Retired federal Judge J. Michael Luttig – considered a legal luminary in conservative circles – is joining with voting rights groups as a co-counsel in a Supreme Court case in order to persuade the justices to reject an obscure legal theory that has been promoted by supporters of former President Donald Trump.
Luttig played a key role in the run up to the January 6, 2021, US Capitol attack, advising then-Vice President Mike Pence’s legal team against claims from Trump allies like attorney John Eastman. Eastman had argued in a memo that Pence had the power to single-handedly block the certification of the election for Joe Biden.
Now, Luttig is working with voting rights groups in a new dispute that liberals fear could lead to the ability of rogue state legislators to act unchecked when it comes to rules concerning federal elections.
At issue is the so-called independent state legislature doctrine. Supporters of the theory say that state legislatures should be able to set rules in federal elections without being held in check by state constitutions either through interpretation by state courts or by the functioning of commissions created under state constitutional reforms.
“The independent state legislature doctrine was the centerpiece to Trump’s effort to overturn the 2020 election,” Luttig said in an interview with CNN on Wednesday.
“I have believed since January 6th that I had a responsibility to the country to explain why I rejected the theory in advising the vice president,” he said.
If the Supreme Court sides against Luttig and supporters in Moore v. Harper, it could fundamentally change the landscape of election law.
On the surface, the case before the justices presents a redistricting dispute out of North Carolina involving a lower court decision that invalidated the state’s congressional map. The court struck the map – calling it an illegal partisan gerrymander – and replaced it with a court-drawn map more favorable to Democrats.
Republican legislators from North Carolina are now asking the justices to reverse the lower court. They point to the Elections Clause of the Constitution that provides that rules governing the “manner of elections” must be prescribed in each state legislature.
Under the theory, they argue, state legislatures should be able to set rules with no interference from the courts.
Traditionally, legislatures have set ground rules for conducting an election, but have not acted alone or with the final word. Processes set in place have been subject to intervention by election administrators and state courts.
But the strictest reading of the independent state legislature theory says that state courts, when it comes to federal elections, must stay out.
The majority of the North Carolina Supreme Court, in ruling against the lawmakers, said that legislators do not have unlimited power to draw electoral maps. The state court acknowledged that redistricting is primarily delegated to the legislature but said it must be performed in “conformity with the State Constitution.”
The Republican lawmakers appealed to the US Supreme Court, arguing in court papers that the “text of the Constitution directly answers the question presented in this case.” The Elections Clause provides “unambiguous language” concerning the manner of federal elections and makes clear that the rules will be drawn by the legislatures.
On Wednesday, Luttig filed his side’s response on behalf of Common Cause, the North Carolina League of Conservation Voters and the Southern Coalition for Social Justice.
Luttig argued that the lawmakers’ interpretation of the Elections Clause “flouts” the Constitution’s most fundamental premise: “that a government’s power derives from ‘We the People’ and is limited by the constraints the people impose on their government.”
“Conferring power on the state ‘Legislature’ to regulate congressional elections does not nullify state constitutional limits on that power,” Luttig wrote.
Eastman, who served as a key architect of the push to overturn election results for Trump, has filed a sweeping amicus brief asking the justices to adopt the theory, even though it lay mostly dormant until after the 2020 election. Lawyers for the Republican National Committee scaled back on some of Eastman’s arguments, but they, too, want the justices to adopt a version of the theory.
Oral arguments are scheduled for December 7.
On Thursday, several other conservatives – including retired Judge Thomas Griffith, former Missouri Sen. John Danforth, former Deputy Attorney General Larry Thompson, among others – weighed in with a friend of the court brief.
In the new amicus brief, they acknowledged that the current Supreme Court case may not impact actions taken after the election with respect to presidential electors. But they feared that if the Supreme Court emboldens state lawmakers in the voting rules case at hand, it could eventually open the door to new challenges to post-election results.
Unless the Supreme Court resolves the issue now, they also said, it could trigger more lawsuits in 2024 echoing the post-2020 election chaos.
Richard Bernstein, a lawyer for the conservatives who penned the brief, said that if the court were to adopt an “overreading” of the Elections Clause the nation would face waves of federal election litigation every two years.
“If the Supreme Court undermines state courts in this case, the justices will be emboldening both state legislatures and losing candidates to try to steal future elections,” he said.
This story has been updated with additional developments Thursday.