Opinion | How Panic on the Left Could Spark a Constitutional Crisis

Opinion | How Panic on the Left Could Spark a Constitutional Crisis



The issue in Moore v. Harper is whether the Constitution gives state legislatures the exclusive power to determine the “manner” of congressional elections, unconstrained by state constitutions. Under the independent state legislature theory advanced by North Carolina Republican legislators and their conservative allies, it does. Because state constitutions often provide greater protection of voting rights and stronger safeguards against gerrymandering and other insidious practices than the federal Constitution does, a decision by the court removing those protections would do real damage to democracy.

This case is about gerrymandered congressional districts, but the Constitution uses the same phrase about the “manner” of appointing electors in presidential elections. So, after the unprecedented attempts at legal manipulation of the presidential election of 2020, it’s natural to wonder what the theory might mean for 2024.

The answer: very bad things, but in different ways than many progressives fear. There are widely held and loudly shouted misconceptions about the likely legal consequences of the court’s decision in Moore for presidential elections. In a twist after the bizarre legal theories advanced in 2020, this time the legal conspiracy theories are coming from the left. And those unfounded fears could themselves carry catastrophic consequences in the next presidential election.

The most terrifying concern making the rounds is that an endorsement of the independent state legislature theory would, in the words of the Center for American Progress, empower “a rogue state legislature … to refuse to certify the accurate results of a presidential election” and “disregard the will of the people and instead appoint its own slate of electors.” The New York Times reported that “many Democrats believe … state legislatures could have a pathway to overrule the popular vote in presidential elections by refusing to certify the results and instead sending their own slates of electors.” Hillary Clinton recently warned in a fundraising pitch that “the right-wing Supreme Court may be poised to rule on giving state legislatures … the power to overturn presidential elections.”

Similar claims made their way into the pages of the New Yorker. And Mother Jones. And the Guardian. And the New Republic. And MSNBC.

These claims are unequivocally false. Even if the Supreme Court adopts the most extreme version of the independent state legislature theory, it would absolutely and without question violate the Constitution and federal law for a state legislature to toss out the results of the election and appoint its own “alternative” electors after Election Day.

There is a simple reason that a state legislature doesn’t have that power, no matter what the Supreme Court decides in Moore. Article II of the Constitution gives states — or just state legislatures, according to the independent state legislature theory — the power to determine the “manner” of appointing electors. But Article II also gives Congress, not states, the power to determine the “time” when states must choose electors. That’s why Election Day is set by federal law.

So it’s clear as day that, no matter how expansive its powers to set the “manner” of appointing electors under the independent state legislature theory, a state legislature’s attempt to appoint electors after Election Day would violate the Constitution. There are real threats to democracy, and those risks must be addressed immediately. This isn’t one of them.

(There is a nuance: Current law has an exception that permits states to appoint electors later if it “failed to make a choice” on Election Day. That exception would not apply in any of the sorts of situations we’re talking about. And the Electoral Count Reform Act, which appears headed toward passage in the lame duck session, would repeal that provision anyway.)

Overstating the legal consequences of the Supreme Court’s decision in Moore for presidential elections is a case study in the dangers of legal misinformation — and this time, unlike most others, the misinformation is coming from the left. The irony is that in 2024, liberals (and really anyone who believes in democracy and the rule of law) may come to regret their overheated rhetoric in 2022.

Although it’s obviously unconstitutional for a state legislature to appoint electors after Election Day in an attempt to reverse the results of a presidential election, it’s much less clear that a state legislature won’t try.

After all, former President Donald Trump’s allies argued that state legislatures had precisely that power. And on the morning of Jan. 6, Trump himself told a roaring crowd on the National Mall that Vice President Mike Pence and Congress should “send it back to the states.” Send it back to do what? To appoint electors after Election Day. The basic premise of the legal theory of Jan. 6 was to ask state legislatures to take an action that clearly violated the timing requirements set by the Constitution and federal law.

But the shoddiness of the legal theory didn’t prevent the attempt, including by Republican senators with elite legal training like Ted Cruz and Josh Hawley who really should — and let’s be honest, who really do — know better. And it didn’t stop a violent mob from storming the Capitol, led on by the lie that Pence had the power to reverse the results of the 2020 election on his own. Because it doesn’t just matter what the Constitution says, it matters what people think the Constitution says.

Sometime in December of 2024, a rogue state legislature somewhere in America might step off the precipice that none did in 2020 and actually send an unconstitutional “alternative” slate of electors. When that happens, the battle over what comes next won’t be fought only in courts. It will be fought in Congress on Jan. 6, 2025. And, I fear, it may be fought in the streets.

The battle for the minds of Americans who don’t know the details of arcane constitutional doctrine will be much harder to win if those who attempt to overturn the 2024 election can point to their political opponents’ uninformed hyperventilating from just two years prior and say: See, you already said we have this power. Those who believe in the rule of law have a grave responsibility to know what the law actually says. They should start living up to that responsibility.





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