How the Supreme Court’s decision on election law could shut the door on future fake electors

The Supreme Court’s rejection of a controversial election theory may also have another huge political consequence for future presidential contests: It obliterated the dubious fake elector scheme that Donald Trump deployed in his failed attempt to seize a second term.

“It keeps the toothpaste in the tube, in the sense that the theories that would give state legislatures unvarnished power has been rejected,” said Ben Ginsberg, a prominent Republican elections attorney who loudly pushed back against Trump’s attempts in 2020 to overturn his loss. “State legislatures thinking that they can just, if they feel like it after an election, replace the popular will with a slate of electors is as gone as ‘there can’t be any review of redistricting plans.

Tuesday’s decision contained just glancing discussion of the electors clause in its majority opinion, which was joined by liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson and conservatives Brett Kavanaugh and Amy Coney Barrett. But in soundly rejecting the independent state legislature theory, the implications were clear: “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” Roberts wrote.

“The operative constitutional language in the two clauses is essentially identical,” said Michael Luttig, a former conservative federal appellate judge who advised Pence to reject those alternative slate of electors on Jan. 6. Eastman has repeatedly cited that ruling as evidence that state legislatures could simply ignore state court decisions they disliked regarding the appointment of electors, and he has reupped those arguments as he seeks to hold onto his California law license this month.that he pressed Justice Department leaders to issue on the cusp of Jan. 6, 2021, urging them to call their legislatures into session and consider appointing a new slate of electors.

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