act as the legislature. let me ask it this way. what is at issue? not any particular exercise of the state's legislature -- legislative authority such as it's ability to make time, place, and manner determinations. justice jackson: but whether the entity purporting to exercise that power qualifies as this particular state legislature. you kimm imagine we have two different state entities who claim to be the legislature for the purpose of elections clause, and both start acting as such. they set election dates. they have procedures. they issue competing maps. and set out different statements about when elections would be held. would that dispute, the dispute over which entity is really the state's legislature, be decided by federal or state courts, and which law would apply? mr. thompson: in state law that's a lot what was happening in arizona. where the independent commissioning -- justice jackson: state substantive constitution law? we are looking to the state constitution to decide -- mr. thompson: it's a

legislature means legislature and then you get caveat after caveat. includ gernor it includes referent and independent commissions. th they say the supreme cou can't do it but maybe they can further review or if it's procedural or non-abstract and the one thing we know there are no texalrguments anymore. with respect to the federal function argumt u were asking about smiley dead rejects it to death with the minnesota supreme court said. ey called it in a federal agency. the course unanimously reversed because here y acting as a lawmaking body which justice gorsuch from page60or its exact opposite of his example of the lesser case. it's about a totally different text. the text of article v is application of the state legislatures. the whole point of smiley ste jackson is to say this is different because it's a lawmaking system nt but also because of the word regulation. there ishabe no regulation and t ner existed and it's endogenous to the state constitution. it literally never existed. >> mr. mr. katyal can i ask you some question about the unries of

was no state legislature. so, it would have been impossible for the state legislature to adopt the they were scheduled that faded away once the state legislature had been elected. then that leaves nine that have regulations relating to -- justtomayor: there were only 13. mr. thompson: well, i'm giving the credit -- justice sotomayor: there wer colonies, counselor. i got six of them doing something that's ry to what you're saying, that seems like a fairly subsl majority to me. mr. thompson: your honor, i am going to get -- justice sotomayor: you can try to knom down one at a time, but you still with about sihem that can't be disputed. mr. thompson: i'm going to knock them all down with one. it will be 12-1 in my favor by the time i', your honor. justice sotomayor: yes, if you rewrite history it's easy to do. mr. on: i am not reqriting history, your honor. what we are saying is when it says "all elections's referring to the offices that were created by that constitution. it says "all free holders shall it's not

who's the legislature, right? what the constitution of the state says that gives you the por,ntity x, to be the one who is the legislature making this econs decision. if i'm right about that, then what is being delegated from the federal constitution inoyour power as a legislature, it is just delegating to you the decision about timce and manner, which is fine, but you have to do that consistent with the authority that you h an entity to make legislative decisions, and that comes from the state constitution. mr. thompson: and u.s. term limits says th inot right. justice jackson: all right. mr. thompson: that the premise of yoution is not right. justice jackson: all right. thank you. chief justice roberts: thank you, counsel. mr. katyal. mr. katyal: thank you, mr. chief justice, and may it please the court. for 233 years, states have not read the elections clause e way you just heard. there are two reasons tom. one is that when enacting legislation,he's no such thing as an independent state legislature. the other i

getting that done controlling the state legislature. all the original was created by the massachusetts state legislature it was gary's name then became attached to it. so if there's one thing i hope this book does is at least to some extent indicates age historical legacy, who is remembered chiefly for this. you know he went on to service and vice president of the united states under james mattis, even though he was one of the massachusetts delegates to the constitutional convention in philadelphia and was extremely influential in the creation of the bill of rights. gary, i think would have made a great presidential candidate as well if he were a younger man. and his age was pretty much the only thing that prevented him from being remembered as james mattis successor as president rather than for this unseemly practice. gary unfortunately passed away when he is serving as vice president under medicine and the rest of course is history. once i realized everything we thought we knew about the origins of gerrymandering was pretty much wrong

if the supreme court was to rule for the legislature it could go back and the legislature could draw new map and an important change in north carolina was that the north carolina supreme court that struck down the map was at the time, a democratically controlled court. that court is now controlled by republicans. even if the supreme court were to say you can delegate your authority to the state supreme court the state supreme court could look at that and say that is not partisan. host: voters are saying the legislature does not fall outside of the own rules, if they write the process that the courts in the states can oversee and overrule the legislature in the case of drawing district maps. guest: they say when you look at what legislature meant, it is a whole body that made laws but nobody intended when they drafted the constitution to mean that the legislature is not constrained by the state constitution, for example. host: she is a supreme court lawyer and a cofounder of scotus blog and her own howe on the court blog. 202-748-8001 is the line to call in for republicans. democrats,

