As summer winds on and the House Select Committee on January 6th continues to lay out its evidence against the disgraced, twice-impeached 45th president of the United States, any doubt that Donald J. Trump attempted to defraud the US by trying to overturn a free and fair election is being methodically and definitively obliterated. Soon only the most fanatical Trump deadenders will be left insisting otherwise—histrionically, in hopes that the rest of us will believe that day is night, up is down, and urine is rainwater if they say it long and loud enough.
There will surely be more jawdropping moments before that drama plays out to its conclusion. (Stock up on Diet Dr. Pepper.) But while that is unspooling, another grave threat to representative democracy in America is quietly occurring out of the spotlight, one that is far less theatrical, but presents an equally worrying emergency.
Get used to the name “Moore v. Harper.” Because it might soon join the likes of Dred Scott v. Sandford, Plessy v. Ferguson, Korematsu v. United States, Citizens United v. FEC, and others in legal infamy.
CAUTION: OVERTON WINDOW IN MOTION
Narrowly speaking, Moore involves the right of North Carolina’s Republican-controlled state legislature to redraw voting districts for its 14 seats in the US House of Representatives after state courts stuck down the old map for its blatant pro-GOP gerrymandering. (A court-drawn map is temporarily in place for the midterms.)
But the implications of a decision for the Republican plaintiffs could go far, far beyond that. As NPR reports, in their appeal to the US Supreme Court, “the Republican lawmakers argue that the US Constitution’s Elections Clause gives state legislatures the power to determine how congressional elections are conducted without any checks and balances from state constitutions or state courts.”
I’ll repeat that. “Without ANY checks or balances from state constitutions or state courts.”
In other words, if the US Supreme Court rules in favor of the GOP in this case, a Republican-controlled state legislature could enact even more extreme gerrymandering to maintain its majority, could pass draconian voter suppression measures, could even pre-emptively give itself the authority to ignore the popular vote entirely and award the state’s electoral votes to whomever it wishes.
And I say “Republican controlled state legislature” very deliberately, because while a Democratic-controlled state legislature could theoretically do likewise, it is the Republicans who have, through the aforementioned gerrymandering, secured unbreakable control of the state legislatures in 30 of the 50 states. More pertinently, it also is the Republicans, not the Democrats, who have shown the most interest in implementing an outrageously anti-democratic, countermajoritarian system that would ensure permanent, unchallengeable control of US presidential elections going forward, in perpetuity, irrespective of the popular vote.
Indeed, Moore v. Harper is part of a long, deliberate scheme to achieve just that.
But wait, you say. How can such an insane concept possibly be legal?
Well, it’s questionable that it is. The argument for it hinges on something called the “independent state legislature theory” (or doctrine), often shortened to ISLT.
Ethan Herenstein and Thomas Wolf of The Brennan Center give a clear explanation, beginning with the Constitution’s delegation of power to the states to administer federal elections:
There are two relevant clauses. One is the Elections Clause, which reads, “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.”
The other is the Presidential Electors Clause, which reads, “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…”
As the progressive radio journalist Thom Hartmann notes, advocates of the ISLT consider this plain and simple and airtight. “Article II, Section 1 of the Constitution lays out the process clearly, and it doesn’t even once mention the popular vote or the will of the people… It’s not particularly ambiguous, even as clarified by the 12th Amendment and the Electoral Count Act of 1887.”
But Herenstein and Wolf note that there is “disagreement about how much power is delegated and to which state actors exactly,” beginning with the definition of the word “legislature.”
The long-running understanding is that it refers to each state’s general lawmaking processes, including all the normal procedures and limitations. So if a state constitution subjects legislation to being blocked by a governor’s veto or citizen referendum, election laws can be blocked via the same means. And state courts must ensure that laws for federal elections, like all laws, comply with their state constitutions.
Proponents of the independent state legislature theory reject this traditional reading, insisting that these clauses give state legislatures exclusive and near-absolute power to regulate federal elections. The result? When it comes to federal elections, legislators would be free to violate the state constitution and state courts couldn’t stop them. Extreme versions of the theory would block legislatures from delegating their authority to officials like governors, secretaries of state, or election commissioners, who currently play important roles in administering elections.
