We have seen more of Donald Trump's attempts to overturn the results in the 2020 election. The 2020 election subversion plot is constantly being revealed to be a Keystone Cops Coup, from the absurd ongoing audit in Arizona to Jeffrey Clarks rejected December plan for Department of Justice to persuade legislatures in states Biden won to overturn those results to the sanctioning of the attorneys for their frivolous Trump election lawsuits.AdvertisementIt is easy to dismiss the crude and unsuccessful nature of Donald Trump's attempts to destroy the 2020 elections as concerns over the integrity of the 2024 elections. Trump and his aides tried to prove fraud in the election results, but court after court rejected them. Despite Trump's efforts to press state election officials, governors and state legislators and U.S. Department of Justice officials like Clark to get state legislatures meeting and declaring new electoral college votes to him after the presidential vote in each state was certified for Biden, the system failed and Trump was forced to resign on January 20, 2021.AdvertisementAdvertisementAdvertisementThere has been a subtle shift in the way Trump and his associates have spoken about the alleged rigging in the 2020 election. This will appeal to conservative judges and politicians who remained firm last time. In 2024, boorish and unsubstantiated claims about stealing will be replaced by legal arguments about state legislatures' extraordinary power to conduct elections as they please. Don't make absurd claims about Italy using lasers in order to manipulate American votes. White-shoe lawyers with Federalist Society bonafides will argue next time about the application of the independent state legislative doctrine to try to transform any Republican presidential defeat into victory.AdvertisementTrump made the statement in his March 2021 interview to the Washington Posts Carol Leonnig, Phil Rucker, for their book, I Alone Can Fix It. Jane Mayers' recent blockbuster reporting in The New Yorker about big money behind Big Lie, also indicated the same sentiments.Trump's interview with Leonnig, Rucker attracted attention because he said that he spoke to a loving audience on Jan. 6, before some of them stormed Capitol to stop Congress from counting the electoral college votes. What caught my attention was Trump's explanation for why he claimed the election was rigged.AdvertisementAdvertisementThe legislatures of the state did not approve everything that was done in order to hold those elections. They are required to do this under the Constitution. The Supreme Court didn't find the fact. Don't forget that they didn't disagree with the Supreme Court. They said they were not going to hear this case. I am very disappointed with the Supreme Court. I believe that Mike Pence would have sent it back to the legislatures. You should not even begin to discuss the individual corruptions that you were handed these votes. The legislatures of all those states didn't approve the vast changeshours, days or when they were to be voted. Local politicians and judgesright there should have sent them back. I have letters from the legislatures. They wanted them back. If they had gotten them, it would be a different story.AdvertisementThis argument was not just Trump's to try and overturn the election. It was also a group of conservative activists such as Leonard Leo (co-chairman of Federalist Society), whose Orwellian-named Honest Elections Project advanced the same argument before Supreme Court. Jane Mayer of the New Yorker was told by Nate Persily, a leading election law scholar, that the Independent State Legislature doctrine gives intellectual respectability to an otherwise insane, antidemocratic argument.AdvertisementHow does this argument work? The Constitution of the United States, Article II, provides that the state legislatures can decide the method for electing the president. The same applies to Article I, Section 4. This section gives the power to the state legislature to determine the time, place and method for conducting the congressional elections. However, this is subject to congressional override. These clauses allow the legislature to establish the ground rules for conducting an election. This is then subject to state processes. Election administrators set the details of administering the vote. State courts interpret state election rules. Sometimes judges and officials make decisions about whether state rules are in violation of state constitutional rights to vote.AdvertisementIn Pennsylvania, for example, the Supreme Court ruled that a state law that required that mail-in ballots be received by Election Day to count in 2020 violated state constitutions protecting voting rights, given that the election was held during the pandemic. It extended the deadline for receiving ballots by three more days.Republicans resisted the extension by arguing that the U.S. Constitution made the legislature supreme even though the state legislature might otherwise have violated the state constitution as interpreted by the state supreme Court. Because it asserts that the legislature is superior to all other actors who might run elections, this is called the independent state legislature doctrine. Although this is an absurd theory of legislative power it was supported by four Supreme Court justices (Samuel Alito and Neil Gorsuch), during the 2020 elections. It also echoes an argument that former Chief Justice William Rehnquist and Justice Antonin Scalia made in the Bush-v. Gore case, which ended the 2000 election and gave victory to Republican George W. Bush.AdvertisementAdvertisementJustice Alito was sufficiently impressed by the argument in 2020 Pennsylvania to order that ballots arrived in Pennsylvania within three days of Election Day to be exempted from the count. There were only 10,000 of these ballots and they didn't determine the outcome of this presidential race. (Biden won it by approximately 80,000 votes.It was close to the end that 2020 saw the fight over the independent legislature doctrine. It wouldn't be surprising to see at most five, or even all six conservative justices accept the argument the next time it is brought before the court.It is easy to see how this could play out in next year's presidential election. Imagine that the state legislature establishes general rules for the conduct of the 2024 election but does not detail how it will be run. Republican legislatures in the states won by the Democratic nominee could take advantage of any normal election administration rule made by a state or local electoral administrator, or a ruling from a court of state, to argue that the implementation renders the presidential election invalid. It is up to the state legislature then to choose a new slate of electors.AdvertisementAdvertisementAdvertisementPossibly the courts will not accept this theory. Justice Kavanaugh appeared wary of the argument in 2020 because it was very late in the process. It might not be necessary for the court to cause chaos and attempt to change election results. In a state that was won by Democrats, a Republican-dominated state legislature could just meet to declare that local courts or administrators have violated the rules. The legislature can then choose its own slate of voters.If Republicans are elected to control Congress in 2024, they might accept these arguments when they count Electoral College voters. In 2020, such arguments were rejected in a Democratic-led Congress over the objections of more than 100 Republican members. They may try to count votes from the state legislature, rather than those reflecting the will of the people. Independent state legislature arguments would effectively overturn U.S. election results to make the loser the victor. This would have an air respectability that wouldn't depend on a claim that election was rife in fraud or stolen but that the actions taken by the governors, courts or election administrators violated Constitution rights. All of this is frighteningly plausible.Trump's attempts to alter the electoral college votes in five US states was an attempt at a coup based on the Big Lie about voter fraud. The next attempt at a coup will be in neatly filed legal briefs, arguments quoting Thomas Jefferson, and wrapped in old precedents and purported constitutional textsualism. It will not be less dangerous.
