Shafer would not speak publicly this week because people under investigation aren’t chatty. But he has contended he did not push for the secrecy in the effort. After the 2020 meeting, he said the group was just checking a box in case Trump won a pending lawsuit in the matter. He didn’t.
But all the cloak and dagger stuff would not be needed if the U.S. Supreme Court rules in an upcoming case, one that gives credence to the “independent state legislature theory,” or ISL for short. The case, Moore v. Harper, which will be heard in the next term, wrestles with the idea that state legislatures are super-charged by the Constitution to oversee elections and don’t have to listen to state courts or governors. At least three of the conservative justices have previously kicked the tires on this notion.
The Moore case concerns itself with gerrymandering in North Carolina, but there are many who believe the court could free up state legislatures to just go ahead and pick electors to the Electoral College, overriding the popular vote.
This is certainly terrifying, especially in light of Trump’s antics and the legion of sycophants who exist in his gravitational pull. Seven states, including Georgia, have Republican legislatures but went to Joe Biden.
Vikram Amar, a University of Illinois law professor, calls the ISL theory “radical” and wrote that it could “have profound and wide-ranging implications for all future federal elections, including the 2024 presidential contest. If Americans aren’t following the case and worried about the outcome, they should be.”
Alarm bell ringing here.
Amar told me he worries the Supreme Court could inject the ISL theory with steroids and embolden state legislatures to enact laws giving them the power to pick Electoral College voters. And they would do so largely unencumbered by oversight. The legislatures couldn’t disregard popular votes after an election, as some in Georgia wanted to do. But they could do so by putting a statute in place before people go to the polls.
Or why bother even having people vote? Because the legislature will do it for them.
“This case is scary,” said Amar, “because if you believe in independent state legislatures, this is the logical path. Anytime you have institutions being freed from the oversight of other institutions, like governors or the courts, then that’s antithetical to U.S. democracy.”
The scheme is based upon language in the U.S. Constitution that says states shall appoint Electoral College voters “in such manner as the Legislature thereof may direct.” It’s based on the number of members of Congress and senators but it doesn’t mention people voting.
I called Emmet Bondurant, an Atlanta lawyer who in 2019 argued another North Carolina case on redistricting before the Supremes. He lost, with the conservative judges saying federal judges can’t bother with the ins and outs of political gerrymandering.
The case now before the court looks to make legislatures almost untouchable in this very political business. With very limited oversight of gerrymandering, Bondurant said, political parties “can essentially entrench themselves in power in perpetuity, both in state legislatures and in Congress. And with that comes the idea of the legislatures picking Electoral College members.
“It’s an extreme imagination of an extreme imagination,” he said.
Asked if this could happen, he said, “Intellectually? No, no and hell no. But with a partisan court, legal principles seem to be suspended whenever they choose.”
Josh Belinfante, a Republican lawyer from Atlanta who handles election cases, told me that even if the Republicans won the Moore case, other legal protections, like the Voting Rights Act or the Equal Protection clause, would prevent legislatures from going rogue in presidential elections.
“I don’t doubt some will make that argument (for legislatures picking electors) but I don’t see this as a likely outcome of this case,” he said.
I’m hoping he knows what he’s saying.