the legislature does, stance. no matter how illegal is under state law. so that is really the state but it goes beyond just gerrymandering. the most extreme version were to hold in theory when it comes to the next presidential election state legislatures could do whatever they want in picking collectors for the presidency. so it has implications not just for north carolina not just for gerrymandering but for federal elections that could go all the way to the white house. host: u.s. constitution elections because reads the time aces and manner for holding elections shall be prescribed i each state by the legislature thereof but the congress at any time, by law, make such regulations. so how do you think the justices read this? is this a really important part of the constitution in this case? guest: i think it surprises people there is no affirmative right to vote in the u.s. constitution. the language that you just read states decide their own practices. this has nothing to do with state elections. it decides how t

they're happening in state legislatures and they're happening in places like wisconsin. and the font here may be a little too small for you to read on the screen there, but basically in the 2008 election, democrats won about 1.5 million votes in the wisconsinn statehouse, and republicans -- sorry, democrats won 1.5. republicans want about 1.2 for democrats then one a slight majority of the overall seats. in 2010 you had a republican wave, and a surprisingly the gop took control of the state legislature and this of course gave governor scott walker the opportunity to control the redistricting process. in 2012, under the new republican boundaries, the result of the popular vote was remarkably similar to what it was in 2008. 2008. democrats want a slight majority of the popular vote, 1.4 million votes to around about 1.2. but the result was very different. instead of the slight democratic majority of 52-46 that you got in 2008, in 2012 democrats, despite winning the popular vote, 139 seats to republicans 60. andnd that alignment has been pretty much glued in place ever sinc

the state legislature and. this, of course, gave governors walker the opportunity to control the redistricting process in 2012 under the new boundaries, the result of the popular vote was remarkably to what it was. in 2008, the democrats, a slight majority of popular vote, 1.4 million votes to around about 1.2. but the result was very different instead of the democratic majority of 52 to 46 that you got in 2008 in 2012. democrats despite the popular vote, won 39 seats to the republicans and alignment has been pretty much in place ever since in all of the elections that have been held here in wisconsin since the 2010 redistricting. and that creates the situation that i was cautioning against at the beginning the republicans who control the wisconsin state legislature know that their majority is safe the individual politicians who have been drawn into these safe seats know that their seats are and that all they have to do win reelection is to win over primary electorate. and so the wisconsin state legislature is

and getting that done and controlling the state legislature . so while the original gerrymander was created by the massachusetts state legislature it was gerry's name that became attached to it. if there's one thing i hope this book does is that it at least to some extent mitigates the historical led legacy of elbridge gerry who is remembered chiefly for this even though he went on to serve as president of the united states under medicine. even though he was one of the massachusetts delegates to the constitutional convention in a copy of. and was extremely influential in the creation of the bill of rights. gerry, i think would have made a great presidential candidate as well if you were a younger man today it was the only thing that meprevented him from being remembered as james madison's successor as president rather than for this unseemly practice. gerry unfortunately passed away as he was serving under medicine and the rest of course is history. and so once i realized everything we thought we knew about the origins of gerrymandering was prett

but the idea of the independent state legislature doctrine is that the legislatures are independent andhat the state constitutional provisions related to elections couldn't be applied to them by the state supreme court. i really want to emphasize how sort of radical this idea is. i mean, when sort of in high school civics, we learned about federalism, we learn about separation of powers and checks and balances, this rips all of that away. you're goingo have potentially the u.s. supreme court telling a state supreme court what it's able to do, and it's going to basically on more the state legislatures from their constitutions. reporter: who seemed to be the strongest proponents of this idea of the independent state legislature theory? >> on the court. it's hard to say who was strongest, i would say that most sympathetic appeared to be justices alito, thomas and gorsuch. and then as i mentioned earlier, the ones with the greatest skepticism and concern are kagan sotomayor and jackson. now that sort of leaves the chief justice, and justices cavanaugh and amy coney barrett, who really didn'