You may be saying to yourself, “But how can a state legislature be above the constitution that created it?” That is a good question. One that a lot of constitutional law scholars have asked, too.
Carolyn Shapiro, a law professor and founder and co-director of Chicago-Kent College of Law’s Institute on the Supreme Court of the United States, says the theory “doesn’t make any sense at all.”
The legislatures are created by constitutions. Their powers are defined by constitutions. The way those powers interact with other branches of state government is defined by state constitutions. Limitations on those powers are defined by state constitutions. The idea that there’s some kind of legislative power that is separate and apart from the ordinary constitutional limitations is really quite remarkable and lawless.
You may, dear reader, already be beginning to get the idea that the ISLT is not so much a coherent legal theory as it is a wildass gambit for the justification of autocracy by a group that, say, has diminishing popularity with voters, but control of a majority. And you’d be right.
ORIGINS AND ORIGINALISM
Davis reasoned that the word “legislature,” as it is used by the relevant provisions of the Constitution, does not refer exclusively to the elected body of representatives who make up the state’s legislative branch. Instead, it refers more broadly to any individual or body that possesses some part of the power to make laws within a state—what the Court referred to as the “legislative power.”
Herenstein and Wolf echo this rejection of the ISLT’s “narrow approach to the Constitution’s text,” pointing out “that the term ‘legislature’ doesn’t necessarily mean ‘exclusively the legislature.’”
The First Amendment, to draw a parallel, literally prohibits only “Congress” from discriminating on the basis of speech and religion. But we understand the amendment to apply to the federal government in its entirety, including the judicial and executive branches. That’s why, to take one example, a judge can’t close off her courtroom to atheists.
This is the only reading of the relevant US constitutional provisions that makes sense because, as legal scholars (and brothers) Vikram David Amar and Akhil Reed Amar explain in a recent paper, “state people and state constitutions are masters of state legislatures,” and not the other way around.”
The Court’s decision in Davis has been upheld many times in the 106 years since then. In 2000, during the Florida recount debacle, Chief Justice William Rehnquist raised it in his concurrence in Bush v. Gore, but it was almost uniformly dismissed as kooky and not worthy of serious consideration.
Back then, so was Donald Trump.
Also working against the ISLT is the matter of the framers’ intent—generally of great veneration by so-called “originalists,” but only when it aligns with their agenda. Herenstein and Wolf again:
(T)he framers did not trust state legislatures to run fair elections. They empowered state legislatures to administer federal elections only with great hesitancy.
This mistrust comes through in the Elections Clause, which reserves to Congress the power to override the abuses of power that Madison and his colleagues expected. Given the low regard in which the framers held state legislatures, it’s difficult to imagine they would want to free those lawmaking bodies from the existing constraints of the gubernatorial veto, the state constitution, and judicial review.
In a piece Shapiro co-authored for the Washington Post with Professors Leah Litman of the Michigan Law School and Kate Shaw of Cardozo Law School, the co-hosts of the podcast “Strict Scrutiny,” she and her colleagues write:
Since 2020, a mountain of scholarship has emerged thoroughly debunking the ISLT. Its historical bases are nonexistent. The Founders understood well that states could choose to have constitutions that constrain state legislatures, and that view has held sway in practice and law ever since. And state executive officials have also enjoyed considerable discretion to operate federal elections since the founding.
The ISLT is also wildly inconsistent with federalism. In our federal system, state courts have the final say over the meaning of state law; states also have considerable latitude in structuring their governments. The ISLT could transform cases about interpreting or applying state election laws into federal constitutional cases to be decided by the federal courts.
The theory would lead to a chaotic system in which states could not reliably hold unified elections for state and federal offices. Common state constitutional provisions guaranteeing that elections be “free,” “free and equal,” or “free and open” would not apply to laws governing federal elections, but would still apply to laws governing state elections. So, for example, if a state court relied on a state constitutional provision to strike down burdensome registration or voter ID requirements, those requirements would nonetheless remain in place for federal elections. The state would end up with two systems—one for federal elections and one for state elections.
