Johnson told Face the Nation this week that the 2020 election was unconstitutional based on a debunked legal theory that if applied would undo the core of American democracy.

Above: Republican House Speaker Mike Johnson (Image via Flickr)

In an interview with Face the Nation this past weekend, Republican House Speaker Mike Johnson repeated the false claim that the 2020 election was unconstitutional. Johnson’s statement, part of an ongoing campaign of election denialism by Republican lawmakers to cast doubt on the legitimacy of Joe Biden’s presidency, is based on an obscure and debunked legal theory that, according to Tom Wolf of the Brennan Center, would undo the system of checks and balances that is a hallmark of American democracy.

Mike Johnson’s claims about the 2020 elections and President Biden’s legitimacy are based on a legal theory that was rejected by SCOTUS last summer. What is that theory?

The independent state legislature theory is an off-the-wall and debunked theory of constitutional interpretation that says that state legislatures have the ability to set the rules for federal elections without any of the normal checks and balances supplied by state constitutions, state courts, gubernatorial vetoes. Proponents of this theory assert that state legislatures can do pretty much whatever they want. Now, in the presidential elections territory, what that translates into is a claim that state legislators can ignore the result of the popular vote in their state and appoint whoever they want to be the presidential electors.

Under this theory, state legislators can ignore voters?

That’s their contention. There are a couple key things to keep in mind here. That has never been the law. It was affirmatively not the law during the 2020 election when Speaker Johnson was trying to organize members of Congress to encourage the courts to throw out election results. And it is certainly not the law after the Supreme Court affirmed that it is not the law this past summer in the Moore v Harper case, which examined the independent state legislature theory in the context of redistricting. The court’s opinion there killed the independent state legislature theory. There is nothing left. There never was an independent state legislature and there is not now.

And yet Johnson and others on the right continue to insist that Biden’s win was illegitimate based on this debunked theory.

Joe Biden won the 2020 election, and there is no way to lawyer out of that result. And there is no way to lawyer oneself into a constitutional justification for a coup. Elections are run under the laws that are put in place through the system of government that exists in the state at the time of the election. State courts had at the time, and they continue to have the authority to oversee the legality of the laws that the state legislature puts in place and ensure that elections are run in a fair and equitable way.

When it took up the independent state legislature theory in the context of North Carolina’s redistricting, the Supreme Court killed it. But in the process of doing that, they were just affirming several things that have been known for a really long time. First, state courts have exercised judicial review over state laws for centuries. That is not just the way elections have run, but the way government has run in this country since the founding. Hundreds of years we’ve conducted our elections in accordance with checks and balances. The multiple generations of Americans who’ve done that, and the multiple generations of judges who have overseen those elections were not wrong.

Speaker Johnson and his allies have not discovered some deep constitutional secret that none of us were aware of before. They are presenting a baseless legal theory in an attempt to … absolve themselves of involvement in an attempted overthrow of the American government or to try to lay the foundations for nullifying the results of the elections going forward. Neither are valid. They weren’t at the time. They are not now.

If Moore v. Harper had gone another way, and this theory had been allowed to stand, what would that have looked like in practice?

If it were left to stand, we would’ve ended up in a country where the legislatures make all the decisions and the people have nothing to say about it. So, for instance, they can draw lines for congressional maps however they want, and state constitutions or governors can’t step in. You would leave all that for our deadlocked Congress to potentially legislate, and our extremely conservative United States Supreme Court, which has never shown itself to be friendly to voters. In fact, it has shown itself to be actively hostile to voters for well over a decade now, if not longer.

You’re basically moving from a system of checks and balances, which again is what we’ve had for over two centuries, and replacing it with a system of legislative supremacy where legislators decide everything and the people have no way to push back. This is a dramatic reshaping of the whole structure of American government.

If this theory was so roundly rejected, why are we still talking about it today? What gives it such staying power?

We’re still talking about it today because of the program of election denialism that is being pumped out by politicians on the right, who are using it as a way of dressing up election denialism in what might seem to be a reasonable legal opinion. It is not a reasonable legal opinion.

What Speaker Johnson’s comments over the weekend suggest is that when state courts allow voters more leeway in periods of emergency like Covid to make sure their votes are counted, that they are somehow violating the federal constitution by deviating in some way from laws that have been passed by the state legislature, which, under the independent state legislature theory, set the rules for federal elections and there are no checks and balances on them. That opinion was wrong in 2020, because there was already more than 100 years of Supreme Court case law saying that was not the case. And it is certainly wrong after Moore v Harper was published this past summer when the Supreme Court definitively killed the independent state legislature theory.

Still, a Washington Post/University of Maryland poll this month found that more Americans question Biden’s victory than they did two years ago. Given all you’ve laid out here, what does that signal to you about the erosion of trust in our electoral system?

At this point, it should be very clear, and even the Supreme Court weighed in on this, the 2020 election was a fairly run election, and the result of it was that Joe Biden won. There are not secret rules somehow encoded in the Constitution that no one discovered until now that would establish that was a wrongfully decided election.

These kinds of continued invocations of bogus legalese to rewrite the history of 2020 is dispiriting because they seem to be creating an environment where people can’t trust either elections or reality. But I think it’s important for people to grab onto this, as this continued distortion of both the historical record and the law is occurring, that it has always been the case, and it is your right as an American living under American democracy, that checks and balances apply to our elections, state legislators do not have a free hand to create whatever rules they want … and state legislators do not have a free hand to disregard your vote for president, overturn the majority and appoint their own candidate. That is just false. They didn’t have that power in 2020. They don’t have it now. And they will not have it in the future.

Thomas (Tom) Wolf is Deputy Director with the Brennan Center’s Democracy Program, where he leads major constitutional litigation and jurisprudence initiatives, and is also the founder and leader of the Brennan Center’s census project.

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