it specifically gives the power to legislatures and not to courts.s starts as a fringe theory during the 2000 election, with us it's gained prominence among conservative legal leaders. >> as julia was mentioning, the heart includes what's called the independent state legislature theory. what is that theory? >> sure. so it comes out of the constitution. the elections clause says that the rules for states to set rules regarding federal elections, the state's legislature really has complete sole authority. so the question is does it mean as it reads that no other state government, a governor, an independent commission or most importantly the courts, have any say whatsoever in helping to set those rules. let's say a legislature in north carolina or some other state draws a new congressional map. and in some way, it ed ofs the state constitution shouldn't the state courts in that state in some other state have a say. don't they have a role. shouldn't they be able to interpret the state constitution in light of what the state legislature has done. and the

then the legislature said it shouldn't be up to the courts. and in fact, that came all the way to the supreme court, where this court said, temporarily, they're going to side with the court, so they weren't able to go through with that in the midterms. now they're hearing an argument based on the merits of that case. and before the supreme court today, the leader of the north carolina legislature, moore, who we just heard from a minute ago, said it should be up to legislatures, no other body in the state, not the governor, not court, to be able to make the rules around elections. he's pointing to the election clause, he said that it specifically says it's up to the legislature. but katy, typically, that's been a pretty fringe legal theory, gaining prominence in conservative legal circles all the way to the point that the supreme court will have to weigh in on it. and based on the way they ruled just earlier this year, with alito leading the dissent, saying that in fact it should be left up to the legislatures, not the court, to make those rule

the state legislature is argui this violates the clause so in if in a state legislature theory providesible] they didn't do so free of the constraints of the state constitution, particularly the supreme court. the stakes are high from a [indiscernible] provision is -- depending on how the justices come out, this case can have substantial implications for our democracy. amy: let's turn to the liberal supreme court justice elena kagan speaking during oral arguments. >> in all these ways, i think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way governmental decisions are made in this country. and you might think it gets rid of all those checks and balances at exactly the time when they are needed most. because legislators, we all know, have their own self-interest. they want to get reelected. so there are countless times when they have incentives to suppress votes, dilute votes, negate votes, to prevent voters from having true access and true opportunity to engage the political process. amy: that is supreme court justice elena

but the republican state legislatures pushback and appealed.ept called the independent state legislature theory to ask the supreme court for unfettered power to set rules for voting and elections without state constitutional limits. the iss theory says that state legislatures have absolute power doesn't election rules and dispute outcomes. the supreme court began hearing arguments in more via harper this week. they were quite animated. on wednesday, after three hours of arguments, the court seemed divided. three justices, elena kagan, and kentucky brown jackson, all seem to reject the theory. on the other side, justices samuel lead, out near gore shake, and clarence thomas seem to favor independent state legislator theory. it was unclear where they remained in three stand. john roberts and kavanaugh and amy careening brett. as it gains detention of the last few months, legal scout scholars across the political spectrum have expressed doubt, even outrage, that the court would even consider adopting i.s. l, as it is referred to. during the argume

which is called the independent state legislature theory? could issue a narrow ruling or a broad ruling. at its narrowest the court would say state constitutions cannot constrain state legislatures so that a state judge whether it is at the state supreme court or a trial court judge would not be able to use the state's constitution to prevent partisan gerrymandering. there could be broader interpretations as well because this caused is not -- this clause is not a gerrymandering clause. this could potentially prevent state courts from applying state constitutional provions apply to all of the electoral system. absentee voting, primary elections, anything that could be ierpreted as the time, place and manner of congressional elections. >> isn't this theory what president trump's lawyers used to argue about keeping donald trump under the white house after the 2020 elections? >> that is not this particular clause. are they separate clause in article two that relates to presidential electors and the power of a state legislature to appoint them. i

the first one involves state legislatures and elections.my: the independent state legislature theory is the idea that the elections clause of the constitution gives the legislature the power to regulate the time, place and manner of federal elections. the most expansive reading of this theory would mean that only the state legislature could make those kinds of decisions so that state supreme courts, for example, couldn't jump in to supervise even if there were allegations that what the legislature was doing violated the state constitution. at the oral argument in early december, there didn't seem to be a majority in favor of this very broad reading of the independent state legislature theory. but there was support for sort of a middle ground, for lack of a better word, which would allow federal courts to step in when the state supreme courts sort of went too far afield. soledad: the second big case is a case of a website designer who does not want to do work for an lgbtq couple. amy: she filed a lawsuit in federal court arguing that colorad