Vikram Amar, dean of the University of Illinois College of Law, has even argued that ISLT is contrary to the originalists’ own view of the Constitution. (Not that they are ever bothered by a little thing like intellectual or ideological consistency.) Even if it were not, the question of why we feel biblically bound to a verbatim reading of a 234-year-old document drawn up by a bunch of white men—many of them slaveholders—who lived in a time when women were chattel, child labor was routine, and leeches figured heavily in modern medicine, is a much bigger one.
Even if one does believe that ISLT is constitutional, there remains the little matter of reconciling it with its obvious contradiction of the fundamental democratic principle of one-person, one-vote….which of course, the Founders did not really provide for, in a document that enfranchises only white male landowners, and establishes other anti-democratic institutions like the Electoral College and the US Senate.
As Thom Hartmann writes, the ISLT “literally gives state legislatures the power to pre-rig or simply hand elections to the candidate of their choice.” What could possibly be more un-American? In the Los Angeles Times, Laurence H. Tribe and Dennis Aftergut write: “Adopting the independent state legislature theory would amount to right-wing justices making up law to create an outcome of one-party rule.”
But this, of course, is precisely the kind of lasting authoritarian control that the contemporary GOP has long been seeking, with the eager support of three out of ten of our countrymen (and three out of four Republicans), and which I—and others—have been foaming at the mouth about for months. With Moore, they may find a quasi-legal way to achieve it, as effectively and bloodlessly and permanently as possible.
Vox’s Millhiser notes that the Supreme Court’s repeated rejection of the ISLT over the past hundred years is a pattern that changed only “after Republican appointees gained a supermajority on the Supreme Court at the end of the Trump administration.” In other words, the hidden agenda here ain’t really hidden at all.
This was the very heart of Trump’s scheme to overturn the 2020 election, by having state legislatures send their own (pro-Trump) electors, rather than those chosen by the popular vote in that state. But Trump’s act was retroactive; if the Court rules in favor of the GOP in Moore, the usurpation will happen in advance, making it much easier to execute and defend and much harder to prevent or reverse. It will also have the imprimatur of the Supreme Court.
WANTED: FIG LEAF
When Rehnquist raised it in 2000, the independent state legislature theory was correctly considered the province of the batshit political fringe. But you may have noticed that that fringe has lately taken control of the country.
Sen. Sheldon Whitehouse (D-RI) told the Washington Post: “This phony ‘doctrine’ is an anti-democratic Republican power grab masquerading as legal theory. It was cooked up in a right-wing legal hothouse by political operatives looking to give state legislatures the power to overturn the will of American voters in future elections.”
The theory, Whitehouse said, was wielded by Trump attorney John Eastman as he sought to “overturn the last presidential election, and it could plant seeds of chaos in time for the next one. The fact that the Court is even considering a case involving such an extreme idea shows how beholden it is to the right-wing donors who got so many of the justices their jobs.”
Among the most outspoken advocates of the independent state legislature theory is the Honest Elections Project, an alias of the 85 Fund, a conservative nonprofit linked to Leonard Leo, the former longtime head of the Federalist Society. The 85 Fund reported revenue of more than $65 million in 2020, according to a tax filing, and its relationship with the Honest Elections Project is made clear in corporate records in Virginia.
In the WaPo, Colby Itkowitz and Isaac Stanley-Becker write that the ISLT would “erode basic tenets of American democracy” by giving state legislatures “virtually unchecked power over federal elections,” and “(t)his immense power would go to legislative bodies that are themselves undemocratic, many advocates say, because they have been gerrymandered to create partisan districts, virtuallyensuring the party-in-power’s candidates cannot be beaten.”
The Week’s Grayson Quay notes that in states like Wisconsin, “Democrats can still win statewide elections—say, for governor or US Senate—but state legislative districts are hopelessly gerrymandered in favor of Republicans. If the Supreme Court sides with Moore, GOP-controlled legislatures in states like Wisconsin would have full authority to rig not only their own states’ legislative elections, but elections to the US House of Representatives as well.”
As Shapiro, Litman, and Shaw note, “there could not be a worse time for making our democratic process less democratic.”
