Dem
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GOP
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Donald Trump just can't win in court, can he? Yesterday, the Independent State Legislature (ISL) theory, the fringe right-wing legal sophistry that was the basis of his effort to retain the presidency in 2020 after losing the election, was rejected by the Supreme Court by a vote of 6-3, with Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Amy Coney Barrett joining with the three liberals to form a majority.
The actual case in question was Moore v. Harper, with Moore being Speaker of the North Carolina House Thomas Moore (R) and Harper being private citizen and activist Rebecca Harper, who volunteered to serve as plaintiff. The specific issue being litigated was whether or not the state legislature could impose any district maps it wanted, even when the state's courts stepped in and said those maps were in violation of the state constitution. In support of its case, the legislature asserted that Article I of the U.S. Constitution, which includes the phrase "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," gives legislatures unchecked power over the conduct of elections, and that no court has any right to get involved.
This legal theory is patently ridiculous on its face; one need only have a passing familiarity with the phrase "checks and balances" to know that the fellows who wrote the Constitution would never have invested absolute power in any particular branch of government (and especially not in any particular branch of state government). And every time someone has tried to run to the U.S. Supreme Court with a variant of independent legislature theory (perhaps most notably in Smiley v. Holm in 1932), SCOTUS has given the thumbs down.
Nonetheless, if at first you don't succeed, you try, try again. There was some verbiage in a concurring opinion to Bush v. Gore (2000) that seemed to point in the direction of ISL, and more such verbiage in a dissent to Arizona State Legislature v. Arizona Independent Redistricting Commission (2015). Since Clarence Thomas, Samuel Alito and Roberts all signed on to that 2015 dissent, the plaintiffs in Moore thought they might be home free once there was a six-conservative majority on the Supreme Court. Ostensibly, all they needed was any two of Barrett, Kavanaugh and Neil Gorsuch.
Meanwhile, as Moore was marinating, Donald Trump and his enablers were trying to cook up a scheme that would allow him to be president without actually, you know, getting the most electoral votes. So, his now-disgraced crony John Eastman, supported by a few others in Trump's orbit, turned to ISL. Their general notion was that if legislatures have unchecked power over elections, then the various states where Trump lost, but where there was a Republican-controlled legislature, could simply set aside the election results and appoint electors as they saw fit.
Needless to say, Trump & Co. got zero buy-in from any of the accomplices they would have needed in order to pull off their scheme. None of the courts was willing to accept the Trumpy claims of election fraud. None of the GOP-controlled legislatures was willing to adopt new slates of electors by fiat. VP Mike Pence was unwilling to "set aside" one or more sets of electors on Jan. 6, 2021. And now, the underlying legal theory for all of this chicanery has been shot to pieces. Eastman, who is busily preparing for his disbarment, said yesterday that his ISL case for electing Trump in 2024 is now "murkier." That's the understatement of the year.
Undoubtedly, one of these days, someone will once again revive ISL. So many of these kooky legal theories are like Jason Voorhees or Freddy Krueger—they may appear to be dead, but one day, they'll be back. And in their various dissents, the three conservatives in the minority were quite clearly trying to lay the groundwork for that day, asserting that Moore v. Harper should never have come before SCOTUS, as the composition of the North Carolina state Supreme Court has changed, which means that the underlying dispute is moot. In other words, they take the view that the ruling in Moore isn't actually valid. Still, the day when someone tries to push ISL again is well in the future, as it's clear that—despite the chess-playing by the North Carolina legislature—Roberts is not a supporter, nor are two-thirds of the conservative justices who were not on the court in 2015.
And now the bad news. Maybe. Writing for Slate, as well as his own blog, election law expert Rick Hasen argues that the three conservatives in the majority snuck a "time bomb" into the Moore decision, namely that there is some verbiage in there asserting that while the legislatures don't have final say over elections, federal courts do. Hasen warns that could be a backdoor opening to allow the Court to impose itself on a future election, as it did back in 2000.
We pass Hasen's analysis along because he's an expert and it's worthwhile to know what he's thinking after a major case like this. That said, it is not exactly a "new" development that the Supreme Court thinks it has final say over election-related questions. After all, SCOTUS did determine the outcome of the 2000 election, and it did serve as the final arbiter in several of Donald Trump's election cases. Vikram David Amar, the dean of the University of Illinois College of Law, was among those who pointed this out yesterday. He remarked: "I see no evidence of interest by the Supreme Court to make mischief here."
As we noted yesterday, the Court still has a number of big decisions to announce in the next week or so, and conservatives are certainly going to get some news that will warm their hearts. In fact, Wednesday is one of the days customarily set aside for SCOTUS decisions to be announced (along with Tuesdays), so by the time you read this, it may well be the case that Christian web designers are legally allowed to reject gay clients, or that universities can't use affirmative action.
Meanwhile, for Donald Trump and his campaign staff, it's back to the drawing board when it comes to putting him back in the White House. Assuming he is the Republican nominee, they may strongly have to consider a strategy that involves actually earning more electoral votes than the Democratic candidate. Radical stuff, we know, but desperate times call for desperate measures. (Z)