Proponents of the controversial independent state legislature theory believe that the U.S. Constitution gives state legislatures unqualified and absolute authority to certify presidential elections, 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.”
In addition, support is found in the 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.”
The references in the Constitution to “the legislature” seem to be specific to that governmental body and exclude other parts of the state government, such as the administration or the judiciary. Recently, that theory was rejected by the U.S. Supreme Court in Moore v. Harper.
The decision was celebrated in the establishment media as a severe blow to conservatives. However, I believe the ruling is a step in the right direction, albeit a small one.
It is now more likely, not less, that federal courts will review controversial state rulings that seem to undermine 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 standard established by Roberts (that state courts may not transgress the power vested in state legislatures) is a clear acknowledgment of the roles of state legislatures and the federal judiciary where federal elections are involved. We did not have that before the Moore decision.
The 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 the high court has effectively adopted a “low-calorie” version of ISLT. I concur.
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It is likely that there will soon be lawsuits designed to test the Roberts standard. Justice Brett Kavanaugh practically invited such cases so that the Supreme Court would have an opportunity to “distill that general principle into a more specific standard.”
This is a warning to state supreme courts. People who believe in the rule of law must be ready to take advantage of the U.S. Supreme Court’s new willingness to engage on these issues.
Here are a couple of state supreme courts that are probably on probation:
Pennsylvania Supreme Court
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 court ruled that signature matching could not be used to reject a ballot — a decision that completely eliminated the law as intended by the legislature.
Afterward, Pennsylvania Senate Majority Leader Jake Corman 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. The high court issued a disgraceful 4-3 process ruling (“lack of timely filing”) in an important four-part case brought by Trump.
You don’t have to take my word for it. Just read a few of the blistering statements made by the three dissenting justices in Trump v. Biden:
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 [Wisconsin Elections Commission] 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 [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
“We are called upon to declare what the law is. … Once again, in an all too familiar pattern, four members of his court abdicate their responsibility to do so.”
“Make no mistake, the majority opinion fails to even mention, let alone analyze, the pertinent Wisconsin statutes. … Instead of providing clarity, the majority opinion is, once again, dismissive of the pressing legal issues presented.”
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.”
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 Kavanaugh 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.
The views expressed in this opinion article are those of their author and are not necessarily either shared or endorsed by the owners of this website. If you are interested in contributing an Op-Ed to The Western Journal, you can learn about our submission guidelines and process here.
