The Honorable John E. Jones III has long believed in a commonsense approach to the Constitution. As the U.S. District Court judge for the Middle District of Pennsylvania, he presided over the landmark Kitzmiller v. Dover Area School District case, ruling that mandating teaching of “intelligent design” in public school science classes was unconstitutional. In 2014, he struck down Pennsylvania’s 1996 ban on same-sex marriage. Not surprisingly, now that he’s stepped down from the bench to lead Dickinson College, he’s still fighting for his ideals. Among them: Election integrity. Also: Civics education. Definitely not: Independent state legislature theory.
As a member of Keep Our Republic (KOR), a bipartisan group of civic leaders working to preserve our “republic of laws” by educating the rest of us on the U.S. system of checks and balances — and democratic elections — Jones is not alone in his relief. For the past several months, KOR has battled the John Eastman-espoused, borne-of-2020 election denial independent state legislature doctrine, a theory that, I swear, he’s about to explain.
Here, the esteemed former jurist and current educator explains what SCOTUS’ decision means for us — and what else we need to do to preserve our democracy.
Let’s start at the start. What is independent state legislature doctrine?
It is, in a sense, an interpretation of the Elections Clause in the U.S. Constitution that is, in my view, and now in the view of the U.S. Supreme Court, erroneous. It reared its head in 2020, based, in particular, on John Eastman’s advocacy for it.
If you recall after the election, among other things, Rudy Giuliani was able to get an audience before a panel of Pennsylvania legislators. Giuliani tried, in essence, to sell the theory to them that the state legislature could overturn the election results and select their own electors. He wasn’t successful, obviously. But Trump lawyers and Eastman continued to push this idea.
Remember what happened on January 6. Trump, regardless of where the criminal charges fall, was trying to get Pence to not certify the election. Had Trump succeeded, the election would have been sent back to state legislatures. According to Eastman’s bogus theory, those legislatures would have been able to act as they saw fit.
But the whole 2020 fake electors scheme was not what Moore v. Harper was about, right?
Correct. Moore v. Harper is a North Carolina case that doesn’t involve that issue. It involves redistricting.
Aside: In 2021 in red-turning-purple North Carolina, Republican legislators drew up new voting districts so that they’d have the 99.9999 percent political advantage. Voters mounted a legal challenge to this extreme redistricting (aka gerrymandering). That challenge reached the North Carolina Supreme Court, who deemed the gerrymandered map unconstitutional. In doing so, SCONC affirmed that a state’s constitution and courts have the ultimate say in election law, not solely its legislature. NC Republicans then took their case to the U.S. Supreme Court — and, on Tuesday, lost. Again.
So. What did SCOTUS lay down on Tuesday?
The U.S. Supreme Court offered an interpretation of the federal Elections Clause as it relates to national elections. In North Carolina, both the legislature and the courts are the creation of the constitution. This is the heart of the matter. You cannot untether a state’s legislature from its constitution.
This ruling’s impact is going to be very substantial. It will put to rest what I think is a totally erroneous interpretation of the Elections Clause. The Chief Justice’s opinion is spot-on.
Given the supermajority on the Supreme Court, this ruling takes the independent state legislature theory off the table for 2024. The majority opinion means, then, that the John Eastman theory — in which there are no circumstances which the state court can in any way affect the legislature’s ruling — is completely discarded.
SCOTUS confirmed that a state legislature cannot overrule its state constitution. Is there anything else the ruling impacts?
What they didn’t decide is how far courts could get into the legislature’s work. Roberts’ opinion avoided saying: Here’s a test. It didn’t say: This is the kind of activity that would cause us to say that a state supreme court could weigh into the actions of a legislature.
Justice Kavanaugh, in his concurring opinion, proffers a test that can be used. But it’s dicta, a suggestion, as in, This is probably the way we should apply this.
Three Justices dissented. But their opinion was not about independent state doctrine, per se. It was more of a technicality over how this case came to SCOTUS …?
What Justice Thomas said, is this case has been decided. In effect, he said, alright, so the North Carolina Supreme Court decided in a point in time that the maps were unconstitutionally drawn, and then the losing parties asked for a rehearing when the composition of the Supreme Court changed, and when it changed, they reheard it and decided the prior ruling was erroneous.[The new NC Supreme Court], in effect, endorsed the independent state legislature doctrine by saying the court should never have decided the case in the first place. Notably, they didn’t interrupt the decision. They let the maps stand as they were.
