The first time the Supreme Court flirted with Independent State Legislature doctrine, George W. Bush wound up in the presidency. Next time, if conservatives on the court get their way in an upcoming case, your vote - depending on where you live - could lose all meaning.
A podcast where we dissect and analyze the Supreme Court cases that have caused our civil rights to fall far short of their promise, like a Russell Wilson pass falling far short of his intended receiver
0:00:00.6 Speaker 1: And you can hear the mob calling for the death of the Vice President of the United States.
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0:00:11.8 Leon: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about the Independent State Legislature Theory. As long-time listeners of the show know, the hosts typically take on a different Supreme Court decision every week. Today, they're switching it up and looking at an idea that the court is expected to weigh in on, in the future. As you'll hear, the Independent State Legislature Doctrine was the closest thing to a legal theory that Trump supporters had when they swarmed the US capital on January 6th 2021. And it's no exaggeration to say that while this theory has already been deadly, things could get even worse depending on how the Supreme Court rules this term. This is 5-4, a podcast about how much the Supreme Court sucks.
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0:01:06.4 Peter: Welcome to 5-4 where we dissect and analyze the Supreme Court cases that have caused our civil rights to fall far short of their promise, like a Russell Wilson pass, falling far short of its intended receiver.
[laughter]
0:01:17.0 Rhiannon: Wow! Kick a man when he's down.
0:01:23.1 Michael: Yeah.
0:01:23.1 Peter: I'm Peter, I'm here with Michael...
0:01:26.4 Michael: Hi everybody?
0:01:27.4 Peter: And Rhiannon.
0:01:28.2 Rhiannon: Hi. Hello.
0:01:29.1 Michael: He's not down, he's washed, he's done.
0:01:31.7 Peter: That's right. Go on.
0:01:31.8 Rhiannon: Yeah, no, no, I'm actually, I'm not a Russell Wilson fan, so I don't actually mean to defend him.
0:01:37.4 Michael: You're not a fan of Mr., "Praise Jesus, the Lord is with us today."
0:01:43.6 Rhiannon: I'm not a fan of the Christian robot who plays football.
0:01:47.3 Peter: Jesus has moved on to Patrick Mahomes. Look, real heads know I'm a Chiefs fan and look, we got our ring, will we get another one in the next couple of years? Maybe, there's a good shot, but you know, if I had to guess, we probably won't and therefore I will be rejoicing in the failures of our division rivals.
0:02:09.2 Michael: That's right.
0:02:10.8 Peter: On my podcast, that's what sports are all about.
0:02:16.7 Michael: Yeah. That's right, that's right.
0:02:16.8 Rhiannon: Yeah.
0:02:18.5 Peter: All right. Special episode today. There is a specter haunting American elections, the specter of the Independent State Legislature Theory.
0:02:28.6 Michael: That's right.
0:02:29.8 Rhiannon: We giggle. But it's real. [laughter]
0:02:31.8 Michael: Yeah. This is our spooky season episode.
0:02:37.5 Rhiannon: Right, that's right.
0:02:38.5 Michael: Right, for Halloween.
0:02:39.3 Peter: There is a case pending before the Supreme Court, Moore v. Harper is about redistricting in North Carolina, but it is posing questions that have sort of broad implications for this Independent State Legislature Theory, which may make federal elections substantially less democratic moving forward. And usually we would wait for the case to be decided to cover it, but we thought it was worth its own episode right now for a couple of reasons. First, it's getting a ton of press, and I think a lot of people are seeking clarity on what exactly it all means. And second, the scope of the Independent State Legislature Theory is bigger than one case.
0:03:24.0 Rhiannon: Yeah, and that's why we're focusing on the theory in this episode rather than specifics of Moore v. Harper, right?
0:03:31.9 Peter: Right. We're gonna tell you what this theory is, why it matters and how it might be used to subvert federal elections across the country. So the argument, the basic theory is fairly simple. The Constitution grants state legislatures power to set the rules for federal elections. Article I says that state legislatures can prescribe the time, place and manner of congressional elections, and Article II says that the state legislature can direct the appointment of presidential electors in presidential elections. Our presidential elections work through the Electoral College, of course, so this just means that each state's legislature directs the process for sending that state's electors to vote for President. So that's what the Constitution says and the heart of this theory is basically a semantic argument. Usually if a state legislature passes a law, it's subject to various checks and balances. It could be overruled by state courts, it could be vetoed by the governor, for example, but this theory says, "Look, the Constitution says, state legislatures have the power to set the rules in federal elections." It doesn't say states, it doesn't say state courts, it doesn't say governors, it just says legislatures. So state legislatures actually have exclusive power within their states to set federal election rules.
0:05:00.3 Rhiannon: Right.
0:05:00.3 Peter: And according to the theory, neither the governor of a state nor its courts have any ability to intervene, hence the name Independent State Legislature, meaning it's independent of state court, state constitutions, any of the other sort of usual checks and balances. So we'll get into the implications of this in more detail soon, but to give you a sense of what this means, let's say a state Constitution has a strict prohibition on Voter ID requirements. It says, "No voter ID laws allowed," but then the state legislature goes and passes a voter ID requirement anyway. In a normal circumstance, a state court would step in and strike that law down because it violates the state Constitution, but if you buy the Independent State Legislature Theory, you'd say, "Look, it doesn't matter what the state court says, because the state legislature has complete authority to set the rules for federal elections, so the state legislature can pass whatever federal election rules it wants." Right?
0:06:03.3 Rhiannon: Yeah.