Herenstein and Wolf again:
State constitutional bans on gerrymandering in Florida, Ohio, North Carolina, and other states could die, as could independent redistricting commissions in Arizona, California, Michigan and other states. Other state constitutional provisions—like the right to a secret ballot in many states—could also be wiped out. Delegations of authority would also be questionable, robbing elections commissions and secretaries of state of the power to make decisions, including in emergencies. And only federal courts would have the power to review gerrymandering or voter suppression claims relating to federal elections.
The nightmare scenario is that a legislature, displeased with how an election official on the ground has interpreted her state’s election laws, would invoke the theory as a pretext to refuse to certify the results of a presidential election and instead select its own slate of electors. Indeed, this isn’t far from the plan attempted by Trump allies following his loss in the 2020 election.
Not surprisingly, advocates of the ISLT, like Jason Snead, the executive director of the Honest Elections Project, are eager to distance themselves from January 6, and even from Trump and the Big Lie full stop, though that is plainly just a ruse. They are keen to present a faux reasonable, placidly academic face to their plotting, as when Snead argues that the ISLT “should be taken out of the context of Jan. 6 and what happened that day, which was absolutely terrible.” He also agues that the theory “is not a novel idea. We’re talking about first principles and constitutional text.”
Right. Except that it accomplishes the exact thing that Trump was trying to do on January 6th and in the months leading up to it—blatantly ignoring the will of the voters—only this time pre-emptively and with the veneer of legality.
CNN’s Zach Wolf is kind enough to link to a scholarly article that lays out the argument for the ISLT as made by Professor Michael Morley of the Florida State Law School. That article is cited multiple times in an amicus brief that The Honest Elections Project submitted to the Supreme Court in Harper. Morley himself, it should be noted, is contributor to the Federalist Society.
The Week’s Ryan Cooper writes that the ISLT “is quickly becoming dogma among Republican legal apparatchiks.” The article he links to, in the right wing Washington Times, is headlined, “State Legislatures Have Absolute Authority To Select Electors,” and begins with the Big Lie-friendly sentence: “The public has begun to appreciate the extent of election irregularities and vote fraud in the Nov. 3 election.”
So much for distancing from The Former Guy.
A WORD FROM THE JUDGE
The much respected retired federal Judge J. Michael Luttig, a conservative icon who gave compelling testimony before the January 6th committee, has been among the most eminent voices raising the alarm about Moore v. Harper. In a recent piece for CNN called “The Republican Blueprint to Steal the 2024 Election,” he wrote:
From long before Election Day 2020, Trump and Republicans planned to overturn the presidential election by exploiting the Electors and Elections Clauses of the Constitution, the Electoral College, the Electoral Count Act of 1877, and the 12th Amendment, if Trump lost the popular and Electoral College vote.
Republicans had every reason to believe there were at least five votes on the Supreme Court for the doctrine in November 2020, with Amy Coney Barrett having just been confirmed in the eleventh hour before the election.
If that is so, and it surely is so, the rush to get ACB on the Court takes on a new and chilling significance in hindsight. (She was confirmed just seven days before Election Day, while early voting was already well underway.) As does Trump’s replacement of key Pentagon officials in the closing weeks between Election Day and the certification of the results of the Electoral College.
But that was then. With Moore, Luttig argues, “Trump’s and the Republicans’ far more ambitious objective is to execute successfully in 2024 the very same plan they failed in executing in 2020 and to overturn the 2024 election if Trump or his anointed successor loses again in the next quadrennial contest.”
He adds: “The last presidential election was a dry run for the next.”
“Today,” Luttig writes, “(Republicans) are already a long way toward recapturing the White House in 2024, whether Trump or another Republican candidate wins the election or not.”
The Republicans are also in the throes of electing Trump-endorsed candidates to state legislative offices in key swing states, installing into office their favored state election officials who deny that Biden won the 2020 election, such as secretaries of state, electing sympathetic state court judges onto the state benches and grooming their preferred potential electors for ultimate selection by the party, all so they will be positioned to generate and transmit alternative electoral slates to Congress, if need be.
And then comes the thunderous warning:
Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.
