The radical legal theory that could upend the 2024 election
In a 2018 address to the Federalist Society, Supreme Court Justice Clarence Thomas "joked" that Leonard Leo, a right-wing operative, was the "number three most powerful person in the world."
Thomas may need to revise his ranking.
For decades, Leo has worked to reshape the American judiciary. Leo first met Thomas in 1990 in Washington, DC, when Leo was a law clerk and Thomas was an appellate judge. Leo then helped "Thomas through his contentious confirmation process for the Supreme Court" before decamping to work at the Federalist Society. As the organization's longtime executive vice president, he cultivated an entire generation of lawyers and judges that shared Thomas' far-right judicial philosophy.
While maintaining his day job at the Federalist Society, Leo began developing a network of conservative donors to help confirm these ideological foot soldiers to the federal bench. During the George W. Bush administration, Leo helped raise millions — much of which was funneled into a new non-profit, the Judicial Crisis Network — to support the confirmations of Justice Samuel Alito and Chief Justice John Roberts. The money was spent "on ads, telemarketing and the mobilization of 'grassroots' groups."
During the Trump administration, Leo's influence expanded. He raised more money through an opaque network of interlocking non-profit groups. At times, he took a leave of absence from the Federalist Society to join the White House formally, advising Trump on Supreme Court nominees and working to secure their confirmation. He played a central role in the selection and confirmation of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
The right-wing supermajority on the Supreme Court reflects Leo's vision, and it has already resulted in radical changes. In 2022, these justices overturned Roe v. Wade and kneecapped the federal government's ability to combat climate change.
But Leo is not satisfied.
Leo has stepped down from his day-to-day responsibilities at the Federalist Society to pursue an even more audacious agenda. According to reports by ProPublica and the New York Times, Leo recently raised $1.6 billion for a new political advocacy group, Marble Freedom Trust. That money came from a single donor, "ultra-secretive Republican businessman" Barre Seid.
These funds will be available for Leo to pursue his latest initiative: an effort to give state legislatures unfettered authority over federal elections. It is a fringe legal argument advanced by Donald Trump's lawyers in their effort to overturn the 2020 presidential election. If adopted by the federal courts, it could throw 2024 and future elections into chaos. But it is being taken very seriously by Leo and several of his allies on the Supreme Court.
Taking an unserious theory very seriously
In a series of opinions authored by Chief Justice Roberts, the Supreme Court has already gutted many federal voting rights protections. In 2019, for example, Roberts ruled that federal courts cannot do anything about partisan gerrymandering. The ruling means that if the party in control of a state legislature manipulates political maps to enhance its power, federal courts can do nothing.
North Carolina is a closely divided state. In 2020, Trump, with 49.93% of the vote, narrowly defeated Biden, with 48.59% of the vote. But, after the 2020 Census, Republicans in the North Carolina legislature created gerrymandered Congressional districts that were so extreme that an evenly divided popular vote would result in "10 of the 14 seats to the Republicans and only four to the Democrats." The map created by the Republican legislature "was a radical statistical outlier more favorable to Republicans than 99.9999% of all possible maps."
Federal courts, after Robert's ruling, were not going to get involved. But voters sued in state court, arguing the maps "violated the [North Carolina] constitution’s 'free elections clause,' among other provisions." The North Carolina Supreme Court agreed with this argument, calling the maps "an egregious and intentional partisan gerrymander… designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.”
The legislature effectively ignored that decision and produced another gerrymandered map. Ultimately, the state courts ordered "a special master to create a fair map for the 2022 congressional elections."
Two Republican members of the North Carolina legislature filed an emergency appeal with the Supreme Court seeking to restore the gerrymandered maps. The basis of the appeal is a radical legal doctrine called the independent state legislature theory. The independent state legislature theory is based on a hyper-literal interpretation of the Elections Clause of the Constitution:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.
Advocates of the independent state legislature theory argue that this means that, apart from Congress, the state legislature has absolute power over the administration of elections. This power, according to the theory, cannot be constrained by state constitutions or state courts.
The most important thing to know about the independent state legislature theory is that it makes no sense. State legislatures do not exist independently. They are created and constrained by state constitutions. And state courts interpret state constitutions.
