The Washington PostDemocracy Dies in Darkness

Trump’s ploy to seize power lacked teeth. The Supreme Court may provide dentures.

Trump supporters ride with flags in front of the U.S. Capitol in Washington, D.C., on Jan. 7, 2021. (Ed Ou for The Washington Post)

John Eastman’s plan to keep President Donald Trump in office was fairly simple, when it came down to it. The president’s lawyer wanted states to change the slates of electors they sent to Washington to be formally counted as the 2020 presidential election was finalized. When states that had voted for Joe Biden failed to send certified slates in favor of Trump by Jan. 6, 2021, the plan switched to have Vice President Mike Pence reject those pro-Biden slates, asking states to reconsider.

It didn’t work. The vehicle for this was state legislatures, and Eastman worked with sympathetic elected officials in various places to encourage them to rescind their Biden slates in favor of Trump ones. In Pennsylvania, for example, he suggested a contrived rejiggering of submitted ballots to rationalize flipping the state’s electors from blue to red. But that required both that the legislature choose do to so, which it didn’t, and that the legislature be able to do so. Legal observers have been skeptical that such schemes would fly; after all, state supreme courts and state constitutions still have weight.

Were legislatures empowered to simply decide the outcome of elections without those checks, things might have been different. When he wrote an essay for CNN describing his concern about the threat posed to American democracy by Trump and his allies, noted conservative judge J. Michael Luttig pointed to the effort to formalize a legal theory — the “independent state legislature” doctrine — giving legislatures precisely that much power. Trump’s allies sought to have the Supreme Court uphold that doctrine before 2020 without success.

But: “Trump and Republicans are preparing to return to the Supreme Court,” Luttig wrote, “where this time they will likely win the independent state legislature doctrine, now that Amy Coney Barrett is on the Court and ready to vote.”

Luttig noted that in a case centered on North Carolina, four justices had already expressed openness to the doctrine. On Thursday, the court announced that it would hear that case in its next term.

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Let’s diverge for a moment to consider the state of Wisconsin. Trump won Wisconsin in 2016 by a remarkably narrow margin and lost it four years later by an even narrower one. The state has become a hub of his conspiracy theories about how the election was illegally or illicitly stolen by Democrats, with Republican legislators engaging in a lengthy “investigation” aimed at proving that Trump was robbed of victory. (That investigation has primarily so far surfaced more conspiracy theories and a surfeit of whining.)

What many Republican legislators wanted to do, though, was to hand over the state’s electors to Trump. Sen. Ron Johnson (R-Wis.) advocated explicitly for empowering the legislature to have the desired control over elections. That this might allow the legislature to subvert the will of the electorate probably doesn’t worry Johnson too much: He had privately admitted there was nothing suspect about Trump’s loss but nonetheless was tangentially linked to an effort on Jan. 6, 2021, to push Trump electors to Pence to potentially be considered.

Beyond the good senator, Wisconsin’s legislature is a good example of what might happen if state-level politicians were allowed more control over election outcomes.

On Wednesday, the state Supreme Court determined that an appointee to a state board named to that position by former governor Scott Walker (R) could retain his position despite the expiration of his term because no one had been confirmed to the seat. If you’re curious how this relates to the broader conversation, it’s that the lack of confirmation of a replacement is not a function of a lack of nominee; Gov. Tony Evers (D) has, in fact, nominated someone to replace that appointee, Sandy Naas. But the state Senate has refused to confirm her.

The Senate, as you might have guessed, is controlled by Republicans. Over the past three election cycles (like the U.S. Senate, the state Senate operates in six-year cycles), Republican candidates won 64 percent of the seats in the chamber, giving them a healthy majority. But, interestingly, those same Republican candidates won 51 percent of the vote, reflecting (also like the U.S. Senate) a broad divergence between election results and political power. The state Assembly isn’t much better. In the past three cycles, the GOP has won between 46 and 54 percent of the votes cast. They have been awarded between 62 and 65 percent of the seats in the Assembly.

This is who Ron Johnson thinks should be given absolute power over the state’s elections. This is who the Supreme Court might empower to do so.

As The Washington Post’s Robert Barnes writes in his report on the court’s taking up the North Carolina case, the most extreme iteration of legislative empowerment — control over elections without judicial checks in place — is unlikely.

“In a 2019 decision, all members of the court — including [Justices Clarence] Thomas, [Samuel] Alito, [Neal] Gorsuch and [Brett] Kavanaugh — seemed to envision some role for state courts,” Barnes writes. “In rejecting a role for federal courts in settling partisan gerrymandering lawsuits, Chief Justice John G. Roberts Jr. specified that challenges could go through state courts.”

In other words, the absolute empowerment of state legislatures seems unlikely. Recent court decisions, however, suggest that ruling out more extreme decisions as impossible is unwise. And even small steps toward giving legislatures power over elections might bring an Eastman-like plan closer to fruition — or mean a more sweeping empowerment in the near future.

There were checks in place to keep Trump from stealing a second term in office. The Supreme Court will consider whether those checks might, to some degree, be weakened.

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