Comment While there are reasons to be skeptical that Donald Trump will run for president in 2024, one thing could push him to do so: Growing legal troubles. As his possible rebellion-related crimes become clearer, he is reportedly becoming more serious about his candidacy, reasoning that as a candidate, he will be more difficult to prosecute. As it happens, this is unfolding even as the Supreme Court has announced plans to hear a case next term that could upend democracy. The court will likely uphold some form of the “independent state legislature” theory, which could expand the power of state legislatures in elections in radically undemocratic ways. This has generated much debate about how the theory might allow for supra-partisan interpretation. But it could also allow for more electoral coupwhich could combine with the looming threat of Trump in combustible ways. Even if Trump doesn’t run, the trends he unleashes — Republicans vying for control of the electoral machinery while effectively pledging to treat future elections as voidable — could be made more dangerous by the court’s decision. Follow Greg Sargent’s viewsFollow Add The case, Moore v. Harper, concerns whether the North Carolina state legislature is precluded from executing an extreme partisan criminal by the state courts’ interpretation of the state constitution. If the Supreme Court rules in favor of the legislature, the court could endorse some version of the theory, which holds that state legislatures have near-plenary control over election rules. This is supposed to be based on “original” readings of the Constitution. However, recent scholarship has debunked this, documenting that founding-era treaties gave state constitutions and courts a central role in overseeing states’ determination of electoral rules. Regardless, what if the court blesses the theory anyway? At least four justices have potentially signaled they are open to doing so. The most obvious is that state legislatures could come to grips with gerrymandering and possibly voting restrictions, though federal controls might limit the latter. As election expert Richard L. Hasen notes, the state legislature’s authority to set basic election rules will not be controlled by “the state constitution as interpreted by the state supreme court.” But supercharged electoral upset would also become a very vivid possibility. First, note that this will not make it easier for a state legislature to simply appoint new electors for a presidential candidate immediately after he loses the popular vote. Many federal restrictions on it would remain, such as the Election Day deadline for states to determine how to appoint electors, as well as other federal constitutional protections. But what if a legislator and a governor passed a law before election day by giving the state legislature the power to appoint electors regardless of the popular vote? Well, if the court enshrines the theory, it may not be subject to state judicial and state constitutional review. “Under theory, state constitutions could no longer act as a check on a legislature seeking to substitute the voters’ voice for theirs in selecting presidential electors,” Helen White, a consultant to the nonpartisan Protect Democracy group. That would leave federal law and federal constitutional checks as the only defense. “These checks are strong after the election,” White said. “But before the election, because that hasn’t been done in modern history, we would be in relatively uncharted and radically undemocratic territory.” This may seem far-fetched: No legislature has done this in 2020, and some efforts to do so have failed since then. But now Republicans such as Trump supporter Doug Mastriano, who is running for governor of Pennsylvania, have backed the idea that electors should be appointed in defiance of the popular vote. So all of this raises a question for Mastriano and candidates like him: Will you pursue a law that would give the state legislature the power to appoint electors on its own? We probably won’t like the answer – if Mastriano answers honestly. But the threat of electoral overthrow does not stop there. To put this in perspective, note that state legislatures have already advanced bills that appropriate more control over elections. A recent report by Protect Democracy and other groups documented dozens of examples, including efforts to subject results to bare-party controls (which could create pretexts for overturning elections) and measures that increase state legislatures’ control over the administration of elections. Under various versions of the theory, such measures would not be subject to review by state judicial or state constitutional review, White says: “State constitutional provisions could not be used to challenge any of these bills if enacted.” And what can this produce? “A nightmare scenario is that a Republican legislature, possibly with a Trumpist governor, passes a law that says the legislature itself is the final state check,” Matthew Seligman, an election law scholar, told me. “In theory, state courts and state constitutions would place no restraints on such a radically undemocratic partisan coup,” Seligman continued. If and when many Republicans win races this fall for control positions while pledging allegiance to Trump’s insurgent spirit, aren’t we likely to see more such radical state legislative efforts next year, before the presidential race? Even if Trump isn’t running, the Trumpist dogma that the GOP’s electoral defeats are inherently illegitimate is clearly beyond him. It is alarming to imagine a landscape in which the soil becomes more fertile for it to continue to metastasize.
