The Supreme Court decisively dismissed Rep. Mike Johnson’s (R-La.) attempt to justify voting against certifying the electors from several states in the 2020 election. The court’s decision, delivered in the case of Moore v. Harper (2023), dealt a significant blow to Johnson’s advocacy of the independent state legislature theory, a concept he used to assert that the Constitution grants the power to set election rules solely to state legislatures.
Johnson, who played a pivotal role in providing a constitutional rationale for Republicans to reject the lawfully appointed electors, argued that changes made to election rules during the COVID-19 pandemic by various state officials and bodies, including courts, violated the Constitution. He contended that electors appointed under these rules were unconstitutional.
Chief Justice John Roberts said Theory is Nonsense
“The problem for Johnson ― who is now speaker of the House ― is that this theory is bunk,” wrote Chief Justice John Roberts in the 6-3 opinion, joined by Trump-appointed Justices Brett Kavanaugh and Amy Coney Barrett. The ruling clarified that the Elections Clause does not vest exclusive authority in state legislatures to set federal election rules.
Johnson’s argument, centered on the independent state legislature theory, was rooted in the belief that only state legislatures had the constitutional authority to establish the manner in which presidential electors were appointed. However, the Supreme Court’s decision in Moore debunked this theory, emphasizing that other state officials, including governors and election boards, could determine election rules under state constitutions.
“The word ‘Legislature’ means the lawmaking power as construed by that state and the state’s constitution,” clarified Eliza Sweren-Becker, an elections lawyer with the Brennan Center for Justice.
Furthermore, the ruling highlighted the inconsistency in Johnson’s argument. While he contended that elections conducted under rules not explicitly set by state legislatures were unconstitutional, most states, including Republican-led ones, modified their election rules in 2020 due to the pandemic. Johnson’s selective objection raised questions about the validity of his claims.
“It underscores how ludicrous it was for these folks to be trying to use the independent state legislature theory,” remarked Aaron Scherb, director of legislative affairs for Common Cause, a nonprofit involved in the arguments before the Supreme Court in Moore. “And it reveals that it really was just a partisan political act and had no basis in actual law or principle.”
The Supreme Court’s ruling in Moore not only dismantled Johnson’s constitutional interpretation but also raised concerns about potential legal challenges in future elections. As the nation faces the possibility of a 2024 rematch between former President Donald Trump and President Joe Biden, the court’s decision serves as a critical precedent, emphasizing the importance of adhering to constitutional principles in the electoral process.