one is that when an acting legislation, there's no such thing as an independent state legislature.er is that north carolina statutes authorize what the north carolina court did all focused on the first. petitioners idea that state legislatures created by state constitution are independent to them is wrong. it is rejected by the articles of confederation, rejected by the early state constitutions, rejected by the founding practice, especially new york, where judges vetoed a federal election bills. it's also rejected by this court in cases such as smiley and hildebrand. >> joining us now, today nelson, president director counsel of the legal defense fund, and melissa murray, the professor of law at new york university and msnbc legal analyst. professor mary, let me begin with you and your reaction to what you heard in court today. it's just an open mic, no specific question. i wouldn't presume that. go ahead -- >> this is the kind of question i like most, lawrence. [laughter] so this is a rollicking argument from start to finish. as you say, they independence day legislate the raid e

constitution gives absolute power beyond the reach of state courts and other laws a state legislatureregulate federal elections. john yang is here and joins us now for a closer look. it's good to see you. john: great to be here, geoff. geoff: so let's start with this colorado case, which centers on a dispute involving this website business owner laurie smith. she wanted to expand your business to include wedding websites, but she says she oppos same sex marriage on religious grounds, doesn't want to create websites for same sex couples. colorado law says she can't do it. you spoke with lori smith and the colorado ag. what did they tell you? john: well, the key to lori smith's argument is that she sees herself as an artist. she says that these websites that she designs are unique, each one different. this is not a template that she creates, just sort of plug and play. and so she says that as an artist, the government cannot compel her to convey a message she doesn't want to convey. lori: it's never about the person requesting it. there are some messages i can't create no matter who req

it's a case that revolves around an obscure legal theory that says state legislatures should have the final say on redistricting, not state courts. >> the blast radius from their theory would sew election chaos with a two track system with one set of rules for federal elections and another for state ones. >> reporter: north carolina republicans who lead the state legislature are challenging a ruling striking down a redits st -- redistricting map they drew. the idea state legislatures should have unchecked power to control election procedures and state courts and state constitutions have no role in checking that power. it's a concept that was first raised by chief justice william ranquist and four conservatives expressed interest in the issue, justice brett kavanaugh pushed back on it. >> your position seems to go further than chief justice ranquist in bush versus gore they would have a rule interpreting state law. >> reporter: some trump supporters seized on the theory in 2020 to argue state lawmakers in battle ground states had the power to over ride the will of voters and choose pre

so, the state legislature relying on the controversial independent state legislature theory has trumpupporters cited during the 2020 election and challenges. the liberal justices warning of consequences if there are no checks on the state legislature. >> this is a proposal that gets rid of the normal checks and balances. legislators we all know have their own self-interest. nay want to get reelected. and so, there are countless times when they have incentives to press votes. >> okay, so we are back with john burman and ellie and david. ellie, make sense of all of this. >> we will make independent state legislature theory interesting. it is important. and it is one of the great generators of absurd hypotheticals. >> this is like the dancing girls coming in holding up signs. that is probably the only way to make it interesting. the constitution essentially says it is up to each state's legislature to decide how they are going to run their elections. so, the question now is does that mean they can do whatever they want or can the state courts say that is crazy? what we are going to do is

they're relying on the independent state legislature theory, the idea that state legislatures shouldr to control election procedures and that state courts and state constitutions have no role in checking that power. it's a concept that was first raised by chief justice william rehnquist in the bush v. gore decision and while four conservatives have previously expressed interest in the issue, justice brett kavanaugh seemed to push back on it. >> the position seems to be further than bush v. gore where he seemed to acknowledge that state courts would have a role interpreting state law. >> reporter: some trump supporters seized on the theory in 2020 to argue lawmakers in battleground states had the right to overrule the will of voters. it likely would not extend to the issue of electors but some are warning it could be a slippery slope if the court finds in favor of the republicans here. >> it would make election-related decisions effectively unreviewable by state court judge, cutting neutral arbiters out of the process and allow extreme disenfranchisement of voters. >> the hours' long

