GUEST COMMENTARY - Soon after news broke that Donald Trump had been indicted for trying to overturn the 2020 presidential election, his defenders took to the airwaves to offer legalistic excuses for his actions. Among the defenses they’ve floated is the idea that state legislatures have the authority to reject the will of voters. But this defense is nonsense, as the Supreme Court just underscored in June.
Trump is charged with perpetrating a conspiracy made up of many interconnected schemes, all aimed at overturning the legitimate results of the election. One of those schemes involved trying to convince state legislatures to nullify popular votes that Trump lost and instead to submit to Congress their own slates of electors claiming (falsely) that Trump had won.
Trump attorney John Lauro argued on CNN that this scheme was not improper because “state legislatures have the ultimate ability to qualify electors.” According to Lauro, “Under Article II, Section 1, Clause 2 [of the U.S. Constitution], the actual responsibility for qualifying electors is in the state legislatures.”
This purported defense — a version of the so-called “independent state legislature theory” — is based on a misreading of the Constitution’s Elections and Electors Clauses. Those clauses direct states to regulate federal elections — including the voting process and the manner of appointing presidential electors — while empowering Congress to override state policy and enact federal election laws itself.
Proponents of the independent state legislature theory claim that these provisions free state legislatures from state-level checks and balances when they make rules for federal elections. Or, as Mr. Lauro argued, the Electors Clause would permit state legislatures to appoint presidential electors in whatever manner the legislators see fit, even if that means overriding the vote in their states, their state’s legal requirements for selecting electors, and other guarantees in state constitutions — not to mention federal statutory and constitutional law.
That argument is dead on arrival. There is no such thing as an “independent state legislature” and there never has been. The Supreme Court affirmed as much just five weeks before the indictment, when it flatly rejected the independent state legislature theory in Moore v. Harper.
In that case, several state legislators asked the Supreme Court to approve their extreme partisan gerrymander of North Carolina’s congressional map, notwithstanding its flagrant violation of the North Carolina Constitution. A broad cross-partisan coalition called out this request for the sham it was. And the Supreme Court agreed. Writing for a six-justice majority that included two Trump appointees, Chief Justice John Roberts explained: “The legislature acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the legislature’s exercise of power.”
The Court reaffirmed over a century of precedent rejecting the independent state legislature theory, noting that no constitutional provision has ever given a state legislature the authority to make election laws in a manner outside of what the state constitution allows.
While Moore was a congressional redistricting case — and thus involved the Elections Clause — that provision and the Electors Clause are read in lockstep. And so, whether the scheme involves congressional district lines or presidential electors, no state legislature is “independent.” The gerrymanderers in Moore could no more ignore their state constitution when redistricting their state than legislators could ignore bedrock due process protections and existing state law dictating how electors are chosen and must cast their votes.
Trump will undoubtedly exhaust all avenues in attempting to ward off liability for his interference in the 2020 election. The independent state legislature theory, though, is already spent. It is no defense for the grave misconduct that we witnessed in 2020, no matter what Trump’s lawyers and allies claim.
(Eliza Sweren-Becker serves as counsel in the Democracy Program at the Brennan Center for Justice, where she focuses on voting rights and elections. Prior to joining the Brennan Center, Sweren-Becker was a litigation associate in private practice at Boies Schiller Flexner LLP.)
(Thomas Wolf is Counsel with the Democracy Program at the Brennan Center for Justice, focusing on redistricting issues. Prior to joining the Brennan Center, he was a litigation associate with the Supreme Court group of a global law firm, where his practice focused on constitutional law and strategic risk management.) This article was first featured in Common Dreams.