the independent state legislature theory would turn that goal on its head and give state legislatures power over federal elections. there are admittedly nuances to the theory. one version that focuses on non-delegation to would essentially dissolve all 50 state election administration offices. another version that focuses on state constitutional provisions that lacks specific standards would have a narrower, although to still disruptive impact. we look forward to our witnesses guiding us through those nuances to today. make no mistake, for many supporters the theory is part of a broader plan to seize control of elections. in that sense, the theory is linked to the big lie to former president trump's scheme to violate the electoral count act. and to the election subversion bills we see around the country that shifts power away from professional election administrators toward politicians. that makes the theory dangerous and disruptive to american democracy. we hope to explore that point in today's hearing. we recognize the ranking member, mr. davis, for his opening statement. >> today's

so the word legislature has to be understood in the context of precisely what it is, that the legislature is being asked to do or being authorized to do by the constitution. >> okay, so, let's see, professor richard pilde, if you're still out there, i want to ask you about that point. the claim seems to be made now that if state legislature can act independently for any specific purpose they must be able to act independently for all constitutional purposes, including the primary purpose of ordinary lawmaking. is that right? >> professor? >> you need to unmute, rick. >> is that unmuted? >> yes, we can hear you now. >> sorry about that. i think your statement is correct. if we take congress, when congress proposes constitutional amendments, congress does not have to present those to the president. in fact the bill of rights was not presented to the president before it was adopted, or sent out to be states to be ratified. we wouldn't of course conclude that congress wouldn't exercise its powers to regulate federal elections, doesn't have the to present a bill to the president. i think that i

it seems to me that folks opposing the independent legislature doctrine has some fairly plausible and originalist arguments and election law gives a part to congress, too, in the second part of the clause and that's subject to presidential veto and judicial review. so, their argument is, look, when you've vested the power in state legislatures the same assumption, subject to the same law making processes and they say there were some in between the articles of confederation and articles of constitution and nobody seemed to think those were # when they adopted the same language in the articles of confederation. so, it's interesting that you've got some pretty plausible textualists arguments on both sides. on the conservative side, you have what paul sort of hinted at, which is a concern that state courts are taking the vague constitutional provisions and using it to override what the state legislature has done and sometimes doing it on the eve of elections and that seems to really be troubling some of the conservative justices. so, i'm -- particularly on the right side of the court, i'm

the constitution doesn't go to the states, it gives it to the state legislatures. if you were just looking at the text of the constitution, it would seem like there's a pretty strong argument that when the state legislature comes up with districting lines, assuming the election clauses fully applicable to districting lines as well as times of the polls being open and the like, it seems clear from the text of the constitution that if the state legislature sets that, maybe the state courts aren't in a position to second-guess that, applying state constitutional law or state other law. but a few years ago, the supreme court, in a case called arizona republican legislature versus the arizona independent districting commission came across the same text and basically said it was ok for arizona to give the redistricting authority, taken away from the state legislature and give it to an independent commission. that was a 5-4 decision. chief justice was in dissent along with justice scalia and justice thomas and justice alito. in some respects, the court is going to be revi

geoff: and this legal strategy is known as the independent state legislature theory.s has been described as a fringe legal theory, yet you have three supreme court justices, alito, thomas, and gorsuch, who have seemingly signaled support for it. and justice kavanaugh seems very interested. so tell us more about that, how this theory works. rick: and the question posed in moore versusarper is whether the legislature has the power to act alone, or it has the power to act only within the confines of how the state constitution gives the legislature power. so that sounds really abstract. let me make it very concrete here. the north carolina supreme court said that when the north carolina legisture drew congressional districts, it violated the state constitution. state constitution guarantees free and equal elections in noh carolina. partisan gerrymandering violated that, the state supreme court said. and now these republican gislators in north carolina who wanted to draw these gerrymandered districts are saying to the u.s. supreme court, the state supreme court doesn't eve

