Thursday, November 3, 2022




I was on Sky News television in Australia a few minutes ago, and one of the things we talked about was Hillary Clinton’s latest outburst:

“Right-wing extremists” have a plan already in place to “literally steal the next presidential election, and they’re not making a secret of it,” Hillary Clinton says in a video recently posted to Twitter.

In the video, posted by the progressive group Indivisible, the former first lady, senator from New York, secretary of state, and Democrat presidential nominee looks straight into the camera and says, “The right-wing-controlled Supreme Court may be poised to rule on giving state legislatures the power to overturn presidential elections.”

So is Hillary once again an election denier, this time preemptively? What on God’s green Earth is she talking about? She refers to a case that comes before the Supreme Court this term, Moore v. Harper, which is actually intensely interesting. Moore will interpret this language in the Constitution:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Moore case arises out of a series of events in North Carolina, where the Republican legislature came up with a map of Congressional districts following a census, and the North Carolina Supreme Court held it invalid under state law as an “extreme gerrymander.” But does a state’s judicial branch have the power to overrule the legislature, on any grounds? The Constitution doesn’t say “prescribed by…the government thereof,” it says “prescribed by the legislature.” So there is a tension between what most people think is a good idea, and what the Constitution actually says.

What does this have to do with the presidential election of 2024, which Hillary invoked? I assume her point is that the Constitution has a similar provision governing election of the president:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress….

Again, it isn’t the state government that appoints electors, it is the legislature. Hillary apparently imagines a world in which Republican-controlled legislatures do…what, exactly? The Moore case involves drawing of Congressional districts. Does she think Republican legislatures will vote to give their state’s electoral votes to the Republican candidate, regardless of how the state’s citizens voted? That is far-fetched at best, and, of course, Democrat-controlled legislatures would be vastly more likely to do such a thing, if it were seen as an option.

But in either case it would be a one-time gesture, assuming it passed constitutional muster. Since the legislators who voted to take a presidential election out of the hands of the voters would promptly be voted out of office.

So Hillary’s outburst is a paranoid fantasy, prompted by a lawsuit that poses an interesting, and potentially important, question of constitutional interpretation.

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