Trump’s effort to overturn the 2020 election is dead, but a terrible legal argument seeking to upend American democracy is still alive.
Former President Donald Trump has been a private citizen for a little more than a month, but the Supreme Court just officially denied his final effort to overturn the 2020 election — although it did so over the protests of three justices.
Additionally, the Court announced that it will not prevent Manhattan District Attorney Cyrus Vance, Jr. from obtaining Trump’s tax records, as part of a longstanding criminal investigation into Trump’s businesses.
The Court’s decision not to intervene in this case about Trump’s financial records, Trump v. Vance, is not surprising. In that case, Trump’s lawyers argued that the former president was entitled to absolutely sweeping immunity from criminal investigation while in office — at one point claiming that a sitting president cannot be the subject of a criminal probe if he shoots someone on a public street. But the Supreme Court already rejected this sweeping immunity argument once, in a decision handed down last July. And Trump is no longer the sitting president, so his already weak arguments are now even weaker.
The Court also announced that it will not hear two consolidated election cases on Monday, and its decision not to hear Republican Party of Pennsylvania v. Degraffenreid and Corman v. Pennsylvania Democratic Party is also not surprising. The cases ask whether a small number of Pennsylvania absentee ballots that arrived after election day should be counted. But, because these ballots will not change the result of any federal election even if they are tossed out, the two Pennsylvania cases are moot.
What is surprising is that three justices — Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch — all voted to hear these two Pennsylvania cases. As explained below, these three justices’ votes show that the Court’s right flank is champing at the bit to dismantle one of the foundational premises of American election law.
The immediate impact of the Court’s decision not to hear the two Pennsylvania cases is that Trump and the Republican Party’s efforts to overturn the results of the 2020 election will not receive a hearing in the Supreme Court — and they appear to be dead. But the three dissenting votes in these Pennsylvania cases suggest that a larger battle over who gets to set the rules for American elections is very much alive.
The “independent state legislature” doctrine, briefly explained
The Pennsylvania cases both involve something known as the “independent state legislature” doctrine, a doctrine that the Supreme Court has repeatedly rejected at multiple points throughout its history, but that is now embraced by at least four members of the Court’s Republican majority.
The Constitution provides that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” A separate constitutional provision provides that “each State shall appoint” members of the Electoral College “in such Manner as the Legislature thereof may direct.”
Proponents of the independent state legislature doctrine claim that the word “legislature,” when used in this context, must refer to the legislative branch of government within a state — and thus the state’s judiciary and the state’s executive branch are both forbidden to shape the rules governing federal elections within a state. As Justice Neil Gorsuch wrote in an opinion last fall, “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.”
There are many problems with this interpretation of the Constitution, however. One of them is that the Court has repeatedly rejected the independent state legislature doctrine. For more than a century, the Supreme Court understood the word “legislature,” as it is used in the relevant constitutional provisions, to refer to whatever the valid lawmaking process is within that state. As the Court held most recently in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the word “legislature” should be read “in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”
Should the new doctrine advanced by the Court’s right flank take hold, the implications are potentially breathtaking. It could mean, for example, that Democratic governors in states like Wisconsin or Pennsylvania are forbidden from vetoing congressional redistricting bills, thus giving the Republican state legislature control over gerrymandering. It could mean that states are forbidden from drawing congressional districts using a nonpartisan commission, on the theory that a commission is not part of the “legislature.” And it could forbid state courts from enforcing the state’s constitutional safeguards against gerrymandering and outright disenfranchisement, because courts are not part of the “legislature.”
At least four justices support the independent state legislature doctrine
Indeed, the Pennsylvania cases involved just such a dispute between a Republican legislature and a state court. In the lead up to Pennsylvania’s 2020 election, the state supreme court held that mailed-in ballots that arrive up to three days after the election will be counted. Republicans sued, claiming that the state courts do not have the power to set the state’s election rules — only the legislature can.
As it turns out, the results of Pennsylvania’s federal elections would not change if these late-arriving ballots are tossed out, so the case is moot. And, while the majority did not explain why it decided not to hear these cases, it is likely that this mootness problem was at the front of their minds.
Yet three justices — Clarence Thomas, Neil Gorsuch, and Samuel Alito — all voted to hear the two Pennsylvania cases despite the fact that there is no longer a live controversy among the parties in those cases.
Thomas’s dissenting opinion argues that the Court needs to “provide clear rules for future elections,” but the Court’s decision in the Arizona State Legislature case already set a clear rule rejecting the independent state legislature doctrine. The real dispute in these cases was whether to change the longstanding rule that was applied in that Arizona case.
A fourth justice, Brett Kavanaugh, endorsed the independent state legislature doctrine in an opinion last October, although he did not vote to hear the Pennsylvania cases now that the election is over, most likely because those cases are moot. The Court’s three liberal justices, plus Chief Justice John Roberts, have all signaled that they will not vote to impose the independent state legislature doctrine.
So that leaves Justice Barrett, a Trump appointee, as the one uncertain vote on the Supreme Court in the likely event that the independent state legislature doctrine comes back to the Court in the future. The bottom line, in other words, is that, while the Supreme Court just handed Trump a final round of defeats, a radical argument that could potentially have seismic consequences for US democracy may still be in play.