The idea that the intention of the Election Clause is to allow state legislatures to violate the state constitution is absurd. Indeed, "many framers — including James Madison — voted to adopt state constitutions that regulated federal elections, as North Carolina’s does today." And, of course, most laws passed by state legislatures must be signed by a governor to take effect. The independent state legislature theory has been rejected by the Supreme Court for more than 100 years and as recently as 2019.
The independent state legislature theory was promoted by Trump's lawyers after the 2020 election to argue that state legislatures could simply ignore the election results and appoint electors pledged to Trump. Such actions, according to the independent state legislature theory, would be unreviewable by state courts even if they directly violated state constitutions.
In March, the Supreme Court rejected the North Carolina Republican legislators’ emergency petition. But Justices Alito, Thomas, and Gorsuch dissented from the ruling. In their dissent, the three justices cite the independent state legislature theory:
The Elections Clause provides that rules governing the “Times, Places and Manner of holding Elections for Senators and Representatives” must be “prescribed in each State by the Legislature thereof.” Art. I, §4, cl. 1 (emphasis added). This Clause could have said that these rules are to be prescribed “by each State,” which would have left it up to each State to decide which branch, component, or officer of the state government should exercise that power, as States are generally free to allocate state power as they choose. But that is not what the Elections Clause says. Its language specifies a particular organ of a state government, and we must take that language seriously.
Justice Kavanaugh did not join the dissent, but in a separate concurrence, says he agrees with the dissent that the emergency petition by the North Carolina Republican legislators "advanced serious arguments on the merits." Kavanaugh just thought it was too late to change the maps for 2022. All four justices essentially invited the legislators to seek Supreme Court review on a non-emergency basis.
While it takes five justices to win a case in the Supreme Court, accepting a case for review only takes four justices. On June 30, the Supreme Court accepted the case for review in its upcoming term. Last week, Leo showed his cards. He will use his considerable financial resources and influence to make the independent state legislature theory the law of the land. If he's successful, it could throw the 2024 election into chaos.
The path to chaos in 2024
Leo is advocating for the independent state legislature theory through a group called the Honest Elections Project. The group is a rebranding of the Judicial Education Project, which has longstanding ties to Leo.
Before the 2020 election, the Honest Election Project spent hundreds of thousands on dollars "warning against voting by mail and accusing Democrats of cheating." It filed "briefs in favor of voting restrictions in Nevada, Virginia, Texas, Wisconsin and Minnesota."
Last week, the Honest Elections Project filed a brief in support of the North Carolina Republican legislators seeking to restore gerrymandered maps. The brief aggressively argues in favor of the independent state legislature theory. It claims the theory represents "the plain meaning of the Elections and Electors Clauses." The Honest Elections Projects assures the Supreme Court that adopting the theory would not "wreak havoc upon elections nationwide.” Rather it would merely prevent "state courts and executives from ignoring or invalidating clear laws passed by the legislature." A similar brief submitted by the Republican National Committee and National Republican Congressional Committee accuses critics of the theory of "political histrionics."
John Eastman, "the lawyer who was behind then-President Donald Trump’s attempts to have states’ valid electors tossed out," filed a brief supporting the Republican North Carolina Legislators on behalf of the right-wing Claremont Institute. Eastman takes the independent state legislature theory to its logical conclusion. He argues that when state legislatures take action regarding the "time, place, and manner" of elections or the selection of presidential electors, they "cannot be constrained by anything in state law or even a state constitution to the contrary."
The brief echoes many of the arguments Eastman laid out in a memo he produced arguing that Pence could deliver the presidency to Trump on January 6, 2021. The memo, which has been described as "frightening" and "unconstitutional," begins with this sentence:
Article II, § 1, cl. 2 of the U.S. Constitution assigns to the legislatures of the states the plenary power to determine the manner for choosing presidential electors.
And this is at the top of page 3 of the Supreme Court brief Eastman filed last week:
The power assigned to the state legislatures under the Article II Electors Clause to direct the “manner” of choosing presidential electors—a provision parallel in text and purpose to the Elections Clause at issue here—was “plenary.”
In the memo, Eastman argued that actions taken by state courts in at least 7 states prior to the 2020 election were illegal under the independent state legislature theory. Therefore, Pence should ignore the electors submitted by those states and declare Trump the winner. Now Leo and the Republican Party are now attempting to take the pretext Eastman relied on to justify overthrowing American democracy and make it the law of the land.