Although there were some disappointments at the end of the Supreme Court’s term, the Court delivered an important victory for democracy when it firmly rejected, by 6-3 vote, the so-called “independent state legislature” theory. Proponents of the theory in Moore v. Harper had argued that state legislatures have nearly unlimited power under the U.S. Constitution’s Elections Clause to draw partisan-gerrymandered congressional redistricting maps that state courts may not review for compliance with state constitutional provisions. Drawing on the nation’s history of judicial review, the Supreme Court rejected this argument, holding that “[t]he Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.” ICAP had urged this result in an amicus brief on behalf of a bipartisan group of former public officials, former judges, and election experts from the critical swing state of Pennsylvania, arguing that such a broad reading of the Elections Clause would entrench partisan interests and undermine the American public’s faith in our democratic system.
ICAP continues to work in various states to sustain the rule of law and participation in democratic processes. Our ongoing case against the fraudulent electors and their co-conspirators in Wisconsin is now set for trial in September 2024. Our comprehensive model anti-paramilitary legislation—aimed at protecting the exercise of constitutional rights threatened by political violence—was the basis for a bill that was recently passed by the Oregon state legislature and is headed to the governor’s desk! We also supported Vermont’s new law prohibiting paramilitary training camps. And former Charlottesville mayor Mike Signer recently spotlighted ICAP’s groundbreaking anti-paramilitary work in a piece in The Atlantic.
Our work to ensure accountability for the January 6 assault on the U.S. Capitol also continues. When Oath Keepers leader Stewart Rhodes argued to the judge sentencing him for seditious conspiracy that he should be treated favorably for leading the Oath Keepers’ civic engagement and volunteerism, ICAP rebutted those arguments in a sentencing letter and article recounting the unlawful militia’s history of violent anti-government standoffs. Rhodes was subsequently sentenced to 18 years.
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On the litigation front, the summer has brought exciting new cases! ICAP is proudly representing the State of Hawaii in defending its newly enacted law prohibiting firearms in government buildings, polling places, schools, parks and beaches, and other sensitive places. The law was challenged just before its effective date of July 1, so we’ll soon be in court explaining why the prohibition does not violate the Second Amendment. We’re also supporting the State of Illinois and two cities in the state, which are defending challenges to their bans on assault-style firearms and high-capacity magazines.
Standing up for our most vulnerable citizens, we just filed suit in federal court in North Carolina on behalf of a disabled and formerly homeless veteran who was forcibly arrested under an unconstitutional anti-panhandling law and whose service dog was tased and later killed after running into traffic. The suit against the City of Gastonia and two police officers raises constitutional claims related to both the arrest and to the City’s extended campaign of making false, taunting, and disparaging statements about the veteran after he and others exercised their First Amendment rights to speak out about the incident.
In ongoing litigation, we’ll be arguing in August for a preliminary injunction to prevent South Carolina from prosecuting the NAACP and its members for the unauthorized practice of law simply for providing basic legal guidance to tenants facing eviction. And we’ll soon be arguing in the Fourth Circuit in our challenge to the unconstitutional pretrial detention practices in Prince George’s County, Maryland.
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June was Pride Month, and ICAP was happy to support Pride celebrations nationwide with guidance designed to help local organizers in the LGBTQ+ community address potential threats by unlawful private paramilitary groups. The guidance was featured on the Rachel Maddow show, and policy counsel Jacob Glick’s video explainer is featured on the Law Center’s YouTube channel. Jacob also recently appeared on a podcast to discuss the Proud Boys’ targeting of LGBTQ+ groups, drawing a direct line from the January 6 attack to the Proud Boy’s current views on gay and trans rights.
If you haven’t done so already, don’t forget to subscribe to Mary’s podcast with Andrew Weissmann: Prosecuting Donald Trump. Following the federal indictment of former president Trump, the Washington Post and Diane Rehm’s On My Mind podcast interviewed Mary to comment on the charges, and Mary and Andrew appeared on a virtual panel co-hosted by NYU’s Reiss Center on Law and Security and Just Security to discuss the development. Mary also authored an op-ed on MSNBC arguing that former president Trump may have solicited a crime of violence against former vice president Pence on January 6.
With the work ahead of us, ICAP is planning to add to its team. Check out our postings for litigators and an operations manager. To fund these new positions, we’d also be grateful for your financial support!
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Keep up with ICAP on Twitter via @GeorgetownICAP; and suggest what we should take on next via reachICAP@georgetown.edu.
With thanks for your continued support, The ICAP Team.
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