0:06:04.1 Peter: Now, I do wanna give one quick note before we move on, which is that federal courts under this theory would still have oversight over what the state legislatures do, and they could say, "Well, it's unconstitutional under the Federal Constitution." And similarly, in Article I, Congress is granted power to oversee what state legislatures do in congressional elections, so it's not that there's no oversight, it's that there's no oversight at the state level, so state legislators can sort of run wild within the state's fear.
0:06:36.8 Michael: That's right.
0:06:37.4 Rhiannon: Yeah. And so this Independent State Legislature Theory, it really harkens back to something that the Trump campaign was trying to do in the 2020 elections with trying to get states, for example, to certify their own slate of electors rather than what the voters in those states decided. Now, Independent State Legislature Theory is of course about concentration of power in state legislatures, which we should just say explicitly that most state legislatures in the country right now are controlled by Republicans, so this is a conservative idea to consolidate power in the Republican party on the state level here to basically take over federal elections and control how federal elections are administered across the country.
0:07:26.3 Peter: Right, to leverage the concentration of power that Republicans have at the state legislature level into federal power, which is a little more tenuous for them.
0:07:36.3 Rhiannon: Right, and you see the manifestation of this theory and the idea of this theory pop up over the course of history a few times, but what Moore v. Harper, what this case sets out to do is really get the green light once and for all from the Supreme Court for state legislatures to be able to act like this.
0:07:55.0 Michael: So throughout this episode, we are going to discuss all the reasons this theory, the Independent State Legislature Theory, is wrong and stupid, but just a quick overview of that. For one thing, it's A, historic nonsense, it's not at all consistent with how either the drafters or the average reader would understand the language in the Constitution at the time of drafting, and that's mainly because on a just sort of intuitive level, state legislatures are not like divinely created entities or anything that exist separate and apart from the rest of government, they are created by state constitutions, they are creatures of state constitutions. The idea that they would have any sorts of power that is somehow independent of those constitutions, the very empowering documents that make them exist in the first place is just nonsense. It's like turning the very idea of constitutional democracy on its head. Right?
0:09:04.8 Rhiannon: Right.
0:09:05.0 Peter: It literally is the same thing as saying that the federal Congress need not pay attention to the federal Constitution, that they can ignore the rules of the federal Constitution. A silly argument, because Congress is created by the Constitution. The Constitution lays out exactly what the structure of Congress is, right?
0:09:24.5 Rhiannon: And their power. Yeah.
0:09:26.0 Peter: And this is just that same sort of absurd argument at the state level.
0:09:30.0 Michael: Yeah.
0:09:30.6 Peter: I think at the end of the day, this theory has no basis in history.
0:09:34.8 Michael: None.
0:09:35.2 Peter: No real originalist argument, no logic within the structure of state government, and in fact, it defies the logic of state government because it is granting state legislatures more power than the state constitutions from which their power is derived to begin with.
0:09:54.0 Rhiannon: Right.
0:09:55.1 Michael: It turns American federalism on its head, making federal courts sort of like the arbiters of state election laws above and beyond state courts and state constitutions. Yeah, it's just crazy. And would invalidate 150 years plus of historical practice. Right? The way we've run elections in this country.
0:10:17.7 Peter: Just fucking bullshit.
[laughter]
0:10:19.6 Rhiannon: Right.
0:10:19.8 Michael: Those are the basic arguments again. [laughter] It's a mistake.
[laughter]
0:10:25.6 Rhiannon: Yeah, and Independent State Legislature Theory, as it's popping up today, and it is a more recent idea in constitutional law, in elections law, this is sort of the latest most extreme output of a tradition of kind of anti-democracy. The Independent State Legislature Theory might seem crazy, it is crazy, and it might be the case that crazy people are rallying behind it, but it's best understood as the latest manifestation of a really consistent and mainstream impulse on the right, which is to change the rules of the game so that their side wins.
0:11:05.3 Michael: Absolutely.
0:11:06.0 Rhiannon: Of course, the John Roberts court has been all too willing to chip away at the Voting Rights Act, for example, but this also is sort of a connection, a harkening back, if you will, to anti-democratic ideals that were sort of baked into the founding and baked into the drafting of the Constitution, things like creation of the Senate, the early rules about how federal elections were held and how senators were elected. So this is all a sort of continuation though the Independent State Legislature Theory is a sort of extreme, and I'm glad we're saying, absolutely bullshit idea, right? It is a continuation sort of in this theme of America being a democracy that's actually based on a lot of anti-democratic principles and procedures.
0:12:00.7 Peter: Right. Yeah, it's sort of a novel, modern iteration of a long tradition of resistance to democracy among reactionaries in this country.
0:12:12.9 Rhiannon: That's right.
0:12:13.8 Michael: Right. Originally, the founding Senators, federal senators, were not directly elected by the people, they were elected by state legislatures. And obviously, the president is actually not directly elected by the people, they are elected by the Electoral College, and so you see these layers of elitist insertion between the people and their representatives, and of course, back then the people were White male land owners, right?
0:12:41.0 Rhiannon: Exactly, yeah. And not to mention even more recently, the trend of election denial of calling out basically fake and hyperbolic claims of fraud in elections, that elections really can't be trusted. This is a principle right now in the Republican Party, and certainly very much so on the state level, right?
0:13:01.3 Michael: Right.
0:13:01.5 Peter: Yes. So this doctrine has ties to various historical interpretations of the Constitution and in sort of loose ways, but the first emergence of the theory in the modern era was in Bush v. Gore. The majority opinion in Bush v. Gore was about whether differential treatment of ballots violated the Equal Protection Clause. But noted segregationist William Rehnquist wrote a concurrence joined by Scalia and Clarence Thomas who is, despite my consistent prayers, still on the court and alive.
