Ahead of then-President Donald Trump’s effort to steal the 2020 election, Rep. Mike Johnson (R-La.) played the role of providing a constitutional rationale for Republican House members to justify voting against certifying the electors from a handful of states.
Johnson argued in favor of an idea known as the independent state legislature theory, which holds that the Constitution grants the power to set election rules to state legislatures alone. And since changes to election rules during the COVID-19 pandemic to ensure ballot access were made by various other state government officials and bodies, including state and federal courts, Johnson argued that those rules violated the Constitution and, therefore, the submission of electors under those rules was also unconstitutional.
“If you are convinced the Constitution was violated in the process, I am not sure how the set of electors could then be deemed acceptable,” Johnson told The New York Times in 2022.
The problem for Johnson ― who is now speaker of the House ― is that this theory is bunk. It is such bunk that the Supreme Court has ruled against it, in a 6-3 opinion written by conservative Chief Justice John Roberts and joined by Trump-appointed conservative Justices Brett Kavanaugh and Amy Coney Barrett, Johnson’s longtime friend.
In the case, 2023’s Moore v. Harper, North Carolina Republicans challenged the state Supreme Court’s decision invalidating a congressional district map as an unconstitutional partisan gerrymander under the North Carolina Constitution. Republicans argued that the state courts were barred from questioning decisions by the state legislature regarding election law under the independent state legislature theory. But the Supreme Court rejected this argument.
“The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections,” Roberts wrote in his opinion.
Since the court ruled in Moore, Johnson has not commented on the rejection of his constitutional interpretation. Johnson’s office did not immediately respond to a request for comment.
The outcome in Moore ― and what Johnson thinks about it ― matters ahead of a possible 2024 rematch between Trump and President Joe Biden. While the election will likely not be conducted under pandemic conditions, every election features legal challenges over election rules where the independent state legislature theory could theoretically be raised.
With Trump still running on the lie that he rightfully won in 2020, he is bound to seek legal (or extralegal) recourse if he loses again. If Republicans hold the House, Johnson would likely oversee Jan. 6, 2025, as speaker.
Johnson’s supposed constitutional excuse for Republicans to reject the lawfully appointed electors of Arizona and Pennsylvania on Jan. 6 emerged in the midst of Trump’s effort to steal the 2020 election. Trump has since been indicted in federal and state courts on charges related to this effort.
While Johnson at first echoed the most ludicrous election conspiracies, including that Venezuela was involved in flipping votes through electronic voting machines, he ultimately switched to an argument at least notionally grounded in the Constitution. In a brief joined by 125 House Republicans that he wrote and filed in support of Texas’ December 2020 lawsuit that aimed to invalidate Pennsylvania’s election, Johnson relied entirely on the independent state legislature theory, as Texas did in its lawsuit, to make his case.
“This amicus brief defends the constitutional authority of state legislatures as the only bodies duly authorized to establish the manner by which presidential electors are appointed,” Johnson wrote.
He went on to write that state legislatures’ sole power to set “the rules for appointing electors” was “usurped at various times by governors, secretaries of state, election officials, state courts, federal courts, and private parties.”
These arguments were firmly rebutted by the Supreme Court in Moore, when it ruled that existing court precedent “rejected the contention that the Elections Clause vests state legislatures with exclusive and independent authority when setting the rules governing federal elections.”
There are some subtle, but relevant, legal differences between the Moore case and Johnson’s argument. The Moore case revolved around the Constitution’s Elections Clause, which governs regulation of elections. Johnson’s argument centered on the Constitution’s Electors Clause, and specifically the ability of local officials to alter state election laws that lead to the appointment of presidential electors. But these differences are largely cosmetic, and the substance of the Moore decision still applies to Johnson’s argument.
“The Supreme Court has always said that the Electors and Elections clause should be read [together] coextensively,” said Eliza Sweren-Becker, an elections lawyer with the Brennan Center for Justice, a nonprofit that advocates for voting rights.
As for the role of officials other than state courts, the Supreme Court’s decision in Moore explicitly cited precedents that upheld the role of governors and other official bodies, like independent redistricting commissions, to veto and determine election rules.
The court did so by rejecting the definition of “Legislature” in the Constitution offered by both North Carolina’s Republicans and Johnson in his brief in the Texas case. Both had defined the term as referring to the state legislature and the state legislature alone.
“The word ‘Legislature’ means the lawmaking power as construed by that state and the state’s constitution,” Sweren-Becker said.
In his decision in Moore, Roberts noted that the court had said as much in its 2015 precedent upholding Arizona’s independent redistricting commission, when it ruled that “although the Elections Clause expressly refers to the ‘Legislature,’ it does not preclude a State from vesting congressional redistricting authority in a body other than the elected group of officials who ordinarily exercise lawmaking power.”
And since state law had given officials the legal authority to execute those COVID-era election changes, they were under the control of each state’s constitution and state judicial review. During the 2020 election, state courts reviewed various election changes directed by governors, secretaries of state and election boards. Therefore, state courts, as provided by Moore, had the ultimate power to affirm or deny election law changes under their respective state constitutions.
The reality of Johnson’s constitutional justification for Republicans to reject the electors of Arizona and Pennsylvania becomes clearer with this retrospective: It was an excuse that permitted Republicans to follow Trump, even after the insurrection he inspired on Jan. 6.
“We had entered a period of time where people were advancing theories purely for political advantage,” said Tom Wolf, an elections lawyer with the Brennan Center.
This becomes apparent when looking at what Republicans did not reject: their own elections. Almost every state, including those run by Republicans, altered election rules in 2020 to accommodate voting during the COVID-19 pandemic. These steps ranged from legislative changes to executive orders from governors to rule changes by secretaries of state and state election boards.
In Johnson’s Louisiana, for example, the state’s primary elections were conducted under emergency rules set out by state Secretary of State Kyle Ardoin, a Republican, that eased access to absentee voting. Ardoin tried to limit absentee voting in the general election through another order, but he was rebuffed by a federal court, which kept his rules for the primary elections in place.
If the Constitution says ― as Johnson argues ― that elections conducted under rules not explicitly set by a state legislature are unconstitutional, then House members from states whose elections were conducted under such conditions should not have taken the oath of office. But they did.
“It’s a really contorted argument to try to say, ‘Hey, we have to throw out this election in this jurisdiction but not for other offices,’” said Aaron Scherb, director of legislative affairs for Common Cause, a nonprofit involved in the arguments before the Supreme Court in Moore.
Similarly, House Republicans only objected to the seating of a handful of states ― enough to steal the election for Trump ― and Senate Republicans only joined them in objecting to two.
If changes to election rules not done by state legislatures were such an affront to the Constitution, then why did Johnson not support objecting to every state that did so?
“It underscores how ludicrous it was for these folks to be trying to use the independent state legislature theory,” Sweren-Becker said. “And it reveals that it really was just a partisan political act and had no basis in actual law or principle.”