this motion that a state legislature can't be checked by the state court system, when if the legislaturea different slate of electors than the voters have chosen. there is no way to check that in the state system. that is where it is problematic when we look back at recent history to what former president trump and his supporters were trying to do to overturn the election. >> goodness. enormous potential effects. jennifer rodgers, thank you so much. >> thank you. >>> tampa police chief resigning because of this body camera footage in which she flashed her badge. what else happened in those moments? stay with us. bye, bye cough. later chest congestion. hello 12 hours of relief.. 12 hours!! not coughing? hashtag still not coughing?! mucinex dm gives you 12 hours f from chest congestion and any type of cough, day or night. mucinex dm. it's comeback season. what's the #1etinol brand used most by dermatologists? it's neutrogena® rapid wrinkle repair® smooths the look of fine lines in 1-week, deep wrinkles in 4. so you can kiss wrinkles goodbye! neutrogena® not flossing well? then add the whoa

say that the state legislature should have that authority.y, courts, as well as governors and other state governmental bodies have had the ability to be able to put checks on legislatures to make sure that the laws that they're coming up with are actually coinciding with that state's constitution. right now this case is about the redistricting, but the theory could be spread depending on how the supreme court rules, it could also go to voter i.d.s, how the voting process works at all, and it wouldn't just help conservative state legislatures, it would essentially help whoever wins the party, whoever is controlling the legislature, then makes the rules. whether that be republican or democrat. >> the north carolina state supreme court ruled that these redrawn maps were unconstitutional. state republicans are asking for that unchecked power to change election law. explain the implications of that kind of power. >> they are radical and far-reaching. it means unlike every other area where state legislatures have to act consistent with the law and

, that means that the legislature basically exists by itself out in the world.hin the constraints of its own state constitution, that you can't go to the state supreme court when the state legislature does something and say, look, this clearly violates our state constitution and they need to go back under this theory you could not even do that. >> you said something i want to pick up on, chris, which this should not be being argued at the supreme court. let's talk about how and why it's being argued. >> we got some information earlier in the year that it did look like justices thomas and alito and gorsuch were interested in hearing that case and the justice kavanaugh was open to hearing the case. under the supreme court's rules, it takes four justices to agree to hear a case. that's where you would get the four votes to hear the case. and that's why they accepted it. the question of what they were going to do with it sort of is what led to immediately after they granted it in june a wide variety of voices from the left and the right saying, what are you doing? w

and this idea that state legislatures controlled presumably by republicans, they envision all state legislatures being controlled by republican majorities, because god forbid they do something like this and the democrats decide to play the game and flip the script on them. that's not contemplated. but this idea of having this majority of republican legislatures who would then be the final arbiter of whether or not, particularly and specifically at the presidential election level, they like or do not like the outcome of those -- of those -- the election in their state, they then have the power to say so. they then not only have that power to say it, but then to act on it. so, this is all part of a ongoing effort that has been forming for some time in quiet corners that now has, under the opening of trumpism in the party, into a full frontal assault on the constitution, the rule of law, and certainly the rights we have as citizens. >> and michael steele, what are the stakes for the united states supreme court in that before a decision is even made, it is clearly branded as a fringe legal theory em

if the supreme court was to rule for the legislature it could go back and the legislature could draw a new map and an important change in north carolina was that the north carolina supreme court that struck down the map was at the time, a democratically controlled court. that court is now controlled by republicans. even if the supreme court were to say you can delegate your authority to the state supreme court the state supreme court could look at that and say that is not partisan. host: voters are saying the legislature does not fall outside of the own rules, if they write the process that the courts in the states can oversee and overrule the legislature in the case of drawing district maps. guest: they say when you look at what legislature meant, it is a whole body that made laws but nobody intended when they drafted the constitution to mean that the legislature is not constrained by the state constitution, for example. host: she is a supreme court lawyer and a cofounder of scotus blog and her own howe on the court blog. 202-748-8001 is the line to call in for republicans. democrat

he made the leap to run for state seat in the legislature. what were you thinking and how does your family react? this is not in the grand scheme of things that long ago. and in the modern erahe when someone runs for congress the spotlight it's their family and all sorts of things. quick smile and say after my i had received some awards. i kind of put me on people's radar present south dakota outstanding young farmer within at few years after dad passed written south dakota leader. at that time are you senator was tom. he was the majority leader in the senate. and it was from south dakota and i was at a lot of his meetings. he end up appointing me too a board that oversaw all the federal farm programs in the state. so i was involved in policy and showing up with different people. asking my family they thought that wasatno strange. nobody's done that before. in our state the legislature beats for 40 days a year but you go in in january. you balance the budget, pass bills and go back home into your jobs. it was not that big of a commitment outs

