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The dual track realities of American democracy go like this:
- Former President Donald Trump is in a strong position, for now, to be one of two major presidential options presented to US voters in 2024.
- At the same time, the institutions on which the foundation of the US government are built continue the slow work of neutralizing a potential repeat of his previous attempt to sidestep the process and overturn the election.
The news Tuesday is that the US Supreme Court squarely rejected the fringe legal theory by which far-right activists and supporters of Trump hoped to be able to ignore election outcomes.
Add that ruling to these other concrete developments and percolations:
- A law to preempt insurrection 2.0. Congress last year passed a law to clarify that, no, the vice president cannot throw out electoral votes the president doesn’t like.
- Accountability for fake elector scheme. The Justice Department, in the form of special counsel Jack Smith, appears to be refocused on the Trump supporters who signed false certificates to the federal government, asserting they were the rightful electors for Trump in seven battleground states won by Joe Biden.
But it is Tuesday’s move by the Supreme Court that could be among the most consequential since it invalidates the fringe “independent state legislature” theory upon which Trump’s 2020 scheme was based.
The court’s liberal justices were joined by three members of its conservative majority to disabuse everyone of the idea that for hundreds of years Americans have been misinterpreting the word “legislature.”
The US Constitution’s elections clause stipulates that federal elections “shall be prescribed in each State by the Legislature.” Under the independent state legislature theory, now rejected by the Supreme Court, that means that state legislatures alone are in charge of federal elections and therefore are unaccountable to state courts.
The case at hand – Moore v. Harper – had to do with a 2022 North Carolina congressional map rejected by the state’s Supreme Court. But if justices had agreed that state legislatures were immune from state courts on these questions, it would have validated the idea pushed by Trump in 2020 that state legislatures could ignore election results and install their own presidential electors too. Read more about the implications for 2024.
Trump supporters thought a riff on the independent state legislature theory, written by the former Trump lawyer John Eastman, could have kept him in office past 2020, even though he lost the election.
Coincidentally, Eastman, who never thought the Supreme Court would endorse his scheme, is currently fighting to keep his law license in California, where disciplinary attorneys want him disbarred for his plan to overturn the 2020 election results.
Inspired by Eastman, Trump wanted then-Vice President Mike Pence to reject electors from key states, where Trump falsely alleged voter fraud, and hope that Republican-controlled state legislatures would select new electors to keep him in the White House.
Rather than wait for that kind of nightmare scenario – where electors selected by voters could be replaced by a partisan state legislature without state court review – a 6-3 Supreme Court majority got ahead of things.
“The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” wrote Chief Justice John Roberts for the majority, which also included the Trump-nominated Justices Brett Kavanaugh and Amy Coney Barrett.
CNN’s Joan Biskupic said it’s important that Roberts and the majority acted on the merits of the case, rejecting the independent state legislature theory when they could simply have sidestepped the issue.
“I think with 2024 looming, they probably thought, do it now, because there were challenges coming down the road that were similar,” Biskupic said on “Inside Politics” on Tuesday. “Do it now, do it outside of a presidential election year and get it done with.”
Trump, meanwhile, still believes the 2020 election should have been overturned and legislators in Wisconsin, Pennsylvania and Georgia, among other states, would have given him their electoral votes.
“(Pence) should have put the votes back to the state legislatures and I think we would have had a different outcome. I really do,” a combative Trump told CNN’s Kaitlan Collins during a CNN town hall in May.
It’s not news that Trump and his supporters take an alternate reality view of the law. They have similarly rejected his indictment for conspiracy and mishandling national security material as a politically motivated witch hunt.
They will continue to reject the charges even after CNN on Monday published audio of Trump meeting with people who did not have security clearance, rustling papers he said were a Pentagon battle plan for Iran, and seeming to admit that he did not have the power to declassify them.
“We have to be able to see the reality that two things can be true at the same time,” CNN’s political director David Chalian said on “Inside Politics” on Tuesday.
“This can be a dangerous, reckless, perhaps criminal bit of behavior by a former president of the United States, and it may not actually damage him politically – may not – inside the context of a Republican nomination race.”
Winning the Republican primary, by the way, requires appealing to a very different set of voters than winning the White House.
It’s also true that despite a decisive rejection of a fringe legal theory, there has been a clear rightward shift at the Supreme Court. It ended nationwide abortion rights by overturning Roe v. Wade and invalidated powers long utilized for public safety by the Environmental Protection Agency and other government agencies.
But on questions of the democratic process, multiple decisions this month have confounded the perception that a new conservative majority is bent on remaking the country.
In decisions this term, for instance, the justices declined to further erode the Voting Rights Act and ruled that Alabama must redraw congressional maps to include a new majority-Black district. That decision will have repercussions – already seen with a case involving Louisiana’s congressional map – that could jeopardize Republicans’ control of the House.
