U.S. Presidential Elections and the "Independent State Legislatures Doctrine"

Article II, Section 1

1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
   
   
2. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
   
   The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
   
   
3. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
   
   
4. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
   
   
5. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
   
   
6. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
   
   
7. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
   

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Subsection/Clause 2 is the focus of the "Independent State Legislatures Doctrine." Sixteen "shall" directives and one (curious) "may." Notably absent is any constitutional language authorizing a state to set (or rescind) an election's procedures post hoc—once an election result is known and Electors' tallies have been submitted to Congress. Are we to believe the Framers intended to provide state legislatures carte blanche? "Original Intent / Textualism" is no help here.

This once-obscure theory — known as the Independent State Legislatures doctrine — had been a stealth effort in right-wing legal circles. But recent election-related litigation in state supreme courts and the federal courts, much of it related to the "Big Lie," has accelerated its prominence and highlighted its dangers. 

Here's what the Independent State Legislature doctrine argues: The U.S. Constitution gives state legislatures the sole authority to set all election rules — including the assigning of Electoral College votes — independently, and immune from judicial review. Taken to its natural extreme, it holds that election laws set by state legislatures supersede any rights guaranteed in state constitutions or even initiatives passed by voters. It effectively concludes that there can be no possible checks and balances on state legislatures' authority when it comes to election law.

Yesh, but "immune from judicial review" implies that even SCOTUS has no standing in this regard.** OK: ARTICLE III, Section 2: In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

 

The 2020 election is lawfully concluded. All 50 states had certified prior to January 6th, in the wake of dozens of fruitless challenges in "battleground" states.

 

States' legislative authority with respect to future election processes (in advance of them) is a separate issue. But, you don't get a Mulligan once your state has Certified but you are miffed at the outcome. You Snooze, You Lose.

** The right of citizens "to vote" (exact words) is explicitly set forth in the 14th, 16th 19th, 24th, and 26th Amendments. I'm not buyin' that SCOTUS could not act to strike down any states' legislative enactments that abrogated it. Seriously? Uhhh... ARTICLE III, Section 2, anyone?

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…”

 

"In such Manner" that otherwise comports with the "supreme Law of the Land."

ARTICLE VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. 

'eh?

 

NONETHELESS

 

SCOTUS now has a 6-3 "conservative" majority, four of whom—Justices Alito, Gorsuch, Kavanaugh, and Thomas—have already expressed affinity for the "Independent Legislatures" concept. So, we could perhaps see an eventual 5-4 vote in its favor should they opt to take it up. 

 

"The Rule of Five."

 

UPDATE: THE "EASTMAN MEMO"

 

After the November 3rd election, "White House lawyer" John Eastman circulated a 6-pg "confidential memo" (pdf) articulating his proposed process for overturning the apparent Biden win and re-installing Donald Trump for a second term summarily. It begins and ends thus:

PRIVILEGED AND CONFIDENTIAL
January 6 scenario

Article II, § 1, cl. 2 of the U.S. Constitution assigns to the legislatures of the states the plenary power to determine the manner for choosing presidential electors. Modernly, that is done via statutes that establish the procedures pursuant to which an election must be conducted.

…The fact is that the Constitution assigns this power [to decide a presidential election] to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind. [And, never mind the otherwise “plenary power“ of the states.]

[-snip-]

… I have outlined the likely results of each of the above scenarios, but I should also point out that we are facing a constitutional crisis much bigger than the winner of this particular election. If the illegality and fraud that demonstrably occurred here is allowed to stand—and the Supreme Court has signaled unmistakably that it will not do anything about it—then the sovereign people no longer control the direction of their government, and we will have ceased to be a self-governing people. The stakes could not be higher.

It's worth yet again noting that “illegality and fraud,“ while asserted ad nauseum to have been "demonstrable," were never confirmed, notwithstanding protracted, withering scrutiny—inclusive of more than 60 failed court challenges.

"The Supreme Court has signaled unmistakably that it will not do anything about it." But, but, but... oh, never mind—"ultimate arbiter," anyone? Was not the VP's action "arbitration?" C'mon. Pence was the "ultimate arbiter" until he was not?

 

SUMMARY RECAP

 

 

This is what passes for constitutional analytic sophistication at the Claremont Institute these days.

 

GAME, SET, AND MATCH,

JEREMY B. ROSEN, ESQ (FEDERALIST SOCIETY):

[John Eastman] “prepared a six-page memo for Pence, arguing that Pence had broad powers to stop the Electoral College–vote counting in the Senate. Eastman asserted that the vice president had the authority under the Twelfth Amendment to determine on his own which Electoral College votes were valid and to count only those, thus giving the election to Trump. This theory does not hold up to basic scrutiny. Applying originalism to interpret the Twelfth Amendment, Derek Muller, a professor at the University of Iowa and a prominent conservative election lawyer, explains that the vice president lacks any authority other than to announce the votes that have already been counted by Congress. Indeed, in 2000, Eastman himself argued that Vice President Al Gore did not have power over the counting, because only both houses of Congress possess such authority. If Gore lacked the power to challenge the counting of Electoral College votes he disputed to deprive then-Governor Bush of the presidency, so too did Pence with regard to Trump.”

