Recently released documents from Dominion Voting Systems’ lawsuit against Fox News revealed that Rupert Murdoch allowed Fox hosts and guests to promote a legal theory used by the Trump campaign to attempt to overturn Biden’s 2020 victory, despite viewing it as “ridiculous.”
In the aftermath of the 2020 election, Donald Trump and his legal team pursued several avenues to have Joe Biden’s win thrown out. At least one strategy relied on the Independent State Legislature theory, which would allow state legislatures to solely determine presidential election rules and regulations, nullifying the state courts’ and governors’ ability to check legislative power. Trump and his allies used ISL in 2020 to argue that Pennsylvania’s Supreme Court did not have the authority to extend the deadline for mail-in ballots. Some right-wing figures used ISL in a more extreme claim that state legislatures could disregard the electors determined by the popular vote, and appoint their own slate of pro-Trump electors. ISL had long been relegated to the fringes of election law, but Trump’s legal team, with help from right-wing media, brought the theory into the spotlight.
ISL is generally considered nothing more than a political power grab. Legal expert Richard Pildes explained in his testimony before the House Committee on Adminstration that ISL “would be highly destabilizing to the federal election process” and that ending constraints on state legislatures in enacting electoral regulations “is a troubling prospect.”
Nevertheless, the U.S. Supreme Court agreed in 2022 to hear a case, Moore v. Harper, in which Republicans in the North Carolina General Assembly used the theory to claim that the North Carolina Supreme Court acted unconstitutionally in throwing out gerrymandered electoral maps. The U.S. Supreme Court may sidestep the case, however, as the North Carolina Supreme Court recently switched to a conservative majority and has taken the unprecedented step of agreeing to rehear the case.
Fox News used Moore as an opportunity to rehash the absurd notion that state legislatures are not subject to the normal procedures and limitations of the lawmaking process (i.e. checks from the state executive and judicial branches) when it comes to determining electoral regulations.
The latest documents released in Dominion’s lawsuit revealed that Rupert Murdoch admitted in an email that he knew ISL was “ridiculous," and agreed that state legislatures changing election results would constitute “overturning a free and fair election.”
Despite his knowledge that the legal theory was bogus, Murdoch allowed Fox News personalities to promote it on the network:
- Fox News analyst Brit Hume insisted several times during coverage of the 2020 presidential election that “the Constitution grants the authority to set election rules to state legislatures, not state courts, not state election boards, but state legislatures.”
- Ken Starr, one of Trump’s lawyers during his first impeachment trial, said on the November 6, 2020, edition of Varney & Co, “We have to go back to the state level and how this morass came to be in the first instance. The governor, the state governor, Wolf, and the state Supreme Court flagrantly violated the Constitution of the United States. The power to set these rules and regulations is vested in the legislatures. They just ignored that — ignoring the Constitution.”
- Fox News contributor Trey Gowdy asked on the November 5, 2020, edition of America’s Newsroom, “How does the Pennsylvania Supreme Court get to kind of overrule the legislature? I think it's a pretty clear legal analysis, but we won't know if the U.S. Supreme Court doesn't take it. And there is no obligation that they will.” He later added that the U.S. Supreme Court needed to “show a little more courage on this and tell the Pennsylvania Supreme Court, 'You know what? That's not your job to set election law. The Constitution says legislature — if you want to run for that, you can but you didn't. You ran for the Supreme Court.'”
- John Yoo, former deputy assistant attorney general and author of the controversial “torture memos,” advocated for ISL on the November 5, 2020, edition of Fox News at Night, claiming, “The Pennsylvania legislature under the Constitution has the sole right to set the rules about how to take an election and run an election.” Host Shannon Bream added, “Yeah, because when the Constitution says it’s up to state legislatures, that is the question, that’s the key that the Supreme Court will have to go to if they take this case.”
- John Pavia, one of former President George W. Bush’s lawyers in the 2000 Florida recount, claimed that even though all the states currently select electors through a popular vote, the state legislature has retained the right to override that vote. Pavia argued that state legislatures have “a plenary right, meaning each state legislature technically has the right to sort of pull the right to vote back into their state legislature and then decide which candidate they want to avoid award the votes to.”
- On the November 5, 2020, edition of his show, Fox News host Sean Hannity claimed, “What about the law, the Constitution? ‘The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.’ In other words, the state legislature — they decide election law and regulations, not local or city officials.”
- On the November 6, 2020, edition of Lou Dobbs Tonight, right-wing activist Tom Fitton asked if the state legislatures in Georgia, Pennsylvania, Michigan, and Arizona are “going to endorse what went on this week or are they going to appoint a clean slate of electors that supports President Trump?” He then encouraged viewers to press state legislators to consider appointing an alternate slate of electors, saying, “If you're concerned watching this, start talking to your state legislators and start asking where Congress is. Because Congress, in the end, is going to be the judge of the Electoral College votes.”
- Fox News host Will Cain claimed on the November 30, 2020, edition of Fox & Friends that “there should be enough evidence for state legislators to change their electors.”
- When asked by Fox News host Steve Doocy about Trump’s campaign considering urging states legislatures to submit their own slate of electors on the November 12, 2020, edition of Fox & Friends, former White House press secretary Kayleigh McEnany said that the argument was “constitutionally” accurate.
- Trump attorney Sidney Powell joined Fox Business’ Lou Dobbs Tonight on November 19, 2020, and argued that “the entire election, frankly, in all the swing states should be overturned and the legislatures should make sure that the electors are selected for Trump."
- Fox News personality Mark Levin tweeted that state legislatures “have the final say” and can directly overturn the popular vote:
Two years later, after the Supreme Court took up Moore v. Harper, Fox News is still promoting the theory:
- On the September 18, 2022, episode of Life, Liberty & Levin, host Mark Levin defended the alternative slate of electors sent by Pennsylvania state legislators in the 2020 election, arguing that the plot could have succeeded if the Republican-led General Assembly had voted to approve them. He then claimed that the left coined the term “independent legislature theory” because they “want their courts, run by Democrats, to make decisions about elections in the state.”
- Levin continued to promote ISL, claiming a few weeks later that Democrats “hate” the constitutional clause regarding state legislatures “because they do not want Republican legislatures and Republican states or purple states to be making the election laws.” He then argued that “Democrats want their courts … to overturn what the will of the people through the state legislature are doing, or Democrat governors, to overturn what state legislatures are doing or secretaries of state, and we saw this in the 2020 election.”
- On the December 7, 2022, edition of America’s Newsroom, Fox News host Bill Hemmer and correspondent David Spunt framed the theory as merely an issue of “states’ rights.” Co-host Dana Perino added, “Democrats are really worried that that’s going to be the end of democracy. But, then again, they think everything is going to be the end of democracy.”
- Later that day, Spunt claimed on America Reports that “what these state lawmakers are doing is to ask the state courts to be taken out of the mix so they have control over some of these election rules and regulations.” His reporting again failed to acknowledge that this “ask” is built on a fringe constitutional theory.
- Fox News host Paul Gigot downplayed the significance of the case, claiming on the December 10, 2022, edition of The Journal Editorial Report that concerns about the case from the political left are “hyperbolic.” Fox News contributor Dan Henninger then gave credence to the theory by claiming that Democrats don’t support ISL simply because they want to allow politicized state courts to “overrun state legislatures, especially in the South.” Henninger also predicted that the Supreme Court would rule that “the Constitution is clear on this: State legislators are responsible for elections and that the courts, as politicized as they are, are probably going to have to stay out.”