Twice-failed presidential candidate Hillary Clinton should perhaps take a civics class, stop worrying, and learn to love the “independent state legislature theory.”
State legislatures, by whatever name one wants to assign, have always had the authority to seize control over naming presidential electors but haven’t, and won’t, because to do so would be political suicide.
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In a fundraising video for the left-wing group Indivisible “Crush the Coup” project, Clinton said this was “keeping me up at night.” Establishing herself as the first official 2024 election denier, Clinton warned, “Right-wing extremists already have a plan to literally steal the next presidential election.”
She goes on to say that “the right-wing-controlled Supreme Court may be poised to rule on giving state legislatures, yes, you heard me that correctly, state legislatures the power to overturn presidential elections.”
The Supreme Court case is Moore v. Harper, regarding a redistricting dispute in North Carolina. The question before justices is whether the Constitution gives ultimate authority to state legislatures to make decisions on congressional maps or if governors or state courts can be involved. The Constitution states, “Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”
The concern with Clinton, Indivisible, and others on the Left is this will morph into state legislatures appointing presidential electors at will, as the Constitution says, regarding the Electoral College: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”
Concern over this is just more election hysteria from the Left, as further explained in my book, The Myth of Voter Suppression: The Left’s Assault on Clean Elections.
Seven states in the first contested presidential election of 1796 had popular voting. State legislative races were viewed as proxy votes for a presidential candidate. This changed under Jacksonian democracy, when state legislatures passed laws affirming the popular vote would decide which slate of electors would be sent to the Electoral College.
Even now, states make their own decisions on how to apportion electors, as 48 states have a winner-take-all system, while Maine and Nebraska award electors based on congressional districts. Also, 32 states and the District of Columbia have laws that impose fines and penalties for “faithless electors” who opt to vote for someone other than their state’s popular vote winner.
Hysteria about rogue state legislatures stems mostly from former President Donald Trump and his legal team in 2020 attempting to push GOP-controlled state legislatures to appoint a slate of pro-Trump electors in some states where Biden won a close victory. The state lawmakers politely said no. It would take an affirmative legislative vote (or, in most cases, a change in the law requiring a governor’s signature) ahead of an election to claw back the authority to appoint presidential electors and tell their own voters tough luck.
State lawmakers could do this. State lawmakers could do a lot of things they don’t do because they are elected and want to be reelected. While every legislative chamber has a few hotheads, party leaders want to keep the majority. One way to tick off voters is to seize their power to vote for president.
As I’ve noted before, the only state legislatures to pass laws to outright ignore the will of their state’s voters have been those voting to join the National Popular Vote Interstate Compact. The compact, with only blue states, will not take effect until enough states with 270 electoral votes join.
A consistent argument is Trump has a stranglehold on the Republican Party, as politicians are supposedly petrified the 45th president will endorse their primary opponent. But to the extent that is true, it’s again fear based on getting reelected. It’s a patently silly argument to claim politicians would sacrifice their political careers to help Trump.
We don’t even know how the high court will rule in Moore v. Harper, but despite warnings from Clinton and Indivisible, the fallout will likely be limited to redistricting debates and have little effect on presidential elections.
The “Independent State Legislature theory” might sound ominous in some circles, wonky and dull in most. And we should always be on the watch for ambitious politicians who could take an idea too far. But in some form, with certain constitutional parameters, the idea has been around since the Constitution itself.
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Fred Lucas is the manager of the Investigative Reporting Project at the Daily Signal and the author of the newly released The Myth of Voter Suppression: The Left’s Assault on Clean Elections.