[laughter]
0:13:41.5 Rhiannon: That's right. Yeah.
0:13:43.6 Peter: And that concurrence essentially endorsed the Independent State Legislature concept, which had actually been the primary argument pushed by the Bush legal team. The argument was based around the idea that the Florida Supreme Court had improperly interpreted the law passed by the Florida State legislature. Now, usually that would not be an issue for a federal court, state courts have the final say on state law. But if you embrace this theory, that's not true in the context of presidential election laws, because like we said, the state legislature would not be subject to oversight by state courts, so the concurrence embraced this idea and basically said, "We would overturn the Florida Supreme court's interpretation of Florida State law, which we can do because under this theory, the Florida legislature is the body that has the power here, and the Florida Supreme Court has no real say." So that's sort of the first time and that doesn't get a majority, that only gets three votes, but that's sort of the first time in the modern era that you're seeing this concept rise up to prominence at the Supreme Court in the highest profile case that the court has had in decades.
0:15:00.2 Rhiannon: Yeah, absolutely. The next time you see the Independent State Legislature Theory pop up at the Supreme Court is a case from 2015. It's called Arizona State Legislature versus Arizona Independent Redistricting Commission. We've talked about this before, but Arizona has so much fucking election litigation.
0:15:18.3 Michael: It really does.
0:15:18.4 Rhiannon: What is happening in the state of Arizona?
[laughter]
0:15:21.0 Peter: Yeah, I also think that they are the only state without an affirmative right to vote.
0:15:24.7 Rhiannon: Cute. Okay.
0:15:27.0 Michael: I also think it's a state where it's sort of purplish, but the Republican party there is fucking wild.
0:15:35.5 Rhiannon: Right. Right. And has a chokehold on the state legislature. Yeah.
0:15:39.2 Michael: Yeah, exactly.
0:15:40.2 Rhiannon: Yeah. So this is a case, Arizona State Legislature versus Arizona Independent Redistricting Commission. This is a case from 2015, so we're certainly... Just for some context at least at the Supreme Court, we're certainly in the Chief Justice John Roberts' era, but you have four liberals on the court at this time, plus Anthony Kennedy, and that combo wins the day here. So a little background on the case, gerrymandering was a problem in Arizona, a problem that people in Arizona really did not like. So back in 2000, the people of Arizona voted by referendum, by ballot initiative to create an Independent Redistricting Commission that would handle election redistricting, independent of the state legislature.
0:16:25.6 Peter: So that you wouldn't have the political parties handling redistricting and being able to gerrymander.
0:16:30.6 Rhiannon: Exactly, because when the state legislature and Republicans were in charge, they gerrymandered the state to hell. So redistricting authority is given to this independent commission in Arizona, and the state legislature sued the Independent Commission. Hilarious. Like, "We wanna gerrymander, let us gerrymander." So anyway, so the argument at the Supreme Court was basically this one, it was basically Independent State Legislature Theory, that the creation of the Independent Redistricting Commission violated the Elections Clause of the Constitution, because again, the Elections Clause says, legislature, state legislature controls the time, place, manner of elections. "And voters can't take any of that power away from us," said the Arizona state leg.
0:17:18.2 Rhiannon: At this time, like I said, the liberals win, this is a majority written by Ruth Bader Ginsburg. She says that the state Constitution in Arizona allows ballot initiatives to become law and to amend the state Constitution. These laws can be passed this way in Arizona, and it's not a violation of the Elections Clause because the phrase state legislature in the Constitution, in the Elections Clause, it refers to state government. We're talking about general law making process. So if the state Constitution says that state laws can be vetoed by the governor or that laws can be overturned by referendum, then that includes state laws about elections. So the Independent State Legislature Theory doesn't win then, back in 2015, but should know in this case, John Roberts files a super angry dissent. Scalia files a super angry dissent. Clarence Thomas files a third super angry dissent. Thomas is referring... By the time this comes to the Supreme Court, it's 2015, Thomas refers to Obergefell, which is also decided in this term, saying that the liberals are being, like hypocrites, inconsistent, and that he's mad about the Obergefell decision. Yeah.
0:18:40.0 Michael: That's like gay marriage decision. The gay marriage.
0:18:41.8 Rhiannon: Yeah. Yeah.
0:18:41.9 Peter: I love that he manages to squeeze his anger about gay marriage into a gerrymandering case. You gotta respect it, you gotta respect the pettiness of Clarence Thomas.
0:18:53.0 Michael: Yeah. And it's important to be clear about who the parties are here and who's an interest, right? The Arizona State Legislature is suing...
0:19:02.7 Rhiannon: Yes, the body.
0:19:03.7 Michael: The body here. They're suing the Independent Redistricting Commission, but they're basically suing the people.
0:19:08.9 Rhiannon: Yes.
0:19:09.4 Peter: Right, right.
0:19:10.2 Michael: They're suing essentially the people of Arizona being like, "Fuck you for passing this ballot initiative. Who the fuck do you think you are to tell us that we can't draw these district lines."
0:19:21.2 Peter: Right. Right.
0:19:23.3 Rhiannon: Yeah.
0:19:24.0 Peter: Being functionally sued by your own representatives...
0:19:25.6 Michael: Right.
0:19:25.7 Rhiannon: Right.
0:19:26.1 Peter: 'Cause you wanted something that they didn't. That's what's happening.
0:19:28.8 Rhiannon: Yeah. Yes, exactly.
0:19:28.9 Michael: That's the nature of this complaint, and there are four red hot mad conservatives that the state legislature lost here.