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

we fixed it is also my time in i state legislature, how he made the decision in my life at a think a lot of people first ofid my name during covid, but it's important for them to note that wasn't my first radio, that wasn't my first challenge i went through. i did have a life before that and serve in congress, and some of those experiences along the way i think we'll give people a little better understanding about how i make my decisions when it comes to this public office that i hold today as well. >> host: "not my first rodeo: lessons from the heartland" opens with i think my favoriteot story of yours, because they pay me to do this, i've heard it but i bet you a lot of people have not at least outside out of south dakota have not heard the story. i want to go to your words and its chapter one and i thought it was fitting, just given how often you talk about this in terms of how it shaped you. chapternes titled the tapes, and you start the book like this ion't know why i'm doing this.s. he sai or the cackles of the tape recorder. i guess i'll go check cows. click, the tape stopped.

but it is a state with a very extremist legislature.used to have a majority democratic supreme court. cheri beasley was the supreme court chief justice. now it is a 5-2 republican court, and you have just had a major power outage because apparently someone was, you know, upset about a drag show, you know, shot up your electric grid. what is the state of republican extremism in north carolina and is it because north carolina is changing and can elect democrats statewide? is that what they're afraid of? >> well, first judges shouldn't even have to run in partisan races anyway. this is one of the things that they changed. they changed the law making these usually races partisan again, and they're the ones who have to rule on these voting laws. so that puts an air of favoritism over the whole process. the power outage here, we do not know the cause of this yet. we do not know who did it. we do not know the motive, but i do know that there has been a rise in hate speech, in threats, in violence against the lgbtq community, not only in north

it depends on who runs the state legislature, who the governor might be.nd so, you know, we should always want courts as a check and balance on the conduct of state officials, whether the executive branch officials or legislative officials, there should be a role for the courts. so, when you ask about a middle ground, i think there is one. i think that some of the conversation today in the supreme court was getting at that middle ground. whether you could keep states -- i'm sorry, state courts involved in this process. that strikes me not just as a sensible outcome, but also perhaps the likely outcome. >> we've got room for middle ground, but not for mischief. chuck rosenberg, thank you so much for joining us tonight. we certainly need your expertise. coming up, one republican with a complicated history with donald trump says trump is, quote, the kiss of death for anyone who wants to win elections. while other republicans, they are not so sure. the gop blame game is underway. finger-pointing after herschel walker's big loss in georgia, when the 11th hour c

democratic governor, republican legislature.e drew a gerrymandered map for the congressional seats with about 11 republicans and four democrats. and state supreme court under the state constitution said you can't do that. the legislature said, yes we can, the constitution of our state doesn't count. we get to do whatever we want. it sounds like a made-up story but that is the facts of this case. every historian, the founder of the federalist society, the lawyer who argued bush versus gore for president bush, all have weighs in here saying this would be a bad idea for democracy. it is not about one political party or another, it is about making sure that our system works. >> what will you be listening for in these arguments? >> well, for starters whether the vast volume of evidence about what james madison intend and what persuades some of the justices who say they're originalist and want to follow on what went on way back then, the evidence there we would say, i would say, is pretty strong and pretty solid. i think it is also th

and i think the legislatures see this as a partisan battle.pennsylvania. republican legislature, democratic-dominated supreme court. they see the state constitution to protect voting rights as a partisan attack on their power. that's why wee see this case here with lots of briefs filed on both sides because people understand the stakes are so high. >> rick, the new york sometimes is reporting that four supreme court justices have already expressed at least tentative support for the theory. how would you -- i know people don't like to handicap a final opinion by the supreme court. but what's your degree of worry heading into this? >> so here's what we know that. this issue has come up before. it came up in bush versus gore, the 2000 case that disputed the election then. three justices were in support of the theory then. we know from cases that came up in 2020 on the emergency appeals to the supreme court that there are three justices now who seem to be attracted to the theory. that's gorsuch, thomas and alito. i think we can safely say that the

republicans here are arguing that it's those state legislatures who have the time say.g they decide to election is not reviewable by state courts, is not even bound by state constitutions. that's a potential leap here. if the supreme court agrees with that stance, it could drastically expand the power that these state legislatures have in addition to the way elections are run, also redistricting. that's the big issue in this case. plus there are some extreme interpretations that some conservatives have argued that they could prove presidential electors, and overrule a popular vote. who knows what we'll see in a final opinion. the more extreme theory was pushed by trump supporters, as they argued for that position that state legislatures could decide the electors in beetle ground states. erica and jim, this could have extreme consequences for the way elections are run. just in the day-to-day procedure, absentee ballots. if the [ sides with the republicans here, that could give unchecked power to state legislatures over election procedures. that's what's at states here. m

