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On Tuesday morning, the Supreme Court handed down a decision in Moore v. Harper, the case many believed would be the most important election law case of the modern era. The 6–3 opinion was authored by Chief Justice John Roberts, who is clearly back in the driver’s seat at the high court this year. In the opinion, the majority resoundingly rejected the fundamentally unserious “independent state legislature” theory that had been pushed by Republicans in North Carolina, and pushed out by a well-funded and highly motivated conservative legal movement that tried to make it sound minimalist, historical, and textualist. The theory pressed before the court would have given state legislatures virtually unchecked plenary power to draw new redistricting maps and pass restrictive voting laws. Those powers were to be immunized from review by state courts or other entities.
“The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections,” Roberts wrote, in the opinion, resolving a question that many believe the court should never have entertained in the first instance. When the case first surfaced at the high court, nobody was as forceful in sounding the alarm as conservative legal giant Judge J. Michael Luttig, who argued on the Amicus podcast last October that the ISLT, as it was known, posed an existential threat to democracy as we know it, and has repeatedly argued that it had no basis in the text or history of the Constitution. Luttig also played a key role after the 2020 election, in advising then–Vice President Mike Pence that there was absolutely no legal basis in claims by Donald Trump and his legal adviser John Eastman that Pence had the constitutional authority to toss certified ballots of electors in contested states to buy time to set aside the presidential election.
On Tuesday’s Amicus podcast, Luttig returned to discuss the resounding win for democracy in Moore v. Harper and the connection between that result and the fortunes of Donald Trump. Our conversation has been condensed and edited for clarity.
J. Michael Luttig: Today’s landmark decision by the Supreme Court was a resounding and reverberating victory for American democracy. Many believe the court should never have taken the case. I always believed actually, from December 2020 when the court denied review in the electors clause cases, that the Supreme Court had an affirmative obligation to decide the independent state legislature question, which it did today.
The procedure of the case as it arrived at the Supreme Court of the United States, the backstory, really, begins with Bush v. Gore, and the court’s decision in that case, in which Chief Justice Rehnquist was joined by Justices Scalia and Thomas, in which they raised the specter of an independent state legislature. They did not denominate it as such. Nor did they put much flesh on the bones of that theory, and the issue arose in Bush v. Gore in the context of a state’s legislative provisions, not state constitutional provisions, which are at issue in the independent state legislature theory, decided by the Supreme Court of the United States today.
So from Bush v. Gore, fast-forward to the 2020 presidential election, and long before the election, the former president and his allies began to argue for the so-called independent state legislature theory, as an interpretation of the electors clause of the Constitution. Those litigations were initiated in several of the states and they wound their way to the Supreme Court of the United States. And finally, it was in the first or second week of December of 2020 that the Supreme Court decided against taking the cases and therefore against deciding the independent state legislature theory. In my view, everyone could see, not even foresee, what the possibilities would be on Jan. 6 if the court did not take this case, because the independent state legislature theory was, as I’ve called it, the centerpiece of the efforts to overturn the 2020 presidential election.
Notwithstanding that the Supreme Court refused to hear the case, there were a number of the justices at that time who had already expressed interest in the issue. So there was never any question in my mind, or of those who followed the court closely, that having refused review right before the 2020 election, that the Supreme Court would have to decide the independent state legislature issue soon, and it chose to do it in Moore v. Harper, which arises not under the electors clause, but rather the elections clause of the Constitution.
Listen to the full show here:
Can we end with a reflection from you on Donald Trump and his connection to the decision in Moore v. Harper? Because in some sense, the green light for so much of what happened around Jan. 6 came from this theory.
The independent state legislature theory was the centerpiece of the former president’s effort to overturn the 2020 presidential election, without any doubt. And it is an intractable question, as evidenced by the fact that only the Supreme Court could decide it, which it did today.
But in the 24 hours that I advised former Vice President Pence, as to his obligations on Jan. 6, I had to do the best I could to come to a decision of what I thought about the independent state legislature theory. And in a short 24 hours of researching and thinking about it, I concluded that there was nothing to it whatsoever. And that was in the face of the former Chief Justice Rehnquist’s concurrence in Bush v. Gore. So fast forward to the 2020 election, and Trump and his allies argued for it. They didn’t get it, but neither was it rejected by the Supreme Court of the United States. Today, for the first time, it was. It has now been rejected.
The implications of the Supreme Court’s rejection today of the independent state legislature theory are enormous for the continuing investigations by the Department of Justice, the attorney general, and Jack Smith into the former president’s, and his allies’, conduct on Jan. 6. Today’s decision knocks the props out from under what would’ve been one of their principal defenses to charges of wrongdoing on Jan. 6.