0:19:37.8 Rhiannon: Yep.
0:19:38.4 Peter: Right.
0:19:38.8 Michael: So, this theory also gets a lot of play before, during and immediately after the 2020 election. So, there is a sort of a conventional wisdom that has sort of coalesced somehow that the Supreme Court stayed out of the 2020 election, that's not true. They just quietly did their work in advance to help Republicans win the actual vote counting, and we saw this theory, the Independent State Legislature Theory pop up in some of those decisions when they were overruling a district court in Wisconsin...
0:20:21.2 Rhiannon: Right.
0:20:21.5 Michael: That had extended deadlines for returning absentee ballots, you have Justice Gorsuch writing, "The Constitution provides that state legislatures, not federal judges, not state judges, not state governors, not other state officials, bear primary responsibility for setting election rules."
0:20:40.5 Rhiannon: Don't like... Me no like.
[chuckle]
0:20:41.0 Michael: And the thing is like, it's important to remember around this time, the Republican candidate for president, the sitting president was railing against mail-in ballot voting, was encouraging his voters to not use mail ballots and had a hack in the post office who seemed to be purposely slowing down the mail in order to make it more difficult to return mail ballots on time. I think that's a good context to understand, what the Supreme Court was doing in making it harder for state courts and federal courts to extend mail-in ballot deadlines in advance of the election, right? They were helping, affirmatively helping Trump's plan to call into question the results of the election. There were some nutty challenges late in the election, mostly got tossed. Saying, "Look, Pennsylvania can overturn this fraudulent election, their state legislature, which is terribly gerrymandered, has total authority here."
0:21:46.3 Michael: It was also sort of like a supercharged version of the Independent State Legislature Theory, that is the sorta intellectual backdrop for the fake elector scheme that is currently being investigated by, I think three different law enforcement authorities in Washington and Georgia. This was the scheme that eventually led to the January 6th insurrection, right? This idea that nothing is final until Congress counts the electoral votes, and state legislatures have the ability to submit separate slates of electors in the Electoral College, and that Mike Pence then has the power to count those slates of electors as valid instead, right? Like the independent state legislature's theory was part of the legal backdrop for this scheme...
0:22:41.6 Rhiannon: Yeah.
0:22:41.7 Michael: That spans seven states including mine, New Mexico was in there. Yeah. Woohoo. [laughter] And Arizona, [chuckle] you know? Arizona was there.
0:22:52.1 Rhiannon: Oh yeah.
0:22:52.8 Michael: Of course...
0:22:53.6 Peter: Yeah. And probably worth noting that you can see this between the lines of what Michael is saying, but this is the legal theory behind January 6th.
0:23:05.5 Michael: Yes.
0:23:05.9 Peter: To the extent that there was something that looked like a legal theory and not just like the pure display of violence and power, this was it, right?
0:23:14.4 Michael: Yes.
0:23:14.7 Rhiannon: Yes.
0:23:15.3 Peter: It was some iteration of this concept that drove people to think that we can just pressure Mike Pence to put in whatever electors we want in these states and Trump will be the president. Right?
0:23:28.7 Michael: Right.
0:23:28.9 Peter: And that's why they were breaking into the Capitol to accomplish that.
0:23:32.8 Michael: Right.
0:23:33.0 Rhiannon: Yeah, exactly.
0:23:33.9 Michael: That's right.
0:23:34.7 Peter: And to take a shit in Nancy Pelosi's office, but that I understand. [chuckle] That's unrelated to the theory.
[laughter]
0:23:42.1 Rhiannon: Yes, and we should talk about kind of the immediate implications of the Independent State Legislature Theory. Like, we've seen it pop up in the past a little bit at the Supreme Court, you see this sort of manifestation and the kind of outbreak of the theory in real life and in terms of the January 6th riot. And so, what Independent State Legislature Theory means, if it takes the day at the Supreme Court this term, is that there is a total lack of oversight of state legislative election schemes, right? So, we're talking largely unfettered gerrymandering, we are talking wide authority to gerrymander election maps. We're talking unchecked authority to pass voter suppression laws, that's according to state legislatures, that's time, place, manner baby. Right?
0:24:32.5 Peter: Right.
0:24:32.5 Rhiannon: That's what the federal Constitution says, that state legislatures can prescribe the time, place and manner of elections. And that's what we have the power to do. But with the Independent State Legislature Theory kind of winning out here, we're also talking about state legislatures no longer giving authority to other state officials, particularly in the executive branch, to administer elections. So, governors don't have a role anymore, secretaries of state, election commissioners, these roles that are important to the administration of elections across the country, you're taking that administrative power away and saying only the state legislature can do this.
0:25:11.0 Peter: Right. Or at least subjugating that power to the state legislature.
0:25:14.9 Michael: That's right.
0:25:15.8 Rhiannon: Right. Right. Exactly. State constitutional bans on gerrymandering, North Carolina is an example of a state with a constitutional ban on gerrymandering, Florida and Ohio also have similar bans, those bans could totally die under the Independent State Legislature Theory. Independent Redistricting Commissions, like I mentioned in Arizona, California and Michigan, among other states have those. We're talking about those being completely wiped out.
0:25:43.3 Peter: Right, being unconstitutional, most likely.
0:25:46.3 Rhiannon: Right. Right. Exactly.
0:25:46.6 Michael: Right.