they were a total lock to stay in control of the state legislature.n top of that, they were really confident that they were going to get rid of the democratic governor in both of the states in both kansas and wisconsin. thereby, they would get full republican control of both those states. republicans fully expected that at the end of the day by this point right now, they would have not only the governor's office but the whole state legislature in both wisconsin and kansas n wisconsin and kansas, the republican candidates for governor both lost. to democrats. so the republicans were not able to get full control of the states even though they fully expected to. it was actually the democrats in this election who got full control, who got the governorship and both houses of the state legislature in four states where they didn't have it before. four states you can remember with this easy device. because it's four states that start with m. massachusetts, maryland, minnesota, michigan. in all four of those states, the democrats did not previously control the

we are supposed to be like a state legislature, that is the 64 dollar question. it really is a roadblock. we have a bill coming up today, where you all finish on railroads and strikes. i want to add, i've got some cosponsors on my bill, thanking. i want to add some compensation improvements for us as members of congress to that bill. i know i'm going to run headlong into this. it does ultimately come down. now, we talked a lot about single subject, colorado, we have a subject pool. we have a tight title, or an open title. you can add things like crazy. having been in front of a parliamentarian on a number of things that i wanted to get into bills, i know that there is a element to this. i appreciate a lot of the things that you're talking about, and i do think it would make us, in the congress, look more like a lot of the state legislatures if that is what we want to do. i think your point is, well that is what people expect. so, that will be the conversation that we have. i appreciate that you all want to bring these things up as we head to the republican house.

this republican state legislature in north carolina is arguing that the legislature and the legislature authority to set the time, place, and manner of federal elections. when you take that to its extreme, which they are arguing, the state court has nothing to say about it, the governor has nothing to say about it, and you see the potential problems from the actions of this very republican legislature in the past. passing voter i.d. laws that even an i.d. at the university of north carolina doesn't work. taking away provisional ballots at polling places. shortening voting time. thankfully, a lot of their schemes have been overruled by the federal courts. i've been able to stop a number of them with gubernatorial veto. but this would allow state legislatures alone, across the country, to set the rules for our federal elections and that's dangerous. >> governor, could this change the landscape of 2024? >> absolutely. taking it to the place where i think many of them would want to go, and if you look at donald trump's plan, being able to ignore the popular vote in a state, and change presi

that argues state legislatures have absolute authority over federal elections and electoral maps.ore the start of oral arguments, eric holder now chairs the national democratic redistricting committee, released a statement saying in part, north carolina republicans are using a truly fringe legal theory to try to undermine our system of checks and balances, an extreme and dangerous move that held them accountable for violating the state constitution. that should not be a difficult decision for the court in favor of the respondents. one that would protect voters against extreme efforts to manipulate federal elections. anything less than that is unacceptable. joining us now is the man himself, eric holder, former u.s. attorney general and now chair of the democratic redistricting committee. mr. holder, thank you so much for being here even if the subject matter we're talking about should be ringing national alarm bells. what do you think is going to happen here on the court? it seems as if it's possible that they take a more minimalist ruling on this. but that sounds like it could st

unchecked power to state legislatures on how congressional elections are conducted. in the "daily beast" out this morning where you note the decision to hear the case raises the likelihoods that the conservatives may again be looking to overturn precedent. if i understand this correctly as the person who is not a lawyer, this could essentially do away with all checks and balances and that means the ramifications go far beyond congressional elections and gerrymandering. >> that's exactly right. i mean, first of all, the chaos that could result just in gerrymandering is enormous and you're exactly right, there would be no checks and balances because the prove nents of this theory read the constitution as giving sole power over elections along the states to the legislature. what that means is not only can state courts not review that matter, even if it violates the state constitution, it would mean that things like independent commissions set up to look at redistricting, governors' vetoes, all that would be out the window, and, of course, very famously john eastman, one

who had been in the legislature for sometime. he immediately jumped and with an issue that he thought could allow him to build a name and reputation. what he did was he introduced a resolution censuring virginia senators, richard branch and william brent giles. because they had disobeyed the virginia legislature which had instructed them to vote against the recharter of the national bank. this is an interesting episode and tyler's life. as i said, he graduated from college a bit full of himself. brimming with self confidence. but it is resolutions failed. the legislature immediately tabled their resolutions which it affects killed them. the legislature adopted another several resolutions. they still centered the two senators. but they adopted someone else's resolutions. tyler realized that that time that his colleagues didn't really care too much to his dad he was. they didn't care that he was full of himself, that he had a lot of self confidence. and really, for the first time in his life tyler have been told that something he h

