“How the Supreme Court’s decision on election law could shut the door on future fake electors”


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.’”…

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