and he has got a scary that only state legislatures connect they are the only ones.u imagine if they could turn a seven republican one democratic, district into a 44 -- for democrats for republicans. that's what he was offering. it tells you what the mindset is. >> as a historical matter it's ludicrous that this was the original public amendment of the 14th amendment, at least as it pertains here or anything having to do with a reconstruction amendments were, when they talk about voting, right? like, they understood that they were giving the federal government power to do a lot of the stuff. there is also a fascinating amicus brief, that i want to feature as well, which is a very strange and rare one, which is all of the chief justices of each state in the union -- all 50 states. so, this includes, mississippi and alabama, and new york and california -- the full gamut of the politics of this great nation. all unanimously filing amicus brief saying, this is nonsense, absolutely don't do this. right, so this is a conference of two justices. they don't fall a lot of bri

to do, the republicans in the florida legislature were intending do. it's a pretty bad gerrymander. didn't go far enough. and so he said i would veto that which the republican legislature was going to do as not going for it. i'm going to veto. and they caved in and passed that which he proposed. judge has now said that given the situation in florida there's an amendment to the florida constitution requires redistricting to be done on a nonpartisan basis. a judge said that what the governor proposed or the legislature put into effect is, in fact, inappropriate. it has a particularly negative impact on african-american voters in the, i guess, the northern part of florida. and it is something we've seen republicans do in the present day. i mean, sam can talk, you know, the we describe in the book in north carolina, but it is typical of the problem that we have to call out the typical of the problem that we have to confront. you know too many are afraid of the people they say they want to represent you know, they want to pick their own voters as opposed to

there might be in the most grand high theory of the independent state legislature to say a legislature can do whatever he wants perhaps that's true, but it has to do it on the first tuesday of november and there has to be laws in place before the election. >> so the power and the congress to set the date is a constraint on the legislature acting richer actively? mr. muller: correct. >> that's reassuring. mr. gore do you agree? mr. gore: i do agree that the doctrine is not implicated by the format. i agree with professor ahlers --muller. the governing law for presidential election is state law enacted by state legislature prior to election day. further delays any concerns there might be under that doctrine. >> do you feel that the electoral reform act adequately deals with the rogue governor problem of a governor who refuses to certify? because we have people for any for governor who say i wouldn't have certified in 2020 is that addressed? that is something we try to address in our draft bill. mr. gore? mr. muller: mr. gore: -- failing to certify a slate of electors or certifying the in

the state legislature, he proposed his own map and. the result of that map is that in florida, a state, that is pretty close to 5050 democrats. and republicans. it's almost guaranteed that republicans will win 20 of the 28 florida seats in the house of representatives in. the november elections. so to kind of give an illustration of how how gerrymandering works in practice, maybe it's best to think of a of a hypothetical. i'm a college professor. i love thinking in an hypothetical. and it also kind of removes some of the complicating factors and some the messiness that you already that you always get with with real world examples. so, um, so let's imagine hypothetical completely made up mid-size american city, let's call it jacksonville san sachs and bill has a city government which is made up of an mayor. the mayor gets elected the voters of the city as a whole, and it has a three member city council who are elected from district. and those districts have to have equal populations to to one another. that's also keep things simple hypo

the state legislature. people have called this the independent legislature theory, which people?left who want their courts run by democrats to make decisions about election in the state, it could not be clear, you would not have a constitution today if the state legislature were not involved in making the decisions about the appointment of electors to choose presidents and vice presidents of the united states. that is number one. i want to take pennsylvania as an example. stick with me. in pennsylvania they have an election law. but they have a very difficult and complicated method for amending their constitution, one of t the oldest in america. to get an amendment past in pennsylvania you have to go through multiple steps, to change the election laws in pennsylvania you can't do it die -- can't do it by statute, point to the 2020 election lawyers working for the dnc and joe biden campaign brought scores of lawsuit to try to change the election laws to benefit their party, they largey succeeded. they form shop to pick states where they felt the courts would go their way, they fel

