W.Va. elected officials helped popularize a radical legal theory now at the Supreme Court

Editor’s note: This story was originally published by Mountain State Spotlight. Get stories like this delivered to your email inbox once a week; sign up for the free newsletter at https://mountainstatespotlight.org/newsletter.

By Ian Karbal, Mountain State Spotlight

Before a chilly crowd at a March for Trump rally outside the West Virginia State Capitol in December 2020, Secretary of State Mac Warner said that there wasn’t enough time to assess Donald Trump’s allegations of fraud in the 2020 election. But, he said, doing so could be bypassed all together and still see Trump declared the victor.

“There were votes that were counted outside the legality of the Constitution,” Warner told the crowd at the rally. “We’re saying simply that the election itself was so fouled up that it needs to go to Congress” – where the U.S. House of Representatives could have declared Trump the winner in spite of his electoral loss.

“We’re at a very exciting time,” Warner said at the rally, organized by the same group that held the rally on Jan. 6, 2021, before the riot at the U.S. Capitol. “This is like out of a Tom Clancy novel or something.”

Warner echoed an argument before the U.S. Supreme Court that electors in swing states won by Democrat Joe Biden should be disqualified. The day before Warner’s speech, West Virginia Attorney General Patrick Morrisey signed onto a brief in support of that case.

Two of West Virginia’s three U.S. House members, Carol Miller and Alex Mooney, signed onto another brief urging the same thing. They would eventually vote against certifying some of Biden’s electoral votes from swing states.

All of those arguments relied on a radical and historically unsupported interpretation of the U.S. Constitution that says state legislatures alone – not state courts, or election officials, or even state constitutions – are allowed to set rules for federal elections within state borders. 

In a few years, though, that interpretation of the Constitution, called the “independent state legislature” theory, has gone from the fringes of political thought to the Supreme Court, which is scheduled to hear a case regarding it next month.

“This is not a longstanding argument about the founders’ intent,” said Erik Herron, a West Virginia University professor who studies elections and electoral systems. “And many, in fact, argue that it runs quite counter to the founders’ intent.”

Although West Virginia’s leaders have signaled that they want the Supreme Court to endorse the theory, many legal scholars have said that could be an actual threat to democracy. An election law expert said a “muscular” reading of the theory could “provide a fig leaf for state legislators to try to reverse presidential election results.” A longtime conservative judge said the Supreme Court must reject the theory to stop “Trump and the Republicans … from stealing the 2024 elections.” A professor who supports parts of the theory cautioned against a legislature that might use the theory “to simply disregard the results of a popular presidential election and appoint a slate of electors reflecting its own partisan preferences.”

What is the independent state legislature theory?

For a century, American courts and constitutional scholars have basically agreed on how states can oversee federal elections. But now the U.S. Supreme Court is scheduled to hear a case from North Carolina, called Moore v. Harper, that would test that.

Most constitutional scholars agree that when the Constitution’s authors said elections should be governed by each state’s “Legislature,” they meant a state’s entire government. Each state’s legislature is inherently bound by the state’s constitution, court rulings and other checks and balances.

But legal experts say, if the independent state legislature theory is endorsed by the court, legislators could pass voter suppression laws, gerrymander voting districts and engage in other undemocratic practices with almost no checks and balances. Congress would still have the power to govern how they set rules, but has historically been hesitant to do so.

“The theory, if it were adopted, would remove the checks and balances on a state legislature that constrains conduct like changing vote counting procedures in a manner that would empower partisan officials, or conducting sham audits of elections that could alter or manipulate the outcome of an election,” said Eliza Sweren-Becker, a voting rights and elections lawyer at the Brennan Center for Justice, a non-partisan organization at New York University’s School of Law.

What West Virginia officials said

On Dec. 8, 2020, the brief signed by Morrisey and other Republican attorneys general was delivered to the U.S. Supreme Court, supporting arguments to overturn the election by Texas Attorney General Ken Paxton. The brief echoed the independent state legislature theory: “it is no accident that the Constitution allocates [federal election] authority to state Legislatures, rather than executive officers such as Secretaries of State, or judicial officers such as state Supreme Courts.”

The next night, Warner spoke to the March for Trump rally in Charleston about votes cast “outside the legality of the Constitution.”

Asked for clarification, Warner spokesperson Mike Queen said, “Secretary Warner is recognized as one of the nation’s leading advocates for states’ rights guaranteed by the U.S. Constitution. The Elections Clause expressly places the authority to determine the times, places and manner of holding elections with state legislatures.”

Adav Noti, the senior vice president and legal director of the nonpartisan Campaign Legal Center, was surprised to hear a secretary of state supporting the independent legislative theory, as it could be used to undermine their own office’s ability to administer elections.

“That’s one of the ironies,” Noti said  “Secretaries of state would really, really have their hands tied [under the independent state legislature theory]. That would be a huge administrative problem, because the laws for elections don’t spell everything out.”

(Ironically, Morrisey’s and Warner’s arguments about the role of state legislatures in regulating elections goes against their advice in the 2020 primary. During the COVID-19 state of emergency, Morrisey said that Warner could “issue broad, flexible rules without following the ordinary rulemaking procedures” in the primary, and Warner then said any voter could vote by mail.)

As Morrisey did, Miller and Mooney also signed onto a brief in support of Trump allies’ efforts to overturn the election by urging the U.S. Supreme Court to endorse the independent legislature theory. Their brief, signed with 124 other Republican U.S. House members, argued that state legislatures have “plenary authority” over election rules, and that interpretations or challenges from state courts, election administrators or gubernatorial vetoes were invalid.

Both went on to challenge the electoral votes of individual swing states on Jan. 6, 2021. Hours after a mob of Trump supporters stormed the U.S. Capitol hoping to stop certification of Biden’s electoral victory, Mooney objected to certifying Pennsylvania’s and Nevada’s electoral votes. He said he voted against Pennsylvania’s electors because the “laws and state legislature were subverted or ignored.”

Mooney also introduced a resolution in the House the day after Biden’s victory was formalized by Congress, urging neither candidate to declare victory and citing “rule changes outside the normal legislative process.”

Miller voted against certifying Pennsylvania and Arizona’s electoral votes after the Jan. 6 riot. She wrote earlier that day that “Secretaries of State, Election Boards, Judges, and other state and local officials should not be, in place of State Legislative bodies, making last minute changes on how their states perform the duty of providing, counting, and certifying ballots.”

Mooney, Miller, Morrisey and Warner haven’t commented specifically on Moore v. Harper or the independent state legislature theory, though Warner’s office provided the statement that said the Constitution placed the authority to regulate elections with state legislatures. 

Even proponents of the theory don’t agree on how far it should be taken — for example, whether a secretary of state should be allowed to interpret existing law like Warner did – and groups on all sides have filed briefs with the court arguing how the court should rule. 

A brief filed in August by lawyers for North Carolina Republicans took an extreme position, arguing that even if a state’s legislature delegated power to regular elections, that would be unconstitutional. This week, a bipartisan group of state Supreme Court chief justices submitted a brief arguing that the U.S. Supreme Court should reject the independent state legislature theory. 

The country is “in a really dangerous period of polarization, and allowing already polarized state legislatures unfettered powers to set the rules for elections is going to increase that polarization spiral,” said Noti. “ And it’s going to greatly increase the legal and democratic divide among American citizens, which is already causing tremendous problems for our society and our democracy.”

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