UPDATE:JOHN EASTMAN HEADS TO THE WAFFLE HOUSE

"John Eastman now rejects ‘coup memo’ he wrote for Trump: ‘Anybody who thinks that that’s a viable strategy is crazy’."

Poignant. Where do they find these people? "Anybody who thinks that's a viable strategy is crazy."

Like, uhhh..., say, these dim bulbs?

I call the Eastman 'coup memo' "accessory to incitement of insurrection."

OCT 13TH ERRATA

 

Nope.

"Why isn't the January 6th Unselect Committee of partisan hacks studying the massive Presidential Election Fraud, which took place on November 3rd and was the reason that hundreds of thousands of people went to Washington to protest on January 6th?" Trump asked, even though his claims of fraud were long ago debunked.

"Look at the numbers now being reported on the fraud, which we now call the 'Really Big Lie.' You cannot study January 6th without studying the reason it happened, November 3rd," Trump argued, attempting to claim that those debunking his lies are the ones actually lying.

"But the Democrats don't want to do that because they know what took place on Election Day in the Swing States, and beyond. If we had an honest media this Election would have been overturned many months ago, but our media is almost as corrupt as our political system!" Trump argued, though even Fox News has accurately reported Trump lost the election.

FOLLOW-UP

 

 

OCT 27TH UPDATE

 

Oopsie. 

WAPO, OCT 30TH

As Vice President Mike Pence hid from a marauding mob during the Jan. 6 invasion of the Capitol, an attorney for President Donald Trump emailed a top Pence aide to say that Pence had caused the violence by refusing to block certification of Trump’s election loss.

The attorney, John C. Eastman, also continued to press for Pence to act even after Trump’s supporters had trampled through the Capitol — an attack the Pence aide, Greg Jacob, had described as a “siege” in their email exchange.

“The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so that the American people can see for themselves what happened,” Eastman wrote to Jacob, referring to Trump’s claims of voter fraud…

See also The Guardian.

‘A roadmap for a coup’: inside Trump’s plot to steal the presidency

UPDATE

 

Wikipedia to John Eastman: "We are out of fucks to give."

In a world of inequality, we are well accustomed to rich, powerful, connected people getting preferential treatment, whether a good table at a restaurant, admission to a selective college for their offspring or a torn-up speeding ticket. Despite its countercultural tendencies, the digital world has wound up in a quite similar place. On large platforms like YouTube, Twitter and Facebook, the most important, newsworthy users are given VIP treatment. Their voices are amplified; their misdeeds are excused; they are, up to a point (see: Trump), freed from the automated policing that the rest of us have to endure. The notable exception is Wikipedia. There, VIPs have been shouting “Do you have any idea who you are dealing with?!” for years, only to be told either, not really, or, don’t care, and then instructed, as Eastman was, to take their objections to a Talk page where the community can weigh in…

UPDATE

 

35 pdf pages of Eastman Ass-Whup.

 

SUBSIDIARY PRESIDENTIAL ELECTION PROCESS CONSIDERATIONS

AMENDMENT XII

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President-The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

See also the Electoral Count Act of 1887, 3.USC.15. Neither of which—notwithstanding the protracted, acrimonious pushback—get you to constitutional justification for nullifying the 2020 vote count certification on January 6th.

See also "The Electoral Count Mess: The Electoral Count Act of 1887 is Unconstitutional" (pdf).

Abstract: In this essay, and in light of the controversy that arose in the wake of the 2020 presidential election, we explain the constitutional process for counting electoral votes. In short, every four years, the Twelfth Amendment requires the President of the Senate (usually the Vice President of the United States) to open certificates provided by state presidential electors and count the votes contained therein. The Constitution allows no role for Congress in this process, and thus, the provisions of the Electoral Count Act purporting to grant Congress the power, by concurrent resolution, to reject a state’s electoral votes, is unconstitutional. Further, the objections raised to two states’ electoral votes on January 6, 2021, were not proper within the terms of the Act, and therefore, even if Congress has the power specified in the Act, congressional action rejecting states’ electoral votes would have been contrary to law. While state executive or state judicially-ordered departures from the requirements of state election laws in presidential elections might violate the federal Constitution’s requirement that electors be chosen as specified by state legislatures, determining whether this has taken place is much more complicated than simply examining the language of state election statutes. We suggest that making this determination requires a careful examination of state interpretation traditions that we decline to undertake in this brief essay on the constitutional process for counting electoral votes.

Again, you don't get a Mulligan when you don't like the presidential election outcome but can't prove outcome-changing fraud (particularly in light of the myriad administrative, legislative, and judicial reviews comprising the 2020 election challenges).

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IMPORTANT UPDATE, DEC 2021

 

Read all of it carefully.

 

JANUARY 2022 UPDATE

 

From the conservative Bulwark.

Trump's Electoral Forgery/Fraud: The smoking guns are all around us

 

Connecting the myriad incriminating dots.

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