well that situation, you know, i was brand new to the legislature, you know wanted to to do something impactful. we had just had a ballot initiative. that would have completely banned abortions in the state. it had gone to the public and it had failed and i wanted to immediately bring another bill forward that that would have the debate in the legislature. i remember having a meeting with those who cared about this issue and just being shocked that the state's president of right to life was against bringing a bill and it was a man from my own district my other representative, but he also was my husband's cousin so that tells you how small south dakota is, but i was just so surprised by it that i you know went and immediately after the meeting emailed people back home and said they needed to call him and talk to him and then that made it. into the public news stories and i just realized immediately how bad i sounded like, i know it all that. i didn't even go to him and really discuss it with him instead. i decided to start emailing people back home who didn't have a context of what was

under the constitution, state legislatures determine the manner of appointing electors. for those that choose popular elections, congress fixes a date that an election takes place. as a matter of due process, the rules in effect on the day of the election are the ones that must determine the outcome. in our democracy, we do not change the rules of competition after the game is known. in respect state law process. from casting of ballots, canvassing, recount, and processes. it requires states honor those results when transmitted to congress the electors whose votes will be included in the january 6 tally. it also clarifies congress's role which is to receive the certificate so it can have the correct electors' boats and not second the popular vote count as tested in election recount and in federal and state litigation. electoral count reform act shows this can be done without creating any new legal claims or causes of action, merely assuring that when presidential and vice presidential candidates challenge the lawfulness of certificates that a state legislature or officia

that is up to legislature. if they want to alter the law, the job of the executive -- let me finish. are we not going to have a debate here? this is a man who supports ranked choice voting, supports people who are willing to do an assault on the state capital, the very time we are trying to pass a budget. i am not interested in litigating -- >> hold on. the question is male in voting. you want to get rid of mail in voting? >> my mindset and judgment does not matter in this regard. what i am telling you is it is not up to the secretary of state to write law and that is exactly what the current secretary of state and mr. fontes tried to do. >> you approve of mail-in voting? >> i do not care for mail-in voting that is why i go to the polls. but to that point sir what i want does not matter. >> if you don't want me interrupting you then don't interrupt me. >> will then stop it. -- well, then stop it. >> what if you are one of arizona's hundreds of thousands of older voters or disabled veteran or live in a remote co

it should be a matter of state legislature making these decisions. this a ban on abortion takesnd away power from women and from state. contrary to their promises over years and years about states rights. but more than a theoretical or hypothetical arguments about the powers of state legislature or the allocation of responsibility in our federal system, this law will have destructive and catastrophic consequences forve millions of women. it will impair the everyday lives of women and families across america. it u is not just a woman's issu. it is on all of us you say we will not back down. we will not stand for a nationa. ban on abortion. it is part of a tireless and seemingly boundless campaign against women's rights. but these attacks on reproductive rights and personal freedoms, no no limits. remember first, republican-controlled state legislatures moved to outlaw abortion entirely. forcing women suffering from atopic pregnancies to bleed out in hospitals. and refusing to care for child rape victims. now republicans are moving forward with plans t

their legislature turned for years to improving their system. and frankly to letting go people who were not doing the job well. the result was they had dramatically improved election functioning. they still acknowledged governor desantis has been pushing other reforms in florida successfully. they still acknowledge they have more to do. yet, the efforts they made from the 2000 election really did improve theirre system. >> were going to have to ended therapy. >> everybody else can do it too but we can all do appear. >> were going to have to edit there the senate hearing is getting underway. the senate hearing on the twitter whistleblower. a hearing before the senate judiciary committee. what to thank you for your time. collected for yield to the ranking member with permission, we are going to listen to an audio clip. it's the last phone call that she shared with her son while he was jailed. a pretrial detainee was never convicted of any crime. i want to warn those who are tuned in across the country, that this is a disturbing clip. and while thi