0:25:47.2 Rhiannon: Other state constitutional provisions, like many states secured the right to a secret ballot, for instance, that would be gone, because Independent State Legislatures would be setting all these rules themselves without any check from what the state Constitution says. So, among all this possible parade of horrors is an extreme situation, but one that Independent State Legislature Theory would certainly allow under many interpretations. If a state legislature is unhappy with how an election official has conducted their duty or interpreted the state's election laws, they could use Independent State Legislature Theory to refuse to certify the results of a presidential election and instead select its own slate of electors, this is what we're talking about in terms of the pressure from the Trump campaign on the state of Pennsylvania, on Georgia. The Independent State Legislature Theory sort of endorses that move and says that your state legislature is the one with total discretion to certify the slate of electors, and when they don't like the results of what the voters of their state have said, then they can do this sua sponte.
0:27:09.4 Michael: Yeah, you know...
0:27:10.5 Peter: Hold on. Before we go on, I have to say we have Hannah Mullen on the podcast, who once and all of a sudden you're saying sua sponte to our poor listeners.
[laughter]
0:27:21.6 Rhiannon: Good point. [laughter] But seriously, we're throwing out a lot of different possibilities for what could happen if the Independent State Legislature Theory is adopted, but here's the bottom line, the bottom line is that state legislatures will have much more power to engage in voter suppression of all different types.
0:27:40.5 Michael: Yeah, there is a troubling conventional wisdom, I think coalescing in the Legal Academy right now, and maybe even among political elites. They certainly seem to be directing it at political elites that as bad as the Independent State Legislature Theory is, and it is bad, that while it would allow gerrymandering and all this stuff, it wouldn't actually allow state legislatures to overturn the results of presidential elections. We are going to get into detail about how wrong that conventional wisdom is. But before we do, it's worth noting that this is also a power grab, right? This is an arrogation of power, should the court act on it. This would be taking power that is usually shared amongst three state branches of government, state courts, state executives and state legislatures, and basically arrogating it all to the Supreme Court and state legislatures.
0:28:43.5 Rhiannon: Right.
0:28:44.6 Peter: Two institutions that are coincidentally...
0:28:46.5 Michael: Yes.
0:28:48.1 Peter: Controlled by Republicans very disproportionately.
0:28:51.2 Michael: Yeah, it's crazy, it's weird too. [chuckle] Arguably the two least democratic institutions in American government...
0:28:58.5 Peter: Right.
0:28:58.6 Michael: Thanks to intense gerrymandering at the state level, and of course, because of the Supreme Court is extremely undemocratic for all the reasons we've gone over many, many times on this podcast. So yeah, fuck these people.
[laughter]
0:29:14.0 Peter: Yeah, no, I do think it's definitely worth noting that it's like... The obvious implication is that power is concentrated in state legislatures, the less obvious implication, if you're not like a lawyer is that the second concentration of power is in the Supreme Court itself...
0:29:30.7 Michael: Right.
0:29:31.2 Rhiannon: Yes.
0:29:32.2 Peter: Which grants itself oversight over all of this, which takes oversight away from state courts and state constitutions and just absorbs that oversight power into itself.
0:29:44.6 Rhiannon: Right.
0:29:44.7 Michael: Right. And this is a revolution in a very real sense, this would be revolutionary, not just in how power is divided in elections, but also like Rhi was saying, we are talking about re-writing the election laws in essentially all 50 states, right?
0:30:03.0 Rhiannon: Right. Yes.
0:30:04.1 Michael: Re-doing the way elections are done, ballot initiatives and state constitutional rights and state court decisions that have been handed down pursuant to those constitutional rights and over two centuries of historical practice in these states, all gone, right? Like, gone.
0:30:24.0 Rhiannon: Right, yes.
0:30:25.0 Michael: It's unbelievably radical.
0:30:26.0 Peter: Yeah.
0:30:28.3 Michael: In its strongest form, it's radical regardless, but its strongest form is like, unreal.
0:30:34.4 Rhiannon: Yeah, yeah.
0:30:35.5 Peter: Okay, let's take a break and then we'll come back.
0:30:40.0 Rhiannon: We're back.
0:30:40.9 Peter: Alright, so Rhi went over some of the very clear and frankly inevitable outcomes of embracing this doctrine where you have the gerrymandering and sort of just almost unfettered ability of state legislatures to engage in voter suppression in federal elections. But maybe the biggest concern, the one most discussed by the media is what we've hinted at, which is the extent to which it might allow for state legislatures to functionally overturn the results of a presidential election and simply hand the victory to their preferred candidate. So we wanna talk about that and let's break it down into two discussions. One, whether state legislatures can subvert the outcome of an election before the election occurs, and two, whether state legislatures could overturn the results after the election. The first question is much clearer, the federal Constitution does not have an express right to vote for the president, when the country was founded, state legislators would select their electors and send them off to the Electoral College to be counted, right?
0:31:49.3 Peter: There was no direct voting by the population, certainly not required, but no state has done it that way in about 150 years, instead, they've generally said that they will hold elections and the winning candidates slate of electors would be chosen and sent off to be counted. So a state could say, "You know what, we're going back to how it was, there's no popular vote for presidential elections anymore. We're just gonna have the legislature choose the electors itself." Under the Federal Constitution, that's fine, they could do it right now, except in nearly every state, the state Constitution says you can't. It contains some sort of a right to vote.
0:32:27.3 Rhiannon: Right.
0:32:27.8 Michael: You don't have to interpret the Constitution that way, right?
0:32:29.8 Peter: Yeah.
0:32:30.4 Michael: Like the 15th Amendment does include a mention of the right to vote, and we've discussed this many times about more robust vision of voting rights that... Based on language that already exists in the Constitution, the guarantees of a Republican form of government...
0:32:46.8 Peter: Yeah.
0:32:47.5 Michael: Things like that, but that is not how the Constitution is currently, generally interpreted by conservatives and even by some moderate liberals.
