“How a Fringe Legal Theory Became a Threat to Democracy”

Andrew Marantz for the New Yorker on the independent state legislature theory:

If the Supreme Court reverses the state-court ruling, it would be a vindication of the independent-state-legislature theory, or I.S.L.T., a line of legal reasoning that scarcely existed twenty-five years ago but has since travelled from the fringes of legal discourse to the centers of power. Some advocates of the theory interpret a clause of the Constitution to mean that state legislatures can run federal elections almost however they choose—drawing maps for partisan advantage, outlawing forms of voting (such as mail-in ballots) that tend to favor one party, and challenging election results on thin procedural grounds. Even when these actions violate state constitutions, the advocates say, state courts would be powerless to stop them. (It’s this lack of oversight that would render the legislatures “independent,” though a less euphemistic word for it might be “rogue.”) . . .

The independent-state-legislature theory ultimately boils down to a single word: “legislature.” It appears in two relevant places in the Constitution—the Elections Clause, which pertains to how federal elections are administered, and the Electors Clause, regarding the appointment of Presidential electors. Both processes are to be directed in “each State” by “the Legislature thereof.” Benjamin Ginsberg, the Bush-Cheney campaign’s national counsel, told me that, in 2000, I.S.L.T. “was never our main focus. It was one of many things we were flinging against the wall.” John Bolton, one of the Bush campaign’s lawyers, who later served as national-security adviser under Trump, told me, “I don’t know that we fully thought through the future implications. It was more, The clock is ticking. What else can we try?” . . .

To the extent that there is serious scholarship buttressing I.S.L.T., much of it has been promulgated by one guy, an associate professor at Florida State University named Michael Morley. He graduated from Yale Law School in 2003, clerked for a conservative circuit-court judge, and has since attended dozens of Federalist Society events. Morley did not submit an amicus brief in Moore v. Harper; reached recently by e-mail, he wrote that he has “consistently and publicly criticized attempts to cast doubt on the outcome of the 2020 Presidential election.” A law professor who knows Morley told me, “I don’t think he’s a total wing nut. I think he found an interesting academic argument that no one else was making, and the work he did on it has been important to his career, so now he can’t fully walk away from it, but he can’t fully defend it, either.” Law journals are full of provocative thought experiments. They all seem like fun and games until someone uses one to justify an insurrection.

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