the constitution's election years clause, affects state legislatures. the authority to effect -- the constitution vested congress the responsibility to count each states electoral votes, and to certify and ascertain the winner of the presidency and the vice presidency. since 1887 the electoral count act is laid out as a procedure for states to certify their electors. it is directed congresses discharge of his duty to collect, count, and compile electoral votes. the states in congress have performed admirably well under the act, but the act contains some nba days they could -- to count electors accurately in a future presidential election. reforming the act is necessary and appropriate. congress to take the opportunity to safeguard the integrity of our presidential elections now before future disputes arise. several of the current acts shortcomings reflected silence on judiciary review. for example, the current act does not address federal judiciary review in this scenario when a governor fails to certify a slate of electors, or certifies the wrong slate

we didn't know how legislature. it's not this is not rocket science.n tuesday, wednesday, thursday when we had session? we started at a certain time in the senate. if they said we're starting at 11:30, we started 11:30 next -- the next day, on the floor at 1:00, we are on the floor. the other thing is, you weren't allowed to run committee hearings during session. very simple. i've advocated these things, so it's good to hear these things come up. the other thing is also good to hear, come up, i advocated this. our committee sizes are too large. and the other thing is if you go back 50, 60 years ago, members didn't serve on 234 committees. they served on one and they became experts on that committee. so, you know, we can simplify things for people having always been broken up into where they need to be at a certain time by simplifying the process. and so i'll just throw my two cents in there real quick. but one of the things that i think you mentioned, you know about the -- were talking about the executive branch and how large it has gotten, and congres

the independent state legislature theory. the supreme court has not adopted that theory but it has been floating around for a while. they floated the theory back at the time of bush v gore. the petitioners came to the court and said please state the decision below so our original districts can -- the election and the supreme court by a six-three votes. this is really important and i think they are going to win. we will adopt this theory. we should state the decision below. justice kavanaugh wrote an opinion saying this is a really important issue but it is too close to the election for us to interfere and that is why he --. no say but then the court grants the petition and so the case is going to be heard in the fall maybe december. what is going to happen? i am not an expert on this, i think we have an expert on the doctrine speaking after this panel. we know there are 4. pretty good prediction that they think they have a fifth vote already, likely being justice barrett. if you are betting you would bet we are going to have

he was elected to the virginia legislature for the third time. again, we see a pattern of looking at a way to try to continue his political career by using the legislature as a springboard. he got himself nominated as vice president by the whigs at their convention, their national convention. they nominated william henry harrison. and of course law -- defeated the incumbent martin van buren in november of 1840. harrison, as you know, died 32 days into his term. tyler became president, the image on the right is a romanticized picture of tyler receiving news of harrison's passing and his elevation to his presidency. harrison had declared his intention to serve only one term as president. tyler almost desperately wanted a second term. he did not make any claims that he would serve only one term, and after being banished from the whig ranks in september of 1841, he spent much of his time to try to put himself in a position to secure elections in his own right in 1844. -- very well in office, on june 26th 1844 he married the eu new york or 30 years yo

republican dominated legislature through the districts. then it vacated as unconstitutional under the state constitution, on the grounds of political gerrymandering violates the constitution. republican legislators are defending the redistricting under the elections clause legislature has exclusive authority to regulate the time, place, manner of federal elections. state courts you haveec no authority to interfere with that activity. the state constitution just has no application. state legend cape content legislatures or drug districts or otherwise regulating elections. that is the theory. as the independent state legislature theory by the supreme court has never adopted that theory. it has been floating around for a while. justice rehnquist floated the theory at the election t clause back at the time of bush. the petitioners came to the supreme court said please stay the decision below.de our original districts to be replaced at the election the supreme court that request by six -- three votes. justice was the dissenting opinion in justi