0:32:56.8 Peter: Right.
0:32:58.3 Rhiannon: Right.
0:32:58.8 Michael: So Peter's describing the state of the laws that exists, but that's certainly not necessarily the be all end all, right?
0:33:07.0 Peter: Right. It's not the only interpretation, but it is the prevailing interpretation right now.
0:33:09.7 Michael: That's right. Right. Right.
0:33:10.8 Rhiannon: Yeah.
0:33:12.0 Peter: So this is something that states could theoretically do, they could say, "We're not doing the popular vote anymore," but they have all these state constitutional rules that might prevent that from happening. If you embrace this theory, the State Constitution no longer matters, right?
[chuckle]
0:33:27.3 Michael: Right.
0:33:28.1 Rhiannon: Right.
0:33:29.1 Peter: All that matters is the State legislature, so they could do whatever they wanted and say, "You know what, we're erasing the popular vote." I think that basically all the experts agree that this is a plausible outcome of the theory, right? What's more controversial or less well-understood is the degree to which this theory might allow for a state legislature to wait until the election is over, and then say, "You know what, screw the results, we're going to appoint whatever electors we want." This is of course what some extreme elements of the Trump campaign were contemplating in 2020. And by extreme elements, I mean like, the majority of the people.
0:34:11.2 Rhiannon: Right.
[laughter]
0:34:12.6 Peter: Who worked for the campaign.
0:34:14.8 Michael: Several sitting Senators...
[laughter]
0:34:14.9 Rhiannon: Right.
0:34:14.9 Michael: A lot of people in state Houses across the country. Yes.
0:34:19.1 Rhiannon: Yeah.
0:34:19.8 Peter: Right, so this is on people's minds. Most election law experts seem to believe that the Independent State Legislature Theory would not allow for this to happen. I will explain their reasoning, and then we will go over why they are for all functional purposes wrong and stupid and not real experts.
[chuckle]
0:34:40.6 Michael: We're the experts now, baby.
0:34:40.6 Peter: That's right. If they were so good at it, why don't they have a podcast? [laughter] So, as we've established, the theory would let state legislatures run wild regardless of what state constitutions or state courts say. But the Constitution also expressly says that Congress, the federal Congress chooses the day that presidential electors are selected, and the day that Congress has chosen for that is election day, the Tuesday after the first Monday in November, in every even numbered year. And even though the vote isn't always fully tallied on election day, the reasoning goes that after election day is over, the state can no longer choose to implement a new system for choosing its presidential electors, right? It has already committed to this system, once election day is over, all that's left is the logistics and the state legislature no longer has that power. So to be clear, I think in and of itself, that analysis is probably right. The independent legislature theory does not allow for the state legislature after an election to change its mind and appoint its own electors, but they don't need to do that to overturn a presidential election.
0:36:01.7 Rhiannon: Right.
0:36:01.8 Peter: All they need to do is put in place mechanisms that allow them to question the validity of the results.
0:36:09.8 Michael: Right.
0:36:10.1 Peter: So, Rhi gave an example earlier of the state legislature casting doubt on the state officials who are in charge of the election process, right? Another possibility, and I'll just sort of throw out a hypothetical, it's 2024, Georgia Republicans could not wait until after election day, see that Biden won and be like, "Okay, election cancelled, we're just giving the electors to Trump or DeSantis, or whoever."
0:36:36.6 Rhiannon: Right.
0:36:37.8 Peter: But they could establish in advance an election fraud oversight commission or something, give it all sorts of power to question the validity of the election results, right? And then gen up manufactured allegations of fraud, cast as many Democratic ballots as possible into doubt and use pre-established processes to nullify those ballots and hand the win to Republicans. And they could do that relatively unfettered under the Independent State Legislature Doctrine. So there have been all these experts saying, "Look, this wouldn't allow them to just overturn Presidential election results," and that's correct in a very narrow technical sense, but it is not a meaningful statement, because the doctrine could absolutely give state legislatures the tools to nullify election results and hand the victory to their preferred candidate.
0:37:33.5 Rhiannon: Yeah.
0:37:35.0 Michael: It's sort of like, seeing somebody in a Ferrari revving their engine and being like, "Well, I'm kinda scared that they're gonna peel out here in 150 miles an hour." And somebody is saying, "Well look, the speed limit is 60."
[laughter]
0:37:47.0 Rhiannon: No worries. No worries at all.
0:37:52.6 Michael: So, what are you worried about? What's the concern here?
0:37:58.0 Peter: I will throw in another fun little quirk here, which is, like I said, a lot of the sort of reason that people think that state legislatures can't overturn the results is that Congress has chosen election day as the day that electors need to be selected. But if you read the statute, it's pretty clear that the state legislature would have up until the end of election day to decide. So, they could see where the wind is blowing and be like, "Ooh, no, we're not going that way. We're gonna go the other way." Now, I will also throw in that there are some constitutional law professors who have said, "Well, if they did something like that, it would probably violate equal protection and due process under the Constitution." My only response to that is that equal protection and due process in the voting context is an incredibly undeveloped part of our law, and to rely on that to save democracy, it is the realm of dumbasses.
[chuckle]
0:39:06.9 Rhiannon: We're talking precarity. We're talking tenuous. [chuckle] We're talking thin ice. [laughter]
0:39:12.4 Michael: Right. Your plan might as well be like, "Well, I'm not too worried about them stealing in the election because last year, when I wrote to Santa, I said, I really want a fair election."
