In recent weeks, we’ve gotten an even greater glimpse into Donald Trump’s efforts to discredit and overturn the results of the 2020 election. From the clownish ongoing audit in Arizona to the revelation of Jeffrey Clark’s insane and rejected December plan for the Department of Justice to cajole legislatures in states Biden won into overturning those results to the attorneys being sanctioned for their frivolous Trump election lawsuits, the 2020 election subversion attempt is being shown every day to have been a Keystone Cops Coup.
The crude and failed nature of Donald Trump’s attempt to destroy the 2020 election has made it easy to dismiss as overblown concerns about the integrity of the 2024 election too. After all, court after court rejected attempts by Trump and his allies in the aftermath of the November 2020 count to prove that fraud affected the election results. Despite Trump’s attempts to pressure state election officials, governors, state legislators, and officials at the U.S. Department of Justice like Clark to get state legislatures to meet and declare new electoral college votes for him after the presidential vote was certified for Biden in each challenged state, the system (barely) held, and Trump was removed from office on January 20, 2021.
But there has been a subtle shift in how Trump and his allies have talked about the supposed “rigging” of the 2020 election in a way that will make such claims more appealing to the conservative judges and politicians that held the line last time around. Come 2024, crass and boorish unsubstantiated claims of stealing are likely to give way to arcane legal arguments about the awesome power of state legislatures to run elections as they see fit. Forget bonkers accusations about Italy using lasers to manipulate American vote totals and expect white-shoe lawyers with Federalist Society bona fides to argue next time about application of the “independent state legislature” doctrine in an attempt to turn any Republican presidential defeat into victory.
Trump signaled as much in his March 2021 interview with the Washington Post’s Carol Leonnig and Phil Rucker for their book, I Alone Can Fix It, and key conservative operatives have sent the same signals according to Jane Mayer’s recent blockbuster reporting in the New Yorker about the big money behind the Big Lie.
Trump’s interview with Leonnig and Rucker got attention for Trump saying that he spoke to a “loving crowd” on Jan. 6 before some of them violently stormed the Capitol to try to stop Congress’s electoral college vote count. But what caught my ear was Trump’s explanation of why he said the election was “rigged.” Even putting supposed “massive” fraud aside, he said in posted audio of the interview,
the legislatures of the states did not approve all of the things that were done for those elections. And under the Constitution of the United States, they have to do that. And the Supreme Court, they didn’t find fact—don’t forget, they didn’t say they disagreed—they said we are not going to hear the case. I’m very disappointed in the Supreme Court. Had Mike Pence had the courage to send it back to the legislatures, you would have had a different outcome, in my opinion…. Before you even start about the individual corruptions … when you are handed these votes, and you know that the legislature of any one of those states did not approve those vast changes—hours, days, when to vote—it was all done, local politicians and local judges—right there you should have sent them back to the legislatures. And I can show you letters from legislatures. They wanted them back… Had they gotten them, it would have been a much different story.
It wasn’t just Trump advancing this argument to try to overturn the election. It also was a cadre of conservative activists like Leonard Leo, co-Chairman of the Federalist Society, whose Orwellian-named “Honest Elections Project” pushed the same argument before the Supreme Court. As leading election law scholar Nate Persily told Jane Mayer for the New Yorker, the Independent State Legislature doctrine is “giving intellectual respectability to an otherwise insane, anti-democratic argument.”
So how does this argument work? Article II of the Constitution of the United States provides that state legislatures get to set the “manner” for choosing presidential electors. Similarly, Article I, section 4 gives the state “legislature” the power to set the time, place, and manner for conducting congressional elections, subject to congressional override. In practice, these clauses have been understood as allowing the legislature to set the ground rules for conducting the election, which are then subject to normal state processes: election administrators fix the details for administering the vote, state courts interpret the meaning of state election rules, and sometimes judges and officials decide when state rules violate state constitutional rights to vote.
For example, in the run-up to the 2020 election, the Pennsylvania Supreme Court decided that a state law requiring that mail-in ballots must arrive by Election Day to count violated the state constitution’s provisions protecting voting rights in light of the election being conducted during the pandemic. It extended the receipt of ballots by three days.
Republicans challenged that extension, arguing that the U.S. Constitution makes the legislature supreme, even if the state legislature would otherwise be violating the state constitution as determined by the state supreme court. This is the “independent state legislature” doctrine because it proposes that the legislature is supreme against all other actors that might run elections. This is a wacky theory of legislative power, but it is one that four Supreme Court justices (Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas) expressed support for in various opinions during the 2020 elections, and it echoes an alternative argument that former Chief Justice William Rehnquist, joined by Justice Thomas and former Justice Antonin Scalia, made in the Bush v. Gore case ending the 2000 election and handing victory to Republican George W. Bush.
Justice Alito thought enough of the argument in the 2020 Pennsylvania case to order ballots arriving in Pennsylvania in the three days after Election Day to be set aside for possible exclusion from the count. Fortunately, there were only about 10,000 such ballots, and they did not determine the outcome of the presidential race (Biden won there by about 80,000 votes.)
The 2020 fight over the independent state legislature doctrine was a close call. It would not be at all surprising to see at least five or perhaps all six conservative justices embrace the argument next time it comes before the court in a timely way.
It’s easy to picture how this might play out in the next presidential election. Imagine that a state legislature sets forth general rules for conducting the 2024 election, but it does not provide every detail about how the election is run. Republican legislatures in states won by the Democratic candidate could seize on some normal election administration rule created by a state or local election administrator or some ruling from a state court, and argue that implementation of the rule renders the presidential election unconstitutional, leaving it to the state legislature to pick a different slate of electors.
Now maybe the courts won’t bite on this theory—in 2020, Justice Kavanaugh seemed wary of the argument because it came very late in the process. But it might not take court involvement to create chaos and try to flip election results. A state legislature dominated by Republicans in a state won by Democrats could simply meet and declare that local administrators or courts have deviated from the legislature’s own rules, and therefore the legislature will take matters into its own hands and choose its own slate of electors.
Should Republicans control Congress in early 2025, they could well accept these arguments as they count Electoral College votes, even as such arguments were rejected by a Democratic-led Congress (over the objections of well over 100 Republican members of Congress) in 2020. They might try to count the votes from the state legislature rather than votes reflecting the people’s will. The independent state legislature argument—which would essentially overturn U.S. elections to make the loser the winner—would have an air of respectability that would not depend upon a claim that the election was rife with fraud or stolen, but that the actions of the state’s governor, or courts, or election administrators violated the Constitution by usurping the legislature’s rights. Again, all of this is scarily plausible.
The Jan. 6 insurrection, and Trump’s actions trying to change the electoral college votes in five states, was an attempted coup built on the Big Lie of voter fraud. But the potential coup next time will come in neatly filed legal briefs and arguments quoting Thomas Jefferson and wrapped in ancient precedents and purported constitutional textualism. It will be no less pernicious.