Why Donald Trump may not 'need a mob' to steal the 2024 election: columnist

08 July 2022

For generations, the U.S. Supreme Court flatly rejected the independent state legislature doctrine, a crackpot legal theory arguing that state legislatures alone should be in charge of managing the way elections are handled — not governors, not state supreme courts, not judges. But thanks to the case Moore v. Harper, the radicalized 2022 edition of the High Court is willing to consider it.

Liberal New York Times opinion columnist Jamelle Bouie, in his July 8 column, lays out some reasons why it will be terrible for U.S. democracy if the Court’s GOP-appointed justices decide that the independent state legislature doctrine has merit.

“The long and short of the case is that North Carolina Republicans proposed a gerrymander so egregious that the state Supreme Court ruled that it violated the state’s constitution,” Bouie explains. “Republicans sought to restore the legislative map, citing the ‘independent state legislature doctrine,’ which asserts that state legislatures have almost absolute power to set their own rules for federal elections.”

Bouie continues, “Once passed into law, then, those rules cannot be overturned — or even reviewed — by state courts. A Republican victory at the Supreme Court would, according to the election law expert Rick Hasen, ‘radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections. It could essentially neuter the ability of state courts to protect voters under provisions of state constitutions against infringement of their rights.’”

The United States, for all the racism and sexism in its history, has had a strong system of checks and balances. But the independent state legislature doctrine is very anti-checks and balances. Arguing that state legislatures alone should govern a state’s administration of elections, it excludes a state’s executive and judicial branch from the equation.

Bouie describes the independent state legislature doctrine as a “radical interpretation” of the U.S. Constitution’s Elections Clause, noting that it “also extends to the Presidential Elections Clause” — and supporters of the theory believe that during a presidential election year, state legislatures should be allowed to “allocate Electoral College votes in any way they see fit, at any point in the process.”

“As I argued earlier this year, we could see Republican-led states pass laws that would allow them to send alternative slates of electors, overruling the will of the voters and doing legally what Donald Trump and his conspirators pressured Republicans in Arizona and Georgia to do illegally,” Bouie warns. “Under the independent state legislature doctrine, the next time Trump tries to overturn the results of an election he lost, he won’t need a mob.”

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