The new, low-calorie "Independent State Legislature Theory"
Recently, a controversial theory was rejected by the U.S. Supreme Court in the Moore v. Harper case. That decision was celebrated in the main stream media, which treated it as a severe blow to radical conservatives. However, I believe that the ruling is a step in the right direction, albeit a small one.
Proponents of the controversial Independent State Legislature Theory (ISLT) believe that the U.S. Constitution gives state legislatures unqualified and absolute authority to certify a presidential election, and those legislatures can even ignore conflicting state court decisions. Supporters of ISLT cite Article I, Section 4, Clause 1 of the Constitution (The Elections Clause):
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof... [emphasis added].
In addition, support is found in the Presidential Electors Clause (Article II, Section 1, Clause 2):
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... [emphasis added].
The references in the Constitution to "the Legislature" seem to be specific to that governmental body, and not other parts of a state government, such as the administration or the state supreme court.
I am not disappointed by the ruling because it is now more likely, not less likely, that federal courts will review controversial state rulings that seem to alter the intent of legislators. This is evident from the words of Chief Justice John Roberts, who wrote on behalf of the majority: “...state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” For this reason, I see the high court’s ruling as a small victory.
The Roberts standard (that state courts may not transgress the power vested in state legislatures) is a clear and significant acknowledgement of the role of state legislatures, and of the role of the federal judiciary, when federal elections are involved. We did not have that before the Moore v. Harper decision. The U.S. Supreme Court is effectively saying that state courts must be ready to defend their decisions as they pertain to federal election rules and procedures.
Indeed, some legal observers believe that the high Court has, effectively, adopted a low-calorie adaptation of ISLT. Republican attorney Jason Torchinsky filed an amicus brief that urged the high court to approve a limited version of the theory, and that is exactly what the court did, according to election law attorney Richard Hasen. He believes that the Court adopted a “milder version.” I concur.
If the next election is close, it is likely that there will be lawsuits that are designed to test the standard established by John Roberts. Justice Kavanaugh practically invited such cases so that the Supreme Court would have an opportunity to “distill” the Roberts standard “into a more specific standard.” His words are a red flag warning to state supreme courts.
Here are a couple of state supreme courts that are probably on probation
Pennsylvania Supreme Court
At midnight on an early Sunday in October 2020, Secretary of State Kathy Boockvar asked the Commonwealth’s high court to back her up in a dispute with candidate Donald Trump. Boockvar felt that most mail-in ballots should be accepted and counted, even if the signatures on them did not match the registration signatures. Naturally, Trump objected.
Incredibly, the high court agreed with Boockvar, and even took matters a step further. The high court ruled that signature matching could not be used to reject a ballot— a ruling that completely eliminated the law as intended by the legislature.
Afterwards, Pennsylvania Senate Majority Leader Jake Corman (R., Centre) said the legislature did not “contemplate that Secretary Boockvar would interpret the statute in a way which would result in signatures required on the mail-in ballots being meaningless.” It is very possible that this departure from the legislative standard caused Trump to lose the election.
Wisconsin Supreme Court
The Supremes in Wisconsin were just as bad. Wisconsin’s high court made a disgraceful 4 to 3 process ruling (lack of timely filing) in an important 4-part case brought by Donald Trump. You don’t have to take my word for it. Just read a few of the blistering statements made by the 3 dissenting justices. The quotations are from Donald J. Trump v. Joseph Biden, 2020AP2038 2020 WI 91 (Supreme Court of Wisconsin):
Justice Rebecca Grassl Bradley:
How astonishing that four justices of the Wisconsin Supreme Court must be reminded that it is THE LAW that constitutes ‘the rulebook’ for any election— not WEC guidance— and election officials are bound to follow the law, if we are to be governed by the rule of law, and not of men [emphasis as written].
Surely the majority understands the absurdity of suggesting that the President [Trump] should have filed a lawsuit in 2016 or anytime thereafter. Why would he? He was not ‘an aggrieved party’— he won.
Justice Annette Kingland Ziegler:
LACHES DOES NOT AND SHOULD NOT BAR THIS CASE [emphasis as written].
Once again, the majority imposes its definition of laches, which is tailored to its judicial preferences rather than based on well-established legal principles.
The respondents cannot demonstrate that laches bars a single one of these claims, and, even if they could, the court could still and should exercise its discretion to hear these issues.
Chief Justice Patience Drake Roggensack:
Once again, four justices on this court cannot be bothered with addressing what the statutes require to assure that absentee ballots are lawfully cast.
I have a feeling that the conservatives on the high court know that state courts were abusive after the 2020 election, and they want to be more active, if necessary, in 2024.
The Independent State Legislature Theory, as significantly revised by the Moore v. Harper ruling, might be a factor in the 2024 election. It will depend on the sincerity of justices such as Roberts and Kanvanaugh, and their willingness to challenge aggressive state supreme courts. It will also depend on the willingness of individuals to file difficult and costly lawsuits whenever state courts weaken legislative standards in federal elections.