Thomas said there was no controversy here. Roberts’ rejoinder — the majority opinion — was, if we don’t decide this now, given the thrust of the second decision by the North Carolina Supreme Court, this is going to happen again. If we let that logic stand, state legislatures will have the unfettered ability to do this again.
What would have happened if the ruling had gone the other way?
Let’s assume that the case had turned the other way, and it was 6-3 endorsing the independent state legislature doctrine. That would have become the preeminent tool in the toolbox for those wishing to overturn the results of a 2024 election that they didn’t favor. Literally, in my view, it would have been anarchy.
Anarchy is a big deal. So why are other SCOTUS cases getting all the attention?
Unfortunately, sometimes I think the country needs a good civics lesson. These cases are hard to explain. And because they’re hard to explain, commentators have been challenged to try to articulate the effect of the various rulings that would have been possible.
When you say independent state legislature doctrine, people glaze over. You’ve lost me at the jump. The impact of this, had the case gone the other way, would have been far more profound than the two cases that are going to be decided later this week: Affirmative action and student debt relief.
People know about Affirmative Action, and people have student debt. It’s personal. The Dobbs case generated a very visceral reaction because that issue had been around for a generation or two and is known to everyone.[Independent state legislature doctrine] presented an existential threat to democracy and the integrity of elections — which is what keeps our republic. There are so many other areas [at risk], but at least this takes the independent state legislature doctrine off the table.
What else is at risk, then?
In Keep Our Republic, we talk about in Pennsylvania, for example, after the election — and this continued in the midterms — there’s this popular belief that hand counts of ballots are more reliable than voting machines. This belief goes back to the assertion that the Dominion voting machines were connected to Venezuela and hacked into and blah blah blah …
And yet, there is a wealth of information that says hand-counting ballots, given human frailties, is not reliable and has a greater level of error than machines do.
All across the Commonwealth of Pennsylvania, there were petitions to conduct recounts. And there were recounts where the winner was evident — these weren’t recounts where there was a ten-vote difference. It was the principle of the thing. They just wanted to prove a point, which cost counties thousands of dollars.
Maybe you heard about Luzerne County, where they had a really flawed general election last year. There was an investigation by the county’s D.A. The flawed election was not based on intrigue or any nefarious behavior: It was based on the fact that they couldn’t get people to work the polls.
Poll workers don’t feel safe. They feel maligned. They don’t want to be accused of something they haven’t done. So, they had workers who were brand-new, and they ran out of paper ballots because these workers weren’t yet competent in running an election.
This is the whirlwind that has been unleashed here. This is the kind of thing that can happen elsewhere, if we keep vilifying people running elections. This is gonna happen. This is what you get.
I see polling places where I vote, they’re manned by retired people. They’re dedicated; they try to get it right. And I think to myself: OK, where is fraud? Show me where the fraud is. Show me which of these nice retired people are participating in a scheme to throw this election.
The answer is obvious, of course. Yet people believe that at every level, there is some kind of horrible activity going on.
On the other hand, residents of my block in South Philly have different political beliefs. Some may have doubted the outcome of the 2020 election. But these same people work the polls, so they see how elections work for themselves.
It’s basically a civic responsibility that they’re undertaking. But you wonder: How long are people going to put themselves at risk or be accused of something that they didn’t do? God bless your neighbors for doing it, but why would you?
Let’s face it. There’s a natural tendency of our fellow citizens to look with great cynicism on institutions. Americans are sort of hardwired that way. And that can be good: You don’t accept things at face value. Or, in this case, it’s really bad. Written large, it means we’ve lost faith in institutions that heretofore have given us no reason to.
But Moore v. Harper went the right way! And you and yours are fighting to make elections great again!
That Keep Our Republic is a group of former federal judges, former U.S. senators, former members of Congress, former members of the Department of Justice — all thought leaders — this is heartening to me. We have people like Tim Wirth, former U.S. Senator — bright, interesting people. I’m an optimist; I don’t know why.
I’m also Pennsylvania-centric. I don’t think there’s any issue now as big as independent state legislature doctrine. But there are a bunch of lesser issues that, combined, could have an impact. We’re seeking to educate thought leaders, county commissioners. We’re game planning things like: What if an election is interrupted? What if something like a demonstration impedes voting?
We’re going to proactively try to educate the public about the legitimacy of elections. Make sure what took hold in 2020 doesn’t take hold in 2024.
MORE LEGAL COVERAGE FROM THE CITIZENSource: Joe Ravi, CC BY-SA 3.0, via Wikimedia Commons