The Independent State Legislature Doctrine and Election Subversion: Avoiding Misunderstanding

Dan linked to Jessica Levinson’s MSNBC’s opinion piece with the unfortunate title How the Supreme Court could make it legal to steal the next presidential election. While there is ample and justified reason to be concerned about how SCOTUS will handle Moore v. Harper, the recently granted case raising a claim based on the “independent state legislature” doctrine, whatever the Court decides in that case will not provide a basis for state legislatures to nullify the popular vote for president in their states after that vote has occurred in November of 2024.

Levinson’s penultimate paragraph includes this:

“Let’s imagine that in 2020, Florida residents vote to re-elect President Joe Biden. This has always meant Florida’s 30 Electoral College votes would go to Biden. But maybe the lawmakers there would want the Republican challenger to win. The lawmakers could decide not to certify the election results and instead submit their own slate of electors to the Electoral College who would vote for that Republican.”

Apart from the obviously mistaken reference to 2020 instead of 2024, there is a more fundamental error. The legislature in Florida, or any other state, does not have a power to certify, or not, the tally of the popular vote for president in the state unless prior to the casting of those ballots the legislature by statute has given itself a role in the certification process. It would be very bad policy if a state legislature inserted itself in the counting process in this way. A review of disputed elections in the nineteenth century show the danger of state legislatures giving themselves this role, a practice state legislatures thankfully abandoned in the twentieth century.

But even if a state legislature in advance of 2024 reinserted itself into the certification process, it still would be constrained by federal law in two key ways. First, it would be required to follow its own rules established in advance of voters casting ballots in November 2024. This is because under Article II of the federal Constitution, Congress has the power to determine the “time” for appointing electors, and in 3 U.S.C. 1 Congress has made what we call Election Day in November the time when a state’s electors must be appointed. Thus, the state legislature could not deviate from its own rules after Election Day in 2024 if it did not like the outcome that following those rules would yield. Nor would following those rules constitute a “failed election” within the meaning of 3 U.S.C. 2, the provision of federal law that would permit a state legislature to choose a new manner of appointing electors even after Election Day. Avoiding any potential pretextual abuse of this “failed election” provision is a key element of Electoral Count Act reform, removing any doubt about the capacity of a state legislature to repudiate the outcome of the popular vote for president in the state.

Second, as bad as it would be for a partisan state legislature to inject itself into the counting of the state’s popular vote for president, the state legislature–like any institution of state government–would be bound by Bush v. Gore and related Fourteenth Amendment precedents that require all ballots cast in an election to be treated consistently with “equal protection” and “due process” principles. A state legislature has no more power to manipulate the counting of ballots to achieve a dishonestly partisan outcome contrary to what an accurate count would show than does a state or local canvassing board.

No one should overlook these key constraints in all of the understandable consternation over Moore v. Harper.

Moreover, if a state legislature (whether Florida or otherwise) does not amend its statutory law in advance of Election Day in 2024 to give itself a role in the certification of the state’s popular vote for president, then the legislature will be even more constrained after Election Day. Given the power of Congress to set Election Day as the time for appointing the state’s electors, the state legislature is powerless to change its statutory law after Election Day to insert itself in the certification process if it did not do so in advance. Again, tightening up the “failed election” provision of 3 U.S.C. 2 as part of Electoral Count Act reform should remove any doubt about this. Most importantly, nothing that the Court could say about the “independent state legislature” doctrine in Moore v. Harper can affect this basic point about the explicit text of Article II.

ECA reform is essential whatever the Court decides in Moore v. Harper, and ECA reform can adequately handle the risk of any attempt by a state legislature to steal a presidential election. As I explained in my 2019 article Preparing for a Disputed Presidential Election, it is necessary to guard against the risk of a state legislature sending an alternate slate of electoral votes, contrary to the count of the popular vote, regardless of the invalidity of that alternative submission under 3 U.S.C 1, 2, 5, etc. If an alternate submission of electoral votes is sent to the Senate President from a rogue state legislature, what is necessary is for Congress to reject it. Clear rules of a well-revised ECA can provide for that. As long as the revised ECA requires Congress to count the electoral votes that are based on judicial enforcement of the rules as they existed in advance of Election Day, including the Fourteenth Amendment and other federal constitutional constraints that prevent deviation from those rules, no state legislature can steal the presidential election afterwards by forcing Congress to accept a submission of electoral votes that is contrary to the rules established in advance of Election Day. Jessica Levinson’s inaccurately alarmist piece misses this crucial component of the applicable analysis.

I have explained this previously (also here), and this past weekend I was on C-SPAN discussing Moore v. Harper, the independent state legislature doctrine, and how it does and does not affect presidential elections.

I hope that collectively, as we continue to discuss what the Court should do in Moore v. Harper, we can avoid unnecessary confusion (and alarmism) about its potential facilitation of election subversion.

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