AOC: This is now a "judicial coup" and a constitutional crisis

Erin Schaff/The New York Times via AP, Pool

Settle down, Beavis.

Take deep breaths, count to 10, then repeat “party of norms” 50 times.


No credit for SCOTUS from AOC for having stopped that garbage Texas lawsuit after the 2020 election dead in its tracks, huh? If ever there was a moment for a “judicial coup,” that was it.

There is no “judicial coup” happening, nor will one happen next year or the year after.

But there might be a coup in 2024 at the level of state legislatures, which is what Ocasio-Cortez is worked up about.

The “independent state legislature” (|SL) theory claims that only state legislatures have proper authority to make the rules for federal elections in their states. Article I, Section 4 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, except as to the Places of chusing Senators.

“The Legislature thereof.” Not the governor — and not the state supreme court either. Under the ISL theory, whatever the legislature says about federal elections goes. Their power is plenary, unreviewable even by the local judiciary. If SCOTUS were to adopt that theory, it would mean redistricting maps drawn by hyperpartisan state legislatures could no longer be challenged in state court, as they currently are. (SCOTUS ruled a few years ago that they can’t be challenged in federal court, which would mean gerrymanders would be totally unchallengeable.) And it would mean that at least some rules set by state legislatures for presidential elections couldn’t be contested in state courts either.


Which is a bit of a pickle, as we’re only 18 months removed from a plot to convince legislatures in swing states to overturn the results of a presidential election. As of now, state courts still have the power to review election-related shenanigans by the local legislature. But if there are five votes on the Court for the ISL theory, that power will end. The ability of state legislatures to game elections without judicial interference will surge at the very moment Trump is busy trying to get “stop the steal” truthers like Doug Mastriano elected to high office at the state level.

Not a “judicial coup.” But coup-ish all the same.

All signs point to there being four conservative votes already in favor of the ISL theory. Alito, Gorsuch, and Thomas made approving noises about it in an opinion earlier this year and Kavanaugh joined a Gorsuch opinion in 2020 that included this passage: “The Constitution dictates a different approach to these how-much-is-enough questions. The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.” Amy Coney Barrett is probably the only thing standing between America and near-plenary power for state legislatures over federal elections at a point in history when legislatures have never been more willing to help a corrupt candidate thwart the will of the people in the name of gaining power.


Seems dodgy. Some scholars say it’s legally dodgy too:

“It is really a grave danger to American democracy to say that state legislatures are free from state constitutions to do whatever they want,” says [Vikram] Amar, who co-wrote an article for the Supreme Court Review at the University of Chicago about how the theory goes against an originalist understanding of the U.S. Constitution. “State constitutions are an important source of American democracy, limits and rights. And I think it would be terrible if the U.S. Supreme Court distorted federalism to reject that very important premise.”…

“The legislatures are created by constitutions. Their powers are defined by constitutions. The way those powers interact with other branches of state government is defined by state constitutions. Limitations on those powers are defined by state constitutions,” says [Carolyn] Shapiro, who wrote an upcoming article on the theory’s origins and implications for The University of Chicago Law Review. “The idea that there’s some kind of legislative power that is separate and apart from the ordinary constitutional limitations is really quite remarkable and lawless.”

That’s a good argument, that state legislatures by definition must operate within the bounds of state constitutions. What it doesn’t address is which branch of state government is lawfully empowered to interpret that constitution in matters involving federal elections. Normally the state supreme court is the authoritative interpreter in matters of law. What the ISL theory posits is that, under the U.S. Constitution, the state legislature is authoritative in this particular sphere.


That’s hard to grok, as the point of constitutions is to limit what majorities can lawfully do through their elected representatives. If SCOTUS upholds the ISL theory, those limits on crafting rules for federal elections are gone — at least at the state level. Presumably federal courts could review dubious election rules set by state legislatures, albeit only to ensure that they comply with federal law.

It’s not just progressives like AOC who are worried about what sort of mischief might be made by Trump-friendly state legislatures if the ISL theory becomes law. Conservative former judge Michael Luttig, who testified recently at one of the January 6 hearings, warned in an op-ed in April that the Court will be opening a can of worms if it adopts the theory. “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments),” he wrote, starkly. If Biden wins Georgia again in 2024 and the Republican majority in the state legislature decides that there were unspecified “irregularities” with the vote requiring them to send an alternate slate of pro-Trump electors, under the ISL theory that judgment would be unreviewable by the state supreme court. Maybe federal courts could review it. Maybe.


Barrett’s vote for the ISL theory isn’t guaranteed, though. WaPo notes that in the same decision in which the Court ruled that federal courts can’t review partisan lawsuits over state gerrymandering, the majority agreed that “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.” In a 2015 decision written by Ruth Bader Ginsburg, the Court held that “Nothing in [the Elections Clause] instructs, nor has this court ever held, that a state legislature may prescribe regulations on the time, place and manner of holding federal elections in defiance of provisions of the state’s constitution.” So there is some role for state constitutions and state courts to keep state legislatures in check when making the rules for federal elections, it seems.

Unless and until SCOTUS overturns those rulings, of course.

There’s an obvious solution here. Because the Elections Clause empowers Congress to “alter” election laws made by state legislatures (which Gorsuch and Kavanaugh noted in the opinion I mentioned), presumably Congress could pass a federal law that “alters” those laws by explicitly making them reviewable by state courts. They could tuck that provision into the reform of the Electoral Count Act that they’ve been working on for months, heading off the Court’s romance with the ISL theory before it even begins. They have almost exactly six months left to pass something before the new House Republican majority makes it impossible. Tick tock.


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