[laughter]
0:39:24.0 Michael: And then I was a good boy all year. I wasn't bad once, especially if we're talking about the Supreme Court in this scenario that has given a green light to the Independent State Legislature Theory, but now we're gonna come back to them and be like, "Ah, but the Equal Protection Clause."
0:39:42.8 Peter: Right. The Equal Protection Clause that they literally used to hand an election to Bush.
0:39:47.1 Michael: Bush.
0:39:47.4 Rhiannon: Yes.
0:39:48.9 Peter: That was the last major use of the Equal Protection Clause in the voting context.
0:39:51.2 Michael: Right. It was to stop the counting of ballots and declare an election over. That was the last time equal protection has had a major say in a presidential election... Yeah.
0:40:04.2 Peter: Right. So yeah, I think it's probably worth talking about these experts a little bit, because again, something is wrong with their brains.
0:40:13.4 Michael: Yes.
0:40:13.5 Rhiannon: Yes.
0:40:13.6 Peter: It is very clear that as Rhi mentioned, as I mentioned, this theory would allow states to lay the ground work to undermine the results of any given presidential election. They can declare fraud or whatever, and use that as a basis for appointing the electors of their choosing, or at the very least, erasing a bunch of actually valid ballots for Democratic candidates, right? To me, that is sort of unquestionable, and experts would almost certainly agree with me, the only thing that they would disagree about is the sort of technical language that we're using by saying, "Well, they could overturn the election." What they're really doing is being like, "Well, actually that's not technically overturning the election, that is simply undermining the ability of people to participate in the democratic process."
[laughter]
0:41:08.0 Michael: That's a fair and open way.
0:41:11.9 Peter: That's the sort of distinction they're drawing... And we've seen it, I've seen it everywhere. Josh Douglas, an elections expert at University of Kentucky, Rick Pildes, whose work I'm a fan of, and I think I was just recommending one of his Law Review articles a couple of weeks ago, Andy Craig, who's... I don't think he's a professor, but he's sort of a Never Trump libertarian guy at Cato, he wrote a piece for The Daily Beast called Liberal Panic Could Help Trump Steal the Next Election. And the argument was basically, look, the Independent State Legislature Theory would not allow for elections to be overturned, and liberals who say that it would, are actually giving ammunition to conservatives to make that argument themselves. And it's like, well, which is it? Yeah, this is the theory that cannot conceivably be used to overturn elections, and there's nothing to be worried about, where the court is so close to allowing for this, that liberals discussing the possibility at all is just the excuse they need.
0:42:11.7 Rhiannon: Is the trigger, yeah.
[laughter]
0:42:15.3 Peter: It can't be both.
0:42:18.4 Rhiannon: Right. Why is me saying that it's extreme, going to lead to an extreme result, right? That doesn't make fucking sense.
0:42:22.8 Michael: It's also a crazy thing 'cause it's like, Look, they'd literally just tried to do this in the last election, I feel like...
0:42:31.4 Rhiannon: They fucking already did it. I don't understand...
0:42:35.5 Michael: They already tried to do this.
0:42:36.2 Rhiannon: It's not gonna happen. Y'all are being extreme. They're fucking doing it right now.
0:42:40.5 Michael: They're doing it right now, half the... 60% of fucking Republicans on ballots right now don't think Joe Biden was legitimately elected President. Literally, their Secretaries of State and Governor candidates right now who are like, "Yeah, we're never electing a Democrat again in this." They're fucking running on this shit, they tried to do it two years ago, they are making it an organizing principle of state level, party flunkies like, what planet are you living on? It's an uncomfortable truth to sort of...
0:43:20.5 Rhiannon: Sure.
0:43:21.9 Michael: Reckon with... But not reckoning with it doesn't make it any less true.
0:43:23.8 Rhiannon: Exactly.
0:43:25.3 Michael: And it's not just law professors. Bob Bauer, who is a former White House counsel, who fucking chaired Biden's Supreme Court Reform Commission, this is a guy who Democrats listen to, this is a guy with influence, he's writing this same shit, right, the same... Well, Congress gets to choose when electors are decided and they say Election Day, and they're saying to be sure if the election isn't valid or whatever, it's like... That's the whole thing, right?
0:43:54.5 Rhiannon: Yes.
0:43:55.8 Peter: Every article that these people write has a caveat, that's like, "Well, yeah, by the way, they could functionally overturn the election, but that's not what we're talking about right now."
0:44:06.1 Michael: Yes.
0:44:06.4 Peter: What we're talking about is whether they technically could, using the exact and precise language and definitions that I am using.
0:44:12.9 Rhiannon: Right and right.
0:44:13.3 Michael: It's not like we haven't seen this sort of... Again, in 2020, they were purposefully setting up a disparity between in-person and mail-in voting months in advance...
0:44:27.0 Rhiannon: Yes.
0:44:29.0 Michael: In order to cast doubt on the validity of mail-in ballots, like the idea that they wouldn't have the presence of mind or wherewithal to plan ahead these sort of avenues for challenging the validity of democratic votes, or that they wouldn't have the guts afterwards, but they just fucking did it. And again, going back to Bush v. Gore, where this first popped up in modern American history, again, remember Florida was recounting the ballots pursuant to Florida laws... Florida election laws, right?
0:45:04.9 Rhiannon: Yes.
0:45:05.8 Michael: Like passed by Florida State Legislature and interpreted by Florida's Supreme Court, and there was concern that Gore was gonna win that recount and that the Florida State Legislature wanted to send Bush electors anyway, right? That's what this was about. This theory first came up, John Eastman, one of the architects of January 6 in Trump's entire fucking electoral coup attempt was testifying before Florida State Legislature in 2000 doing this same shit saying, "Look, even if Gore wins the recount and is the valid winner of the election, you have the power to send Bush electors to the Electoral College," right?
