Imagine this scenario. Donald Trump or Florida Gov. Ron DeSantis is the Republican nominee for president in 2024. Once again the results are razor thin in swing states, including Wisconsin. Joe Biden or a new Democratic nominee once again wins our state by a narrow margin, say 25,000 votes.
But now the Republican-controlled Legislature decides to award our electoral votes to the Republican in clear disregard for the popular vote. Gov. Tony Evers and Attorney General Josh Kaul, both having been reelected in 2022, loudly object. Kaul rushes to the Wisconsin Supreme Court, where liberals now have a 4-3 majority after a liberal was elected to the open seat in April 2023.
The court sides with Kaul and Evers and it seems like popular democracy has been restored. But the Legislature just ignores the court. And there it ends.
Unfortunately, this is entirely possible. That’s all due to a little known legal theory called the “independent state legislatures” doctrine. The idea here is that the U.S. Constitution says that the “times, places and manner of holding elections” for Congress “shall be prescribed in each state by the legislature thereof.” According to an article in The Economist, “Advocates of the independent state legislature doctrine say this clause assigns sole responsibility for redistricting to the state legislature; other branches of the state government, including the courts, must watch from the sidelines.”
In previous test cases, there appeared to be four votes for the doctrine, but Amy Coney Barrett has not been tested on the issue. Since she subscribes to the originalist school, it is thought that she would supply the fifth vote once she has the opportunity, just as she did in overturning Roe v. Wade.
And that chance may come next year. Last week the court said that it would hear Moore v. Harper next term, with a decision probably a year from now. If the justices rule in favor of the independent state legislatures doctrine in its purest form, it would mean that legislatures could ignore their own state constitutions, their own Supreme Courts and their own governors when it comes to federal elections. They could simply decide, without evidence, that 25,000 Democratic votes were illegally cast and hand the state’s electoral votes to the candidate they want. This is just what some Republicans did in 2020 with the fake electors who convened and voted for Trump, then conspired with Sen. Ron Johnson to deliver those votes to Vice President Mike Pence. Only now it would be legal.
In an April column on CNN’s website, former federal judge J. Michael Luttig, who was appointed by President George H.W. Bush and who testified recently before the House Select Committee investigating the Jan. 6 insurrection, wrote, “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) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.”
I asked a Wisconsin elections lawyer who is deeply familiar with the doctrine how concerned we should be about this. He told me that, “This is an extreme threat…we face the likelihood that a GOP-dominated legislature would select the winner of Wisconsin’s presidential election in 2024. Note that this would be the case regardless of the outcome of the gubernatorial election this fall; the success of the ISL theory would render who holds the governor’s office irrelevant.”
At this point I find myself in the odd position of holding out hope for Assembly Speaker Robin Vos. Despite his responsibility for the ongoing Michael Gableman “sham investigation” into the 2020 election, Vos has consistently expressed opposition to the elimination of the Wisconsin Elections Commission and moving its responsibilities to the Legislature. Of course, it’s not clear if Vos would hold up against pressure from his caucus to essentially award the presidency to a Republican who lost the popular vote. But we can hope.
Here’s the supreme irony. Republicans, led by Trump, have been falsely claiming that the last election was stolen, but in 2024 they may steal it in reality for themselves.
“As it stands today,” Luttig wrote in his CNN piece, “Trump, or his anointed successor, and the Republicans are poised, in their word, to ‘steal’ from Democrats the presidential election in 2024 that they falsely claim the Democrats stole from them in 2020. But there is a difference between the falsely claimed ‘stolen’ election of 2020 and what would be the stolen election of 2024. Unlike the Democrats’ theft claimed by Republicans, the Republicans’ theft would be in open defiance of the popular vote and thus the will of the American people: poetic, though tragic, irony for America’s democracy.”
Dave Cieslewicz is a Madison- and Upper Peninsula-based writer who served as mayor of Madison from 2003 to 2011. You can read more of his work at Yellow Stripes & Dead Armadillos. He’s the author of Light Blue: How center-left moderates can build an enduring Democratic majority.