A Footnote to “How To Fix a Lawless Supreme Court”

Two of the three law professors I quoted in this earlier post believe the Constitution wouldn’t permit legislators to overrule a state’s voters and select their own slate of electors for the Electoral College, after the voters had already voted for president (or possibly without allowing the voters to vote at all). Leah Litman and Katherine Shaw briefly but forcefully argue this in a law journal article, “Textualism, Judicial Supremacy and the Independent State Legislature Theory” [p. 4].

The Independent State Legislature Theory (ISLT) is a fanciful idea being pushed by some Republicans that would give state legislatures total control over their state’s Electoral College votes. Even some members of the Supreme Court seem to like the idea, since it would allow gerrymandered legislatures in states like Wisconsin and North Carolina to help elect Republican presidents, regardless of who won the presidential election in their state. This is what Litman and Shaw say about it:

We do not offer a direct critique of a potential scenario in which a state legislature, relying on Article II [of the Constitution], seeks to assign to itself the power to directly appoint presidential electors, including after voters have cast their votes. That would, without doubt, represent one of the most high-stakes, antidemocratic, and lawless contexts in which a version—to be sure, a fringe version—of the ISLT might be deployed.

But, as far as we understand the rationales for such a move—which was reportedly considered and urged by a number of T____ advisors and supporters, including Ginni Thomas, in the aftermath of the 2020 election—they do not entail claims that state entities have misinterpreted state laws. They rest instead on the distinct claim that state legislatures’ authority to prescribe the method of appointing presidential electors is plenary and unconstrained by basic notions of due process, democracy, or constitutional protections of the franchise. As profoundly misguided as such a claim is, debunking it is not our project here. Our focus is the independent state legislature theory, not its warped variant, the anti-democratic state legislature theory—which might be better described as the state-legislature-as-the-end-of-democracy theory.

I hope the Supreme Court Six agree with the professors (and the rest of the sane legal community) when the justices rule on Moore v. Harper in their next term. Given their recent track record, there’s no guarantee that they will.