It’s now become a tradition at Senate Judiciary Committee hearings for President Trump’s nominees to become judges to echo a scripted answer about the 2020 election that avoids confirming Trump lost it — a litmus test of their loyalty. Even this weekend, Trump made multiple posts on Truth Social still ranting about the 2020 election being “fraudulent,” “cheated,” and “rigged.” Justin Smith, Trump’s personal lawyer who he has nominated to the Eighth Circuit Court of Appeals, joined other nominees in only confirming that President Biden was “certified” as the winner, but Smith isn’t just toeing the line. We know Smith is a Trump true believer because he actually tried to help overturn the 2020 election.
Smith earned his MAGA stripes working in the Office of the Missouri Attorney General under now-Sen. Eric Schmitt (R), who Mother Jones called “the most dangerous man” in the Senate for his “blood and soil,” Christian nationalist belief that the only true Americans are those descended from white Christian pioneers. D. John Sauer was there too, and he now defends Trump’s unlawful policies as his solicitor general. Together, the three of them advocated for some odious policies, including joining the effort to invalidate Biden’s 2020 win in four states.
In the Supreme Court case Texas v. Pennsylvania, Texas led the charge to invalidate the 2020 election results in Georgia, Michigan, Pennsylvania, and Wisconsin — all states that Biden won — based on a perverse and dangerous legal interpretation called the “independent state legislature” (ISL) theory. The theory suggests that when the U.S. Constitution empowers states to determine how elections are run, it means literally only the state legislature itself, and it magically invalidates any traditional checks on that legislative power from the other two branches. Thus, any changes a secretary of state or a state supreme court offers through interpretation of a state’s election law, like new procedures to keep voters safe during the COVID-19 pandemic, would be automatically invalid.
Smith, Schmitt, and Sauer rallied the cavalry to support Texas’s attempt to interfere with other states’ election processes, drafting an amicus brief on behalf of Missouri and 16 other states endorsing ISL and the overturning of the four states’ results. They argued that by treating election laws like every other law a legislature passes, the states were somehow “violating the Constitution’s separation of powers,” and as a result, they had “undermined the liberty of all Americans.” In other words, Missouri’s votes for Trump should count and Pennsylvania’s votes for Biden shouldn’t because Pennsylvania made it easier to submit mail-in ballots, as an example.
The brief echoed the hackneyed MAGA claim that voting by mail is an invitation for widespread fraud, despite no evidence to support this fearmongering assertion. Trump himself continues to enjoy voting by mail even as he repeatedly sows such misinformation about election integrity. Laughably, the brief even cites the Trump-aligned Heritage Foundation’s research, which found only 207 cases of fraudulent absentee ballot over a nearly 40-year period, warning without evidence that surely the study “undercounts” how often voter fraud happens.
Texas v. Pennsylvania was widely criticized as “outlandish,” “crazy,” “dumb,” “insane,” and a “far-fetched,” “Hail Mary” attempt to overturn the 2020 election results. The Supreme Court refused to consider the case, arguing that Texas and the other states supporting it had not proven that they are in any way affected by how other states conduct their elections. Three years later, the Court actually considered ISL in a case about state supreme courts weighing in on gerrymandered maps and rejected the theory.
When Justin Smith sat before the Senate Judiciary Committee and refused to answer who won the 2020 election, we have every reason to believe he wasn’t just appeasing Trump. Smith put pen to paper to try to dispute the results and reverse the outcome. The effort failed, but that doesn’t change that it was attempted. Smith is an open threat to our democracy, and he cannot be trusted to spend the rest of his life — long after Trump is in office — serving on a powerful court of appeals.
Why can't Trump's lawyer simply answer Senator Durbin's very straightforward question of who won the 2020 election? #StopJustinSmith #UnfitAndUnqualified @durbin.senate.gov
Zack Ford is the senior manager of press and editorial communications at Alliance for Justice.