NIGHTMARES ALL AROUND
Millhiser calls the ISLT “perhaps the gravest threat to American democracy since the January 6 attack.”
CNN’s Wolf calls it “a complete re-imagining of American democracy” under which “state lawmakers could, in theory, have new power to ignore voters and pick presidents.” He also notes that many on the American right are fine with that….so long as those lawmakers are politically aligned with them.
A complete re-interpretation of the Constitution to give legislatures superpower over elections would be extreme. But there is an increasingly open opposition to the idea that voters should be calling the shots. Politicians seem to have no problem favoring the idea that only voters they agree with should be calling the shots and voters they disagree with should be blocked.
Doug Mastriano, the GOP’s Big Lie-espousing, far right candidate for governor in Pennsylvania—who paid for buses to bring rioters to the Capitol on January 6th, and was present there himself—is one who has openly endorsed the notion of electors being appointed in defiance of the popular vote.
In a piece for The Bulwark titled “Ranking the Nightmares,” Jonathan V. Last writes that the right will surely—and correctly—argue “that we have never conducted a nationwide popular vote contest for president….But it’s also true that the right would never tolerate the reverse scenario—namely, the system repeatedly rewarding political power to their less popular opponents.”
Some federal protections would remain in place to preclude that; states are constitutionally prohibited from throwing out votes that have already been cast, for example, and a ruling for Republicans in Moore would not change that. But there is nothing to prevent a state legislature—in conjunction with a friendly governor—from doing that before votes are cast. In fact, even better, from the GOP’s point of view.
As The Washington Post Editorial Board notes, much-needed bipartisan reforms to the Electoral Count Act of 1887 could also mitigate the danger and provide some protections. But the prospect of Moore passing might also make it harder for the few remaining reasonable members of the GOP to go along with those reforms when the prospect of gaining a chokehold on governance is within the grasp of their more extreme comrades.
In an epic Twitter thread, Thom Hartmann lays out what he calls “The Nightmare Scenario SCOTUS is Plotting For the 2024 Election Takeover.” In it, he envisions Biden beating DeSantis (though it could just as easily be Trump) in both the popular and Electoral College votes. But then the GOP-controlled Georgia state legislature awards its 16 electoral votes to DeSantis anyway. North Carolina (with 15 electoral votes), Wisconsin (with 10), Michigan (16), Pennsylvania (20) and Arizona (11)—all states Biden won in 2020—quickly follow suit.
The movement of those 88 votes prompts CNN to declare DeSantis the winner. Massive street protests are met with violent attacks and even gunfire from right wing militias who are primed for just such a scenario. The police and military—rife with right wing sympathizers and allies (and even members of those militias I would add)—decline to intervene. Law enforcement agencies subsequently round up the “instigators,” who are charged with seditious conspiracy for resisting the Republican legislatures of their states. DeSantis is sworn in and declares a state of emergency, suspending future elections.
Hartmann argues that if the Supreme Court rules for the GOP in Moore, which it likely will, “the scenario outlined above becomes not just possible but very likely, and “the unwillingness of the Democratic governors of Michigan, North Carolina, Wisconsin and Pennsylvania to sign off on the Electoral College votes becomes moot.”
Under this circumstance DeSantis becomes president, the third Republican president in the 21st century, and also the third Republican President to have lost the popular vote election yet ended up in the White House.
GOP-controlled states are already changing their state laws to allow for it, and Republican strategists are gaming out which states have Republican legislatures willing to override the votes of their people to win the White House for the Republican candidate. Those state legislators who still embrace Trump and this theory are getting the support of large pools of right wing billionaires’ dark money.
Trump’s January 6th effort failed because every contested state had laws on the books requiring all of their Electoral College votes to go to whichever candidate won the popular vote in the state. That will not be the case in 2024. As we are watching, the Supreme Court—in collaboration with state legislatures through activists like Ginni Thomas—are setting that election up right now in front of us in real time.
We damn well better be planning for this, because it’s likely coming our way in just a bit more than two short years.
Next week in part two of this essay (can you believe it? I got more to say), we will look at the chances that the Supreme Court will actually affirm this crazy, un-American, democracy-destroying theory.
Spoiler alert: It will.