all three of us were in the legislature. we can politicize this goal we want to build our children need our help now and we have the money and that is what we should be focusing on. >> during the shutdowns and certainly over the course of covid it's not something that you wish for or hope for. it was a difficult time for the entire state but i can tell you there were opportunities not just to encourage but to actually require it and the speaker of the house declined. >> i don't want to get into the intricacies but there was never a bill that asked that question as it was withheld politics. a bill is not a bill and neither one of us voted to keep the schools closed. >> at the st. charles health center the pandemic rock to the system to its core. a one-two punch and deteriorating finances. services are threatened and extreme circumstances there could be closures to hospitals. what immediate steps will you take as governor to support hospitals? i was a strong supporter of maintaining a viable system that was statewide in partic

collect petitions to have a ballot -- a measure on the ballot in 2024 to override with the state legislature has done because they want to take it to the people, thinking they will win. that is going to happen in all 50 states. if you come from a state that you think is conservative, pro-life, expect some activity like that. do not take anything for granted. >> i want to give it to you. on the medical side, there are things that are emerging. talked about the dangers of that. >> the pill. why not just take this bill? it's easier, cleaner. i just read that half of the abortions now are through the bill. it's not just the bill, it's two pills. the first pill kills the babies. it disintegrates the placenta. you do this at home, it's convenient. you take the second bill, it's a baby. some places it's up to six months. some areas it's up to six months. women are doing this in the privacy of their home, without a doctor. we are going to see more of that. if it doesn't happen the way it's supposed to, the baby can be deformed and injured. it's terrific. if someone tells you there is an abortion pil

can remember specifically that i was working one president's day and i was in the georgia state legislature -- we were not in session that day and i was working, and i had a patient come in who had three of those prescriptions and they were from a physician down in florida. she presented them to me and then presented me with her kentucky drivers license, and here i am in georgia. i refused because i knew those strikes were going to be abused. host: representative buddy carter is with us until 8:00 eastern. we welcome your phone calls. (202) 748-8000 for democrats, (202) 748-8001 for republicans, and independents and others (202) 748-8002. we will get to your cosmo motel early -- your calls momentarily. the american medical association and other medical groups have come out opposed to the legislation, concerned about it. headline here, ama pharmacists like patient access to care and medication abortion. they say the language of your bill is vague, unclear whether it prohibits certain medications only when prescribed to induce abortions or whether medication is prohibited entirely, it has the

the republican legislature passed espy 2 o 2 so called the election integrity. the new georgia project voting rights group that has registered more than 500000 voters. since 2014 is dealing with fall out from the legislation. we're monitoring about 200 pulling locations. and in his new anti voter anti democratic environment, it is extraordinarily important that we have eyes and ears on as many calling locations as possible. and to fo, to c e o lou, georgia project during elections last me to finalize, congressional and state candidates. she and her team is busy helping people. navigate hurdles presented by the new voting laws are over 50 changes to georgia's laws that we have seen because the senate bill 202. they want to get rid of absentees. alanine and we're still seeing long lines. we're seeing polling locations that have been changed again without giving vote as a proper notice, and they've cut 100 days from the early voting timeline. so the ambition of espy 2 o 2 is to shave off votes at the margins because the former president lost in georgia by less than

i think all about the tennessee state legislature. in the capitol, there is a bust of nathan bedford forrest taken down a few years ago. this was put up in 1978. nathan bedford forrest was the first member of the ku klux klan. he led the massacre of black union soldiers who had already surrendered. he is someone who was ardent in his beliefs of white supremacist as he. and this bust of him was put in the tennessee state legislature in 1978. that 1870 -- not 1878. there is no way to understand -- that is like when i talk about the relationship between public policy and symbolism. putting up a bust of the first grand wizard of the ku klux klan and confederate army general, there is no way to understand that without having it reflect a set of ideologies, priorities and policies that would be pushed and espoused and advocated by people whose interest is, in some ways, represented by the head of this man they intentionally placed in the space. host: let's hear from don from new orleans. go ahead. caller: love the book festival, love c-span