A week ago, Trump explained to podcaster Joe Rogan that the 2020 election was stolen because courts improperly expanded access to the ballot.
“They were supposed to get legislative approval to do the things they did, and they didn’t get it in many cases, They didn’t get it,” the former president rambled. “Like for extensions of the voting, for voting earlier. All these. different things, By law, they had to get legislative approvals. You don’t have to go any further than that.”
Naturally, Trump didn’t invoke the words “independent state legislature theory” — too many syllables, and he likely doesn’t even understand what it is. But his point was pretty much the definition of the ISL, which has taken hold in the GOP since their fraud claims fizzled out. They insist that court orders and actions taken by election officials to expand access to the ballot violate the Constitution’s Elections Clause, which provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
ISL has its roots in Bush v. Gore, in which the Rehnquist Court opined that each state legislature’s authority was “plenary,” and it could even cancel elections and simply award electoral votes as it saw fit. A few Republican politicians, such as Maryland’s Rep. Andy Harris, are now openly advocating for state legislatures to do just that this cycle. But most have retreated to mumbling like House Majority Leader Steve Scalise that “There were a few states that did not follow their state laws. That’s really the dispute that you’ve seen continue on.”
And yet the RNC has zero problem running to the courts to get them to change the rules set out by the legislature when it’s their voters (maybe!) getting the short end of the stick.
The issue arose in Bucks County, where there were long lines on the last day to register and vote absentee.
Bucks County Law enforcement guarding the end of the line for voters which would designate the 5 PM deadline to apply for mail in ballots. Some who showed up later are being handed paper applications being told to hand them in by 5 PM.@FOX29philly pic.twitter.com/axLXtbhTHI
— Chris O’Connell (@CoconnellFox29) October 29, 2024
The state does not permit in-person early voting, but it does allow voters to fill out an absentee ballot in person and return it immediately. That process requires several minutes of interface with election clerks for every ballot, though, and takes substantially longer than simply walking in and voting on a machine. It should be noted that this logjam was virtually guaranteed by Republican state legislators, who refuse to make it easier to cast a ballot in the Commonwealth; and by Republicans, who fearmonger about drop boxes so aggressively that their own voters are terrified to use them.
By statute, the last day to request an absentee ballot is seven days before the election, i.e. Tuesday October 29. According to the Philadelphia Inquirer, election officials in Bucks County told voters who were in line by 2:30 on Tuesday that they could fill out the forms and cast their absentee ballots that day. Everyone who was in line by 5 could request a ballot and either receive it by mail or pick it up later in the week. But that didn’t stop Republicans from claiming that the long lines were evidence of an effort to suppress the votes of Trump supporters.
Here’s RNC Chair Michael Whatley, along with Val Biancaniello, a PA GOP official in Delaware County who got herself arrested for harassing voