Trump threat endures
Although there are reasons to be skeptical that Donald Trump will run for president in 2024, one thing could push him into it: Mounting legal troubles. With his potential crimes related to the insurrection becoming clearer, he is reportedly growing more serious about running, reasoning that as a candidate, he will be harder to prosecute.
As it happens, this is unfolding even as the Supreme Court has announced plans to hear a case next term that could upend democracy. The court will likely validate in some form the “independent state legislature” theory, which could expand the power of state legislatures over elections in radically anti-democratic ways.
That has generated much discussion of how the theory could enable hyperpartisan gerrymandering. But it could also enable more election subversion, which could dovetail with the looming Trump threat in combustible ways.
Even if Trump does not run, the tendencies he has unleashed - Republicans are running for positions of control over election machinery while essentially vowing to treat future elections as subject to nullification - could be made more dangerous by the court’s ruling.
The case, Moore v. Harper, concerns whether the North Carolina state legislature is precluded from executing an extreme partisan gerrymander by state courts’ interpretation of the state constitution. If the Supreme Court rules in the legislature’s favor, the court could endorse some version of the theory, which holds that state legislatures have near-plenary control over election rules.
This is supposedly grounded in “originalist” readings of the Constitution. However, recent scholarship has debunked this, documenting that founding-era understandings gave a central role to state constitutions and courts in overseeing states’ setting of election rules.
Regardless, what if the court blesses the theory anyway? At least four justices have potentially signaled openness to doing so.
Most obviously, state legislatures could go hog wild with gerrymanders and possibly with restrictions on voting, though federal checks might limit the latter. As elections expert Richard Hasen notes, state legislative power to set basic election rules would be unchecked by “the state constitution as interpreted by the state supreme court.”
But supercharged election subversion would also become a very live possibility.
First, note that this would not make it easier for a state legislature to simply appoint new electors for a presidential candidate just after he loses the popular vote. Many federal constraints on that would remain, such as the election day deadline for states to specify the manner of appointing electors, as well as other federal constitutional protections.
But what if a state legislature and governor passed a law before election day giving the state legislature power to appoint electors regardless of the popular vote? Well, if the court enshrines the theory, this might not be subject to state judicial and state constitutional checks.
“Under the theory, state constitutions could no longer serve as a check on a legislature that seeks to replace the voters’ voice with their own in selecting presidential electors,” Helen White, counsel at the nonpartisan group Protect Democracy, told me.
That would leave federal law and federal constitutional checks as the only defense. “Those checks are robust after the election,” White said. “But before the election, because this has not been done in modern history, we would be in relatively uncharted and radically undemocratic territory.”
That might seem far-fetched: No state legislatures did this in 2020, and some efforts to do this have since failed. But now Republicans such as Trump-endorsed Doug Mastriano, running for Pennsylvania governor, have endorsed the idea that electors should be appointed in defiance of the popular vote.
So all this raises a question for Mastriano and candidates like him: Will you seek a law giving the state legislature power to appoint electors on its own? We probably won’t like the answer - if Mastriano answers truthfully.
But the election subversion threat does not end there.
To put this in perspective, note that state legislatures have already pushed bills appropriating more control over elections. A recent report by Protect Democracy and other groups documented dozens of examples, including efforts to subject outcomes to nakedly partisan audits - which could create pretexts for overturning elections - and measures increasing state legislatures’ control over the administration of elections themselves.
Under various versions of the theory, such measures would not be subject to review by state judicial or state constitutional review, White says: “State constitutional provisions could not be used to challenge any of these bills if enacted.”
And what might that produce?
“One nightmare scenario is that a Republican state legislature, potentially with a Trumpist governor, passes a law saying the state legislature itself is the final canvassing board for the state,” Matthew Seligman, an election law scholar, told me.
“Under the theory, state courts and state constitutions would place no constraints on such a radically anti-democratic partisan putsch,” Seligman continued.
If and when many Republicans win races this fall for positions of control over elections while pledging fealty to Trump’s insurrectionist spirit, is it not likely we will see more such radical state legislative efforts next year in advance of the presidential race?
Even if Trump does not run, the Trumpist dogma that GOP election losses are inherently illegitimate is plainly outlasting him. It is unsettling to imagine a landscape in which the ground is made more fertile for it to continue metastasizing.