"what simulate that the legislature should not be drunk the maps regardless what a court may find. >>is up to the constitutions very specifically in respect to the choosing the presidential electors will be chosen amenity cited by the state legislatures think the issue that the supreme court is hearing is to what extent do the other institutions within a state have a say in this legislature start a creature of the state constitutions and so the becomes a very interesting legal question and i don't have the answer for but is a very legitimate question because that was a central question it was raised of the constitutional convention how we choose a president and a number of different provisions offered and one was to have the governors sit down and elect editor going gets tough that was much too small of a group and you can have all sorts of shady deals going on. i discussed having the president elected from the entire country but theng you had the problem with rural areas and the system probably ultimately created i thank you so aim brilliant systm and the question before the court is

the other side says that that is a delegation to the legislature, but the legislature can mean anythingte, so the gubernatorial veto and judicial review. so the immediate question is whether this house map in north carolina stands, but there could be broad or consequences as we get toward 2024. paul: dan, some of the commentary on this from the political left in particular has been, i should say, hyperbolic in the sense saying democracy itself is in jeopardy if they, the justices read the election clause as favoring the state legislature dominating, having the dominant say over election law. or it even could empower donald trump to help him win the election in 2024. is any of that credible? >> no, it really is not because when they talk about our democracy in terms of elections, what her really suggesting paul, is that state courts should be allowed to determine the election laws. in other words, there are two competing tensions here. either state legislators are responsible for -- legislatures are are responsible or state courts should be responsible. and i think the democrats have dec

congress could come in and legislate around state legislature. that's nonsense given how impossibly hard it is to amend the constitution or federal courts could step in and intervene. the way to go about this is to leave the power to the states and have governors and state courts with the ability they were given and exercised in the united states. this would be a quite profound shift. >> in terms of what we're hearing about these criminal referrals, cnn is reporting these are main organizers and leaders of the attack being considered. in your mind, who falls into that category? >> you know, it's always a little risky to start speculating as to who is getting investigated. if you watched the hearings over the course of the summer and heard the statements made, certainly the former president, john eastman, mark meadows, rudy giuliani, the president's lawyer at the time, all in some way are at least on the radar of the january 6th committee for possibly false statements to law enforcement. those seem to be the names that kept coming up in the hearin

as such, the legislature could be as explicit and as hostile as it wants. it wouldn't matter because it's not part of the right in the first place as long as the as long as there's otherwise valid law like drug laws and things like that. the quakers think point. so students are always asking this, you know, so you're going to make quakers? yeah. usually war would be very short, but it would still interesting to see them fight. so think about what the we have a why do we have a political community look the most basic thing a community is it's a mutual defense part of you. i won't attack you. you don't attack me. i'll fight for you. you fight for me and we'll fight against our common enemies. that's the most basic thing is it's a mutual defense pac. and the quaker says effectively, i want to be part of that pact and i won't. the quaker doesn't have to be part of the pact you an inalienable natural right to immigrate is to leave. but if you're going to be part of the club, you got fight. if asked to now we can say look, you can do something else. you're probab

>> yeah, this case is all about something called the independent state legislature doctrine.ge theory that north carolina republicans are trying to use to make sure that the north carolina republican legislature has the sole responsibility of doing redistricting in the state and excluding from that determination the state court system. it is something that if the supreme court goes along with it, would really up-end our system of checks and balances, and for that reason i am extremely concerned. it is a fringe theory. this is something that if the court, i think, does the right think, you should have a 9-0 opinion by the court that rejects this notion os independent state legislature doctrine that has been rejected by conservative scholars, by practice renting lawyers, former republican lawyers and a conference of state supreme court justices as well. this is a very, very dangerous theory that would put our system of checks and balances at risk. >> there are a number of democratic senators who actually filed a brief urging the supreme court not even to hear the case. so there