U.S. Supreme Court rejects theory that helped underpin Trump attempt to replace electors | CBC News

The U.S. Supreme Court shot down a controversial legal theory that could have changed the way elections are run across the country, but left the door open to more limited challenges that could increase its role in deciding voting disputes during the 2024 presidential election.

The court’s 6-3 ruling Tuesday drove a stake through the most extreme version of the so-called independent state legislature theory, which holds that legislatures have absolute power in setting the rules of federal elections and cannot be second-guessed by state courts. 

“We beat back the most serious legal threat our democracy has ever faced today,” said Kathay Feng of Common Cause, whose lawsuit challenging congressional districts drawn by North Carolina’s Republican-controlled legislature triggered the case.

As Republicans have gained more power in state legislatures, the theory has become more popular on the right.

In 2020, the Trump campaign asked the Supreme Court to overturn a ruling by the Pennsylvania Supreme Court allowing the tallying of mail ballots received after Election Day in a case that many thought would pivot on the theory. But the high court simply ordered the late mail ballots to be segregated during the vote count and, when they were too few in number to change the outcome, did nothing further. 

In the most extreme case, some Trump legal advisers in late 2020 wanted to use the theory to let state legislatures replace electors won by Joe Biden with Trump-voting ones. They argued that state legislatures should have the power to declare the winner of presidential races.

The ruling was praised by former president Barack Obama and his onetime attorney general Eric Holder, among others.

Role of state supreme courts at issue

The independent state legislature theory stems from the clause in the U.S. Constitution declaring that state legislatures shall set the “time, place and manner” of elections for the U.S. Senate and House of Representatives. Advocates argue that shows the founders wanted to give legislatures ultimate power in federal elections.

The theory was alluded to by conservative Chief Justice William Rehnquist in the landmark 2000 case Bush v. Gore, after that contentious, razor-thin election. Rehnquist noted the clause suggested limits on whether the Florida Supreme Court could decide who would win the state’s presidential electors.

In the current case, North Carolina’s Republican-controlled legislature last year argued that the theory meant its state supreme court couldn’t overturn the map it drew that awarded a disproportionate share of the state’s 14 congressional districts to Republicans. But Chief Justice John Roberts, writing for the majority, dismissed that argument as historically and legally inaccurate.

“When legislatures make laws,” Roberts wrote, “they are bound by the provisions of the very documents that give them life.”

The court on Tuesday found that state courts still must act within “ordinary bounds” when reviewing laws governing federal elections, which could give another set of tools for those who lose election lawsuits in state courts to try to persuade federal judges to overturn those rulings.

“They’ve rejected a lot of the extreme stuff, but there is still a lot of room for ideological and partisan judging to come into play,” said Rick Hasen, a law professor at the University of California Los Angeles who filed an amicus brief in the case urging the court to reject the theory across the board.

Lawyer John Eastman, who espoused the independent state legislature theory in the election aftermath for Trump, told NBC News on Tuesday that the ruling made the situation “murkier than it was previously.”

Eastman predicted a “litigation bonanza,” with legal challenges to arise based on how states allow eligible citizens to vote, as well as after voting days. Eastman and some other Trump allies have characterized some changes made to 2020 election laws during the pandemic to allow for more mail-in ballots as being illegal, though those arguments were generally unsuccessful in courts. 

In recent years, mail-in balloting has been favoured by Democratic voters.

Thomas dissents

It is believed, based on individuals entering a Washington, D.C., courtroom in recent months, that special counsel Jack Smith is probing people with information on the 2020 alternate electors scheme. Smith has been assigned by the Justice Department to investigate efforts to overturn that election result as well as the riot at the U.S. Capitol on Jan. 6, 2021.

“We will see [future] cases, but I think almost certainly — unless something really screwy happens — they’re going to lose a lot,” said Cameron Kistler, a legal counsel at the non-profit group Protect Democracy.

Neal Katyal, a former acting solicitor general who argued the case for voting rights groups at the Supreme Court, said the ruling is “a signal that this United States Supreme Court, with a solid six justices behind it, will resist attempts by state legislatures to mess with the integrity of the 2024 election.”

Conservative Justice Clarence Thomas, who dissented on the case, warned that a signal is not enough. He bemoaned the majority’s refusal to spell out exactly when a state court would overreach.

“There are bound to be exceptions,” Thomas wrote. “They will arise haphazardly, in the midst of quickly evolving, politically charged controversies, and the winners of federal elections may be decided by a federal court’s expedited judgment.”