A Dangerous Legal Theory Returns for 2024

Red background with black and white toned image of Frankenstein's monster with "ISL" printed on his forehead and the complaint from a recent lawsuit in Michigan folded into the background.

If being a Republican politician means never having to accept the result of a free and fair election, then being a Republican lawyer means never having to abandon a fringe legal theory. This mindset has created a perpetual war on voting rights and democracy. It also explains the GOP’s latest legal high stakes gambit in Michigan.

You may recall that last summer, the U.S. Supreme Court rejected the fringe right-wing independent state legislature (ISL) theory. In Moore v. Harper, North Carolina’s Republican Legislature argued that state courts were powerless to use the North Carolina Constitution as the basis to review and invalidate the enacted congressional redistricting map. As I wrote at the time:

The crux of their argument was language in the U.S. Constitution that grants state legislatures the ability to set the ‘time, place and manner’ of congressional elections, subject only to an override by Congress. Since state courts are neither the state legislature nor Congress, the reasoning goes, they remain powerless to review and strike down legislative enactments, including redistricting lines, that involve federal elections.

In a 6-3 decision, the Supreme Court squarely rejected this claim, and put to rest this dangerous novel legal theory. Or so it seemed.

Recently, a group of Republican legislators in Michigan filed a new federal lawsuit seeking to resurrect the ISL theory. Their targets are two pro-voting constitutional amendments that were added to the Michigan Constitution via voter-approved ballot measures in 2018 and 2022.

Collectively these two constitutional amendments expanded voting rights and democracy in the state. The 2018 amendment enshrined the right to vote on a secret ballot and expanded opportunities to register to vote and obtain and cast mail-in ballots. The 2022 amendment further protected mail-in voting while also expanding early voting. Together they helped expand voting rights and ensure legal ballots are counted.

This lawsuit, which seeks to limit direct democracy and undermine free and fair elections, is the perfect storm of GOP anti-democracy ambitions. As I’ve said before, Republicans want to make it harder to vote and easier to cheat. 

More likely, however, is that the GOP plaintiffs and their attorneys want to lay a predicate now to contest the 2024 election.

The Republican legislators who brought the lawsuit claim to be injured by the pro-democracy provisions in the state constitution. Their complaint is reminiscent of when a Republican lawyer told the Supreme Court that invalidating a voter suppression law in Arizona “puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game.”

Limiting who can vote is at the core of the Republican Party’s identity. The confident party of former President Ronald Reagan that boasted of popular mandates is now a shrunken conspiracy-minded movement searching for ways to exercise majority power with a minority of voter support.

Fortunately, the legal gambit to overturn the pro-voting constitutional amendments in Michigan is destined to fail. Last term, the Supreme Court rejected the fringe ISL theory in Moore. There is no reason to think the Court will want to take up the issue again so soon or on these facts. Further working against the GOP lawsuit is that it also directly contradicts an earlier Supreme Court case that specifically approved of the ballot initiative process as a means of adding election-related provisions to state constitutions.

Reading the initial filings in this new Michigan case, I was left wondering why these plaintiffs are bringing this specific case. As noted, it advances a bogus legal theory that was recently rejected by the Supreme Court and runs directly against an earlier Supreme Court case as well. And, even if the high Court were to agree, Democrats control the Michigan Legislature and governorship and have already begun enacting these provisions into state law.

One possibility is simply bad legal strategy. Republicans and their attorneys regularly make litigation decisions that defy common sense and at least some of the attorneys in this case have a history of bringing meritless voting cases.

More likely, however, is that the GOP plaintiffs and their attorneys want to lay a predicate now to contest the 2024 election. Just as former President Donald Trump and his allies did after the 2020 election, Republicans are planning on blaming the voting rules for why they lost. They will couple it with an attack on the courts and false claims of fraud.

I suspect that their plan is for this case to remain pending and unresolved by Election Day 2024. That would allow them to use it as a cynical tool to claim election fraud and illegal voting rules robbed them of a fair outcome. It would give them a basis to contest the outcome of the Michigan results once again in court and Congress. When they fail, it will fuel their pathological election denialism.

All this makes it even more important that it be litigated aggressively now. This dangerous legal theory must be soundly rejected in court and the case must be adjudicated quickly. The outcome of the litigation is not in serious doubt, but to protect democracy, this dangerous legal theory must again be defeated.