Weiser & Wolf: “Responding to Trump’s Moore/Independent State Legislature Theory Claim in Trump v. Anderson”

The following is a guest post from Wendy Weiser and Tom Wolf of the Brennan Center:

At the end of his merits brief in Trump v. Anderson, Trump argues that the Colorado Supreme Court violated the federal Electors Clause when it barred him from the state’s presidential primary ballot. The argument is easy to miss: It’s the fifth of the brief’s five major arguments and only about four pages long, adding to its tacked-on, long-shot feel. It’s radical nonetheless. Trump is effectively trying to relitigate Moore v. Harper—which the U.S. Supreme Court decided just last term—via a call to the Justices to override a state high court’s straightforward interpretation of its own state’s statutory election code.

As regular ELB readers and Court watchers know, Moore affirmed that the U.S. Constitution’s Elections Clause doesn’t give state legislatures carte blanche to set the rules for federal elections. Instead, they’re bound by the same state law systems of checks and balances that bind them when they make all other kinds of rules.

Trump is asking the Court to use Moore to undo the Colorado Supreme Court’s rulings on state statutory law. His ostensible hook is Moore’s language holding out the possibility of federal review when a state court “transgress[es] the ordinary bounds of judicial review such that [it] arrogate[s] to [itself] the power vested in state legislatures to regulate federal elections.” Of course, the facts underlying Trump v. Anderson – an alleged insurrection by a former president and current presidential candidate – and the underlying Fourteenth Amendment claims to bar him from the ballot are extraordinary.  But there’s nothing extraordinary about the Colorado high court’s decision-making process on the state law points that draw Trump’s fire (concerning the duties of the secretary of state regarding candidate qualifications): It’s all standard statutory interpretation, using canons of construction and other rules of thumb that are part of every court’s toolkit.

The gist of Trump’s argument is that Moore transformed the U.S. Supreme Court into a super-court with the power to review de novo all state court rulings on state law matters concerning federal elections.

Of course, that’s not what Moore did. To the contrary, in affirming that state law checks-and-balances apply to state legislatures, Moore emphasized the importance of state court review and reasserted the supremacy of state courts on matters of state law within our federalist system. The Supreme Court made clear that courts doing the work courts ordinarily do is simply the constitutional status quo and shouldn’t raise Elections Clause concerns for federal courts. To the extent that Moore gives federal courts anything to police, it’s only extraordinary behavior that amounts to a violation of the judicial role. That’s an extremely narrow aperture for federal intervention into state law disputes, if it’s any at all. Moore just isn’t the blank check for de novo federal court review of state court rulings that Trump wants it to be.

It also can’t be. A legion of amicus briefs filed in Moore v. Harper really hammered home that any ruling that would strip away state court checks on state legislative activity would wreak havoc with the elections system. For a sampling, see briefs from folks like Rick, Ben Ginsberg, the League of Women Voters, bipartisan groups of election officials, and our Brennan Center team.  The dangers described in these briefs would become very real if the Court adopted Trump’s Electors Clause theory in Anderson; it’s just a zombie iteration of the so-called “independent state legislature theory.”

We don’t think the Court is going to head down the state law route to resolve Anderson. And—as we said in the amicus brief we filed in the case with our partners Protect Democracy, Campaign Legal Center, and the League of Women Voters and our law firm counsel, Jenner & Block—we don’t take a position on how the Court should ultimately decide, or for whom. But ahead of this year’s elections, we think it’s important to beat back any attempts to revive the misguided and dangerous independent state legislature theory. We cannot afford the chaos that would ensue.

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