Independent state legislature at the Supreme Court

After three hours of oral arguments at the Supreme Court on Wednesday, only one thing is certain: If the justices want to blow up federal elections, they will have nothing to hide behind—not history, not logic, and certainly not the Constitution. The three lawyers defending democracy methodically dismantled the “independent state legislature” theory from every conceivable angle, debunking each myth, misreading, and misrepresentation deployed to prop it up. They bested the conservative justices who tried to corner them, identifying faulty reasoning and bogus history with devastating precision

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This idea was at the center of Donald Trump’s efforts to overturn the 2020 election, so it was a relief to hear five justices sound deeply skeptical that it has any basis in the Constitution.

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The petitioners are Republican leaders of the North Carolina Legislature. They are angry that the North Carolina Supreme Court struck down the congressional map that they drew after the 2020 census—which was, objectively, an extreme partisan gerrymander. The court found that the map violated various provisions of the North Carolina Constitution, including a guarantee that “all elections shall be free.”

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Scholars of American legal history, particularly in the founding era, have lined up in this case to explain why the ISLT is totally foreign to the laws and traditions of this nation. They have presented overwhelming evidence to support their position, evidence that is not remotely countered by the other side. There are so many political factors in this case. It is haunted by the ghosts of Bush v. Gore and Trump’s coup—both confirmation that the ISLT can be manipulated for scurrilous ends.

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But North Carolina Republicans decided to use this case to achieve a broader GOP ambition: the revival of a long-discredited doctrine known as the independent state legislature theory, or ISLT. This theory rests on the Constitution’s elections clause, which says the “times, places, and manner” of federal elections “shall be prescribed in each state by the legislature thereof.” It posits that this clause frees the state legislature from restraints imposed by the state constitution when regulating federal elections. Specifically, it would prevent state courts from enforcing those restraints when the legislature passes a law that violates them.

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That’s the argument that the Supreme Court considered, and rejected, in Bush v. Gore. [...] It’s the argument that Trump deployed when he tried to nullify millions of votes in 2020. And it’s the argument that Ginni Thomas, wife of Justice Clarence Thomas, relied upon when lobbying state legislators to appoint “alternate electors” who would support Trump.
  Slate

And that last bit is why Clarence Thomas, were he an honest justice with the integrity you should expect of a Supreme Court justice, would recuse himself. He did not.

If the Supreme Court did adopt the ISLT, it would be flooded with disputes over election procedures, with no principled test to decide each case.

But, of course, they could just decide not to hear those cases, and they don't have to give any reason why.

A number of conservative legal luminaries filed [amicus] briefs in Moore v. Harper opposing it, including Thomas Griffith, a former judge appointed by George W. Bush; J. Michael Luttig, a former judge appointed by George H.W. Bush; Steven Calabresi, a co-founder of the Federalist Society; Ben Ginsberg, a renowned GOP election lawyer; and Charles Fried, Ronald Reagan’s solicitor general. In an unprecedented move, the chief justices of all 50 states’ Supreme Courts urged SCOTUS not to adopt the theory for fear of confusion and mayhem at every level of the judiciary.

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Reasonable Republicans recognize a reality described by Neal Katyal, who argued that “the blast radius” from ISLT “would sow elections chaos,” “invalidating 50 different state constitutions” and countless statutes empowering state courts to regulate elections.

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Katyal faced intense pushback from Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito, three fanatical believers in the ISLT, but he did not yield. He corrected Gorsuch’s bad history when the justice accused him of defending Virginia’s three-fifths clause. [...] He pushed back hard against Alito’s efforts to malign the North Carolina Supreme Court as an out-of-control partisan usurper, explaining that it sought to impose only “ordinary checks and balances.” And he soothed Justice Brett Kavanaugh by assuring him that there could be some “federal judicial review” here, just under a “sky-high standard” of deference to state courts.

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Alito continued to slander the North Carolina Supreme Court by mischaracterizing its precedents, but [Don Verrilli, also opposing the ISLT,] deftly corrected his mistakes. You could actually hear Alito rhythmically thumping the bench, which he tends to do when he tries and fails to pin down counsel.

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By the time [Solicitor General Elizabeth] Prelogar approached the podium, the arguments were pointing toward a rough consensus: In rare, extreme cases, a state Supreme Court might misinterpret an election law so egregiously, so indefensibly, that SCOTUS could intervene. In most situations, though, state courts still get final say over the manner of federal elections.

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In the end, Moore v. Harper probably comes down to Justice Amy Coney Barrett. Thomas, Alito, Gorsuch, and Kavanaugh have all endorsed the ISLT in the past. Roberts, along with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, clearly has no desire to revive it.

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So it was noteworthy that Barrett sounded audibly skeptical throughout Wednesday’s arguments.

Yes, and she sounded fairly certain she wouldn't vote to overturn Roe in her confirmation hearing, but she did.

[Barrett] essentially asked Katyal how the court should write a decision rejecting the ISLT. And she strongly implied to Verrilli that SCOTUS did not even have jurisdiction to hear the case.

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Katyal was in top form on Wednesday, playing both advocate and historian. The ISLT, he explained, is refuted by 233 years of history, “rejected by the Articles of Confederation, rejected by the early state constitutions, rejected by the founding practice,” and repudiated by the Supreme Court’s precedents. To accept the theory, he told the justices, “you’d have to ignore the text, history, and structure of our federal Constitution as well as nearly every state constitution today.”

...but hey, do what you want...you will anyway.

UPDATE:

I did not realize there was a companion case to Moore v. Harper.  Will this one go to the Supreme Court, too?  Will the Supreme Court's decision in Moore v. Harper have any effect on this one?  I have questions.