0:45:49.9 Rhiannon: Yeah, yeah.
0:45:51.0 Michael: That's how this all started was in preparation to do precisely what people are now saying they wouldn't be able to do, right?
0:46:00.2 Rhiannon: Right.
0:46:00.8 Michael: Like, it's fucking...
0:46:01.1 Rhiannon: So don't call me crazy because I saw what was happening...
0:46:03.7 Michael: Yes.
0:46:04.2 Rhiannon: And was paying attention, right?
0:46:06.3 Michael: Yes, I fucking lived it. I lived in Florida and voted in that election in a contested county. I very vividly remember what this was and what this is, and it's scary 'cause it feels... The dialogue around this feels a lot like Roe v. Wade, and the sort of complacency on the left about there's all sorts of voter suppression and gerrymandering that it can allow, but they would never do this. They'd never go this far. It just feels very similar and it scares me about what the next two years will look like.
0:46:43.0 Peter: Yeah.
0:46:43.5 Rhiannon: Yeah, and just to talk about the facts on the ground, how this case came up in North Carolina, the North Carolina state Constitution and state courts in North Carolina have said that partisan gerrymandering is unconstitutional in North Carolina. Here, this case is about the state legislature in North Carolina wanting to do partisan gerrymandering and saying that that's in the exclusive authority of the state legislature and what state courts and the state Constitution has to say about it doesn't matter.
0:47:16.6 Peter: Right. So the obvious consequence in Moore v. Harper is that the Court can say, "No, actually, it doesn't matter what the state courts or the state Constitution says, Independence Day legislature baby, the legislature can gerrymander to its heart's content." Right?
0:47:30.7 Rhiannon: Right.
0:47:32.5 Peter: Beyond that though, that holding would essentially mean that unfettered gerrymandering around the country is constitutional, and in fact, state courts and state constitutions cannot get in the way. So the immediate implications are dire and depending on where the court goes with it, you might see some of the more extreme iterations of the theory, either being directly endorsed or getting the foundation laid for them in the future. And before we wrap, it might be useful to talk about the Republican National committee's brief in Moore v. Harper because they submitted a brief. Rick Pildes, who I mentioned, who is a Professor and election law expert at NYU, he cited that brief as evidence that we shouldn't be too concerned, and the reason he gave was that the RNC said that the theory could not be used to overturn valid election results, and that was basically all he said, he's like, "Look, if even the RNC is saying it, then why are we so worried?" And if you can't see as an expert on election law, the giant winky face behind the word valid, then I don't know what to fucking tell you.
0:48:54.3 Rhiannon: Right, right.
0:48:54.7 Peter: They are telling you to your face.
0:48:56.0 Rhiannon: Yes.
0:48:56.5 Peter: That they are going to question the validity of the election, but it is behind the thinest veneer of deniability, and that is apparently enough for America's election law experts. They're like, "Well, if the RNC says so," no dude, they're gonna fuck your shit up. I don't know how else to put it.
0:49:16.4 Michael: They didn't think 2020 was valid.
0:49:18.1 Rhiannon: Exactly.
0:49:18.3 Michael: Like, what are we talking about here? They didn't think 2020 was valid.
0:49:23.9 Rhiannon: They are doing it right now.
0:49:24.9 Peter: Dude, they were like one congressional security officer breach away from hanging Mike Pence.
0:49:32.9 Rhiannon: Yes, yes.
0:49:35.6 Peter: All in television like on MSNBC, it would have been like Lester Holt, "Things looking grim as Mike Pence has been hung."
0:49:45.1 Michael: Which really throws in the question the ability for us to continue having a peaceful transfer of power. I guess his bloody fucking swings in the wind.
0:49:58.2 Peter: Yeah. Alright, so look, that's the Independent State Legislature Theory. And part of why we wanted to talk about this was because it's being discussed so broadly, and you're having these experts chime in, thinking that they are clarifying the issue, but in reality, muddying the waters by focusing on technicalities.
0:50:19.5 Michael: That's right.
0:50:20.1 Peter: And I think that what we have been trying to do with our podcast is put technicalities aside and talk about practicalities, and the practicality here is that this theory is a spectrum, but could very easily be used to overturn functionally presidential elections, to eradicate democratic input in federal elections across the country. That's just the reality here, and anyone who tells you that this is not a big deal, or much less of a big deal than people are making of it, is a fucking mark.
0:50:57.2 Michael: Yeah, that's right.
0:50:57.4 Rhiannon: Period.
[music]
0:51:03.6 Peter: Next week we'll be...
[laughter]
0:51:06.1 Michael: Alright.
0:51:07.2 Peter: Next week, a little blast from the past and also the future Bowers v. Hardwick case from the '80s that upheld anti-sodomy laws, that case was overturned in 2003, but seeing as we might yet return to that status quo, we thought it was worth discussing. Follow us on Twitter @fivefourpod. Subscribe to our Patreon to support us and get premium and ad-free episodes, access to special events, to our Slack, all sorts of shit. And we'll see you next week.
0:51:48.6 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin, and our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks, at Chips NY, and our theme song is by Spatial Relations.
[music]
0:52:17.6 Michael: Sorry, I didn't take any vitamins today, by the way.
0:52:22.3 Rhiannon: Switching it up.
0:52:24.8 Michael: The exact opposite issue where we had to go to the gym again at 6:00 AM and I was like, "I'm not taking it right now, I'm gonna take it when I get back," and then I just realized I didn't take it when I got back so...
[chuckle]