How the Supreme Court’s decision on election law could shut the door on future fake electors
“It keeps the toothpaste in the tube,” one election expert said.
The Supreme Court’s rejection of a controversial election theory may also have another huge political consequence for future presidential contests: It obliterated the dubious fake elector scheme that Donald Trump deployed in his failed attempt to seize a second term.
That scheme relied on friendly state legislatures appointing “alternate” slates of pro-Trump presidential electors — even if state laws certified victory for Joe Biden. Backed by fringe theories crafted by attorneys like John Eastman, Trump contended that state legislatures could unilaterally reverse the outcome and override their own laws and constitutions to do so.
Mainstream election lawyers on both sides of the aisle denounced the theory in the months after the 2020 election. But because no court had ever directly ruled on the theory, its proponents were able to describe it as a plausible, if untested, interpretation of constitutional law. Eastman himself, currently facing disbarment in California for his actions to subvert the election, has claimed that he was engaged in “good-faith” advocacy on an unsettled legal question.
But by rejecting the so-called independent state legislature theory in Moore v. Harper on Tuesday, Chief Justice Roberts effectively extinguished it as a plausible path in 2024 and beyond.
“It keeps the toothpaste in the tube, in the sense that the theories that would give state legislatures unvarnished power has been rejected,” said Ben Ginsberg, a prominent Republican elections attorney who loudly pushed back against Trump’s attempts in 2020 to overturn his loss. “State legislatures thinking that they can just, if they feel like it after an election, replace the popular will with a slate of electors is as gone as ‘there can’t be any review of redistricting plans.’”
Tuesday’s opinion primarily revolves around an interpretation of the U.S. Constitution’s elections clause, which says that state legislatures can set rules for congressional elections in their states.
Though some on the right have interpreted the clause as giving state legislatures total authority to write and rewrite election procedures, without any input from governors or state courts, the Supreme Court rejected that notion.
That decision cuts the already-wobbly legal legs out from under Trump’s last-ditch efforts to remain in power. When Trump tried to subvert the 2020 election, his allies relied, in part, on a similarly fringe interpretation of the Constitution’s electors clause, which permits state legislatures to determine the method for appointing presidential electors. Eastman and other Trump allies argued that state legislatures could determine unilaterally that Trump was the rightful winner, appointing their own electors to be counted on Jan. 6, 2021.
No state legislatures embraced Eastman’s calls, and the effort collapsed when then-Vice President Mike Pence refused a simultaneous pressure campaign to single-handedly postpone the counting of electoral votes.
Tuesday’s decision contained just glancing discussion of the electors clause in its majority opinion, which was joined by liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson and conservatives Brett Kavanaugh and Amy Coney Barrett. But in soundly rejecting the independent state legislature theory, the implications were clear: “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” Roberts wrote.
“Today’s ruling makes clear, for example, that an elected state legislature cannot cut the people of the state out of the loop of picking presidential elections if the state constitution requires that electors to the electoral college be popularly selected,” argued Vikram Amar, a law professor at the University of Illinois, on a call organized by the group Protect Democracy and others who opposed the independent state legislature theory.
The elections clause and electors clause contain very similar language. The elections clause reads that the “times, places and manner” of electing senators and representatives “shall be prescribed in each State by the Legislature thereof,” while also granting explicit powers to Congress to do the same. The electors clause similarly says each state shall appoint presidential electors “in such manner as the Legislature thereof may direct.”
“The operative constitutional language in the two clauses is essentially identical,” said Michael Luttig, a former conservative federal appellate judge who advised Pence to reject those alternative slate of electors on Jan. 6.
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How the Supreme Court’s decision on election law could shut the door on future fake electors https://t.co/dtmk44peKI
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