel in a Supreme Court case.
The group is trying to persuade the justices to reject a legal theory adopted by supporters of former President Donald Trump.
The retired federal judge was instrumental in the attack on the United States Capitol last year.
He advised then-Vice President Mike Pence’s legal team against allegations by Trump allies, including attorney John Eastman.
Eastman argued at the time that Pence could block Joe Biden’s election confirmation.
J. Michael Luttig works with a voting rights group on a separate dispute.
Liberals fear leaving rogue state legislatures free to respond to federal election rules.
The issue at hand
J. Michael Luttig will confront the so-called independent legislation doctrine.
Supporters of the theory argue that state legislatures should be able to set rules for federal elections without being constrained by the state constitution.
“The independent state legislature doctrine was the centerpiece to Trump’s effort to overturn the 2020 election,” said Luttig in a Wednesday interview.
“I have believed since January 6th that I had a responsibility to the country to explain why I rejected the theory in advising the vice president.”
The electoral law landscape would fundamentally change if the Supreme Court in Moore v. Harper decided against J. Michael Luttig and his supporters.
The case is a North Carolina District redistricting dispute involving a lower court ruling invalidating the Congressional map.
The court slammed the map, calling it an illegal partisan Gerrymander.
They replaced it with a court-drawn map that was more pro-democracy.
Republican North Carolina legislature asks judges to beat the lower court
They alluded to the Constitution’s election clause, which states that rules for “elections” must be prescribed in each state legislature.
Using the theory, they argue that state lawmakers should be able to legislate without having to go through the courts.
Traditionally, lawmakers set ground rules for conducting an election, but they have not acted alone or with the last word.
Prepared procedures are prone to the intervention of electoral administrators and state courts.
However, the stricter reading of the independent legislature theory says that state courts should abstain from federal elections.
Most North Carolina Supreme Court justices said the legislature did not have full power to sign electoral maps.
Meanwhile, the state court agreed that the reorganization had been delegated to the legislature.
The court confirmed it had to be executed to comply with the state constitution.
Court papers and arguments
Republican lawmakers have appealed to the Supreme Court, arguing that the “text of the Constitution directly answers the question presented in this case” in the court documents.
The electoral clause guarantees “unambiguous language” for federal elections and clarifies that the rules are the legislators.
On Wednesday, J. Michael Luttig presented his side’s response on behalf of the Common Cause.
The common cause is the North Carolina League of Conservation Voters and the Southern Coalition for Social Justice.
The retired judge argued that the legislator’s interpretation of the electoral clause was contrary to the more fundamental premise of the Constitution.
J. Michael Luttig elaborated, saying:
“That a government’s power derives from ‘We the People’ and is limited by the constraints the people impose on their government.”
“Conferring power on the state ‘Legislature’ to regulate congressional elections does not nullify state constitutional limits on that power.”
John Eastman delivered a lengthy amicus briefing urging the justices to embrace the theory, although it lay dormant until after the 2020 election.
Meanwhile, lawyers for the Republican National Committee rejected Eastman’s arguments.
But they also want judges to adopt a version of the theory.
The hearing is set for December 7.