David Burns: Mike Lee or: How I Learned to Stop Worrying and Love The Independent State Legislature Doctrine

Lee’s independent legislature theory sets the stage to overturn the 2024 election.

In this image from video, Sen. Mike Lee, R-Utah, speaks as the Senate reconvenes after protesters stormed into the U.S. Capitol on Wednesday, Jan. 6, 2021. (Senate Television via AP)

When Sen. Mike Lee’s text messages to Mark Meadows leaked in late April, I naturally assumed that these snippets of dialogue, even though taken out of context, proved that Lee had actively, nefariously, and semi-secretly schemed to overturn Joe Biden’s win in the 2020 presidential election. I happily lumped Lee into the same basket of deplorables as Sidney Powell, John Eastman, and Rudy Giuliani, who also served in Donald Trump’s platoon of misfit coup plotters.

But since then, more disclosures, new developments, and a fuller understanding of the context have, for me at least, complicated that easy narrative. John Adams was right: “facts are stubborn things.”

The public reporting suggests Lee stayed on the right side of the law by not crossing the line that separated Eastman’s fake electors from the real ones. In his main effort, Lee worked on Trump’s behalf by lobbying Republican legislators in the seven or so swing states to appoint what he called “alternate” slates of the electors who elect presidents. The legal basis for that was novel (more on that later), but his actions fell short of conspiring to defraud the United States.

And that, I believe, is the real story that needs to be told. Lee’s lonely strategy for overturning the 2020 presidential election is now a bellwether — a preview of how in 2024 the Republican right-wing may again go rogue if it doesn’t like the outcome. Viewed in this light, Lee’s scheming on behalf of Trump is both more interesting and more telling than, say, the clown shows of Senators Ted Cruz and Josh Hawley. It is also more disturbing and more dangerous to our democracy.

Soon after the attack on the Capitol, Lee started fielding questions about his involvement in Trump’s post-election efforts to overturn the result. Lee was conspicuous for being one of only two U.S. senators — the other was Lindsay Graham — who took the fraud claims seriously enough to personally investigate.

In a pre-leak interview, Lee denied that he had helped the Trump campaign to overturn the election. Even though the U.S. Senate’s only role after a presidential election is to count elector ballots, Lee claimed he devoted two months of his valuable time to keeping Trump in office because he “was genuinely curious about where it would go.” Yet when the text messages leaked, even the Deseret News observed that Lee “was more involved — more invested — in Trump’s efforts” than he had let on.

Lee revealed his true intentions in a lengthy interview that included a discussion of the U.S. Constitution, of course. What Lee objected to most about Trump’s strategy was not that he wanted to overturn a free and fair election. Lee was onboard for that. Instead, he thought Eastman’s plan to have Vice President Mike Pence simply declare Trump the winner on Jan. 6 needed at least a patina of (legal) legitimacy. And he believed his plan to gin up alternate slates of electors appointed by Republican state legislatures provided that patina.

The Elector Appointment Clause assigns the power to direct the “Manner” in which a state appoints its presidential electors to the “Legislature thereof.” According to Lee, this small clause grants a state legislature big powers to “select the electors itself.” This means a state legislature can direct the outcome of a presidential election, “if it so chooses,” even if the popular vote has to be thrown out. And the laws and constitution of a state can’t limit this superpower (“plenary”) because it comes from a higher authority — the U.S. Constitution.

After the Electoral College met on December 14 and elected Biden, Lee believed “the only possible way for the election to be overturned in Trump’s favor … was if a state had submitted a ‘dueling slate of electors’ — multiple groups of electors that voted for different candidates.” And this needed to happen before Congress gathered to count elector ballots on Jan. 6 — hence Lee’s intense lobbying of swing state Republicans in December and early January.

Enter the legal doctrine with an odd name. Hayward H. Smith is a lawyer who, 20 years ago, wrote a law review article about an obscure passage authored by three conservative justices in the controversial Supreme Court decision, Bush v. Gore. The passage expressed their view that a state legislature’s power to appoint presidential electors may not be checked by a state constitution.

Smith disagreed with this novel theory, so much so that the name he gave it was intended to be a pejorative — the “independent state legislature doctrine.” There are no “independent” state legislatures, Smith countered; only state legislatures that fit into our well-known framework of checks and balances, which includes judicial review of legislative decision-making.

But the name stuck, and the doctrine, which in substance Lee had promoted to the Trump campaign in 2020, has moved to the forefront of the right’s efforts to undermine presidential elections. At the end of June, the Supreme Court said it would hear Moore v. Harper in the upcoming term. The Court appears to have accepted the case as a vehicle to consider the ISL doctrine, and its right-wing majority will likely read at least some part of it into the Constitution in advance of the 2024 presidential election.

In a stroke of good timing, days before the Supreme Court accepted Moore v. Harper, Smith published a new, 138-page article on the complete history of ISL-like arguments, from the founding to the present. Nothing, he found, supports the originalist view that state legislatures are invested with unchecked authority to appoint the electors that elect presidents. “The history,” he concluded, “demonstrates beyond cavil that the Founding generation understood that ‘legislatures’ would operate as normal legislatures, not independent legislatures.”

Still, Lee’s fringe view in 2020 that legislatures can decertify the results of the popular votes in their states could soon become constitutional. Already, the ISL doctrine is having an impact in Utah. The state has asked the district court hearing a challenge to the legislature’s redistricting maps to pause the case until after the U.S. Supreme Court decides Moore v. Harper. An outcome in favor of the North Carolina Legislature, it submits, would effectively decide the case in favor of the Republican-controlled Utah Legislature, which would then be free to openly engage in partisan gerrymanders.

(The Texas lawsuit Utah Attorney General Sean Reyes joined in December 2020 seeking to overturn Biden’s win also relied on the ISL doctrine.)

Until now, Lee was an eccentric outlier — the only senator to oppose something as straightforward as a Japanese internment camp historic designation in rural Colorado. But many Republicans have now joined him on the far-right, and together, they may have discovered in the ISL doctrine the patina of legitimacy they will use to further undermine presidential elections — just as Lee had argued to Meadows, and through him, Trump.

David Burns

David Burns has degrees in history and law. He resides in Salt Lake City.