While key states continued counting votes in the 2020 presidential election, Fox’s Brit Hume led the resurgence of the right-wing media narrative falsely claiming that election rules are governed solely by state legislatures. Hume’s false claim would leave decisions about the validity of expanded mail-in voting and other coronavirus-related ballot rules at the discretion of largely Republican-controlled legislatures in important battleground states.
The outcome of the presidential race has come down to a few states -- including Pennsylvania -- that have a large number of mail-in ballots to sort through before reporting definitive results. With President Donald Trump’s path to victory closing, he and his right-wing media allies look to steal the election by invalidating voting measures such as mail-in ballots that have enabled people to safely vote during the coronavirus pandemic.
Hume previewed one such argument during Fox’s coverage of the election results on November 3, during a discussion of a federal judge in Pennsylvania agreeing to hear arguments about the validity of some absentee ballots. Hume repeatedly argued that “the Constitution grants the authority to set election rules to state legislatures, not state courts, not state election boards, but state legislatures.” When Fox anchor Chris Wallace clarified that it was also up to state courts and commissions, Hume insisted that it was only the legislatures.
The public interest in ensuring that a State like Pennsylvania conducts its federal elections in accord with federal law is extremely strong. A state court’s commandeering of “the legislative scheme for appointing Presidential electors”—as happened here—“presents a federal constitutional question” of nationwide significance.
Hume’s argument and the Trump campaign’s case rely on an idea called “independent state legislature doctrine” discussed by then-Chief Justice William Rehnquist in the 2000 Supreme Court case Bush v. Gore. As ProPublica’s Ian MacDougall wrote about the concept, “In recent years, Bush v. Gore — or, more precisely, a side note in it, a line of reasoning that indisputably is without precedential effect — has begun to gain currency among conservative jurists and election lawyers.” MacDougall continued:
Rehnquist’s argument hinged on a narrow reading of the U.S. Constitution’s Presidential Electors Clause, which says, “Each State shall appoint, in such Manner as the Legislature thereof may direct,” the electors that vote for the president and vice president. In the chief justice’s view, the Constitution gave state legislatures exclusive authority to run presidential elections, and when, as in Florida in 2000, a state court (or governor) interfered in the election laws passed by the legislature, that runs afoul of the U.S. Constitution, which means that the federal Supreme Court can intervene to help preserve the state legislature’s power over how the state runs its presidential elections.
As The New York Times’ Adam Liptak explained in October, a Supreme Court decision that election results are solely at the discretion of state legislatures “would seem to benefit” Trump because “Republicans control the state legislatures in many if not all of the major battleground states, including Michigan, Wisconsin, Florida, Pennsylvania, Arizona, Georgia, Ohio, Iowa, Texas and North Carolina.”
In addition, as NBC News election law analyst Michael S. Kang wrote, Supreme Court Justices Brett Kavanaugh, Samuel Alito, Neil Gorsuch and Clarence Thomas have already endorsed the idea:
This novel constitutional theory conceivably could eliminate almost any check by state courts on state legislative decisions about the structure of presidential elections, whether it's voting deadlines, procedures or anything else. State legislatures might be able to violate even their own state constitutions when setting up presidential elections — and be exempt from state court review of what they decide.
To be clear, the Independent State Legislature Doctrine is neither established nor persuasive legal theory. It is, in fact, contrary to established precedent, which has held that the Constitution's delegation of authority to state legislatures means legislatures have the power to decide presidential election rules through the usual state lawmaking process, subject to state court review. The thin reed on which the Independent State Legislature Doctrine hangs is a one-off reference to a concurrence in Bush v. Gore itself — joined by only three justices — that suggests that the federal courts should restrict extreme state court interpretations of state law, but which actually says nothing about the illegitimacy of state court review of state presidential election law as a general matter.
The precedent Kang refers to is Arizona State Legislature v. Arizona Independent Redistricting Commission, decided by the court in 2015. Election law professor Rick Hasen laid out in Slate that year that late Justice Ruth Bader Ginsburg’s majority opinion was “an implicit dig at the Rehnquist concurrence” in Bush:
Ginsburg said the purpose of the Elections Clause was to make sure that Congress could override state legislatures if they were too self-interested; the purpose was not to empower legislatures over their own people. And she wrote that the initiative provides an important way for voters to deal with partisan gerrymandering and other problems where legislators pass rules to benefit themselves and their parties rather than the democratic process as a whole.
The idea that we would read legislature in the Constitution to prevent a state supreme court from even interpreting the meaning and scope of legislative election statutes was ludicrous in 2000, just as it is today. Mindless literalist interpretations in the service of conservative causes are nothing new, but they can be quite pernicious.
While at least four justices on the court seem willingly to recognize the independent state legislature doctrine, it would require them to overturn the precedent set by Arizona State Legislature. Hume’s assertion of the doctrine as fact is a bellwether of the right-wing media strategy likely to emerge in the coming days aiming to delegitimize election results and prevent the counting of all legal ballots.