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Retired federal judge eviscerates the ‘independent state legislature’ theory of the U.S. electoral system

Columnist Eric Black argues nothing about the theory can be reconciled with the modern concept of what it means for a presidential candidate to “carry” a particular state.

Minnesota House of Representatives
Minnesota House of Representatives
MinnPost photo by Peter Callaghan

Bluntly summarized, the hilariously lame “independent state legislature” theory of presidential elections, goes like this:

Having held an election for president in which Candidate A (let’s call him Joe Biden) carried State Z, the legislature of State Z has the power to appoint electors who are pledged to cast the state’s electoral votes for Candidate B (let’s call him Donald Trump) for any reason or no reason at all, other than that the legislators are Republicans, and the voters chose the Democratic candidate.

In other words, the “independent state legislature” theory is a theory in which the state legislature is “independent” of the power of the people of the state to vote for the presidential ticket of their choice. Having taken all the trouble of holding a presidential election in their state, the legislators can decide to overrule the result of that election and award the state’s electoral votes to the presidential candidate who lost the state.

Please pause a moment to consider whether there is anything about this theory that can be reconciled with the modern concept of what it means for a presidential candidate to “carry” a particular state. It means that voters of the state chose Candidate A, but the legislature decided to appoint a slate of electors who would who cast the state’s electoral votes for Candidate B, or, especially, Candidate T (for Trump).

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I belabor this point, even though it’s not that complicated, because in the nether world of Trump worshippers, any theory – however lame and however deeply undemocratic – is valid if it means that Trump was reelected in 2020.

Now meet (if you haven’t already met him via his riveting and sterling testimony to the congressional committee investigating the Jan. 6 riot at the Capitol) retired federal Judge J. Michael Luttig. 

Luttig disturbed his retirement to testify before the U.S. House committee investigating the violent riots organized by Trump supporters to try to prevent the U.S. House from certifying Joe Biden’s solid-but-not-quite-landslide victory over Trump in the 2020 election.

Because of both his sterling credentials as a judge and also because of his Republican origins, Luttig was a star witness for the committee. Luttig came through big-time for those who put him on the stand, testifying, for example, that if the efforts by the mob to overturn the result were successful, they “would have plunged America into what I believe would have been tantamount to a revolution within a constitutional crisis in America, which in my view, and I’m only one man, would have been the first constitutional crisis since the founding of the republic.”

But I rise today not to review Luttig’s testimony but to call attention to a fresh essay on The Atlantic magazine’s website in which he explores and eviscerates the “independent legislature theory,” calling it “a doctrine (that) would be “antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution.”

I’ll wrap this up after a few brief quotes from his argument, but you can skip those and read the full Atlantic piece via the link below. (I’m not sure whether non-Atlantic subscribers can get it, so I’ll add a couple of excerpts from Luttig’s full argument.)

Luttig summarized the view of those who find merit in the “independent state legislature” theory by referring to “allies of the former president (who have) argued that the theory, as applied to the electors clause, enabled the state legislatures to appoint electors who would cast their votes for the former president (i.e. Trump), even though the lawfully certified electors were bound by state law to cast their votes for Joe Biden because he won the popular vote in those states.”

Even though it doesn’t arise from the 2020 presidential election, a federal lawsuit titled Moore v. Harper out of North Carolina will give the Supreme Court an opportunity to decide whether the “independent state legislature” theory is valid. If North Carolina wins the case, Luttig argues, it will suggest that the Supreme Court has accepted “independent state Legislature theory” with frightening implications for the future of presidential elections in states with Republican-controlled legislatures.

If the court does so, Luttig suggests, it would clarify not only that state legislatures can gerrymander congressional districts without any limitation but also that they can directly appoint a slate of presidential electors irrespective of which presidential candidate the voters of the state might prefer.

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Luttig’s full Atlantic piece, titled “There Is Absolutely Nothing to Support the ‘Independent State Legislature’ Theory,” and which I’ll warn is not terribly reader friendly, can be accessed via this link