Conservative warns Supreme Court against giving states power to change election rules after votes are cast

The U.S. Supreme Court will hear arguments starting next month testing the Independent State Legislature Theory, which would allow states to create new election rules after votes have already been cast.

Oral arguments will start in weeks in Moorev. Harper, whose proponents say state legislatures absolute power over congressional districting and presidential elections, but legal expert Paul Rosenzweig wrote for The Bulwark that conservatives should be highly skeptical of the fringe theory that's gaining popularity among Donald Trump's allies in the Republican Party.

"No one seems seriously to doubt that, if a state legislature wanted to, it could change the current law and decide before an election to choose its electors without holding a popular vote," Rosenzweig wrote. "But such a decision would require state legislators to explain to their electorates why they were being disenfranchised en masse, making this option politically, but not legally, impossible. The ISLT would allow state legislators to decide after holding a popular vote to choose the electors themselves."

Trump's allies tried to act out the scheme to overturn his 2020 election loss, but Rosenzweig argued the theory plainly violated the framers' intent when drawing up the Constitution, and he said each state that addressed the issue right after the Constitutional Convention limited state legislative authority over federal elections.

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"The Framers knew, because they drafted it, that the Constitution’s elections provisions were not intended to give state legislatures exclusive, plenary authority in determining the 'manner' of federal elections," he wrote. "Rather, as they demonstrated by their contemporaneous actions, the Framers readily understood that state legislative action would be subject to other state limits, such as a state constitution, the gubernatorial veto, and/or state judicial review."

If the court shaped in large part by Trump rules in favor of the Independent State Legislature Theory, it would represent one of the most radical attacks on federal authority in the nation's history, Rosenzweig wrote.

"At no time since the ratification of the Constitution 234 years ago has any court or legislature adopted the ISLT as law," he wrote. "For the Court to do so now would be as transformative and as radical as [the] transformation of soccer into rugby. The difference, of course, is that ... merely gave us a new sport. Were the Court to accept the ISLT, it would give us a new country — one that would be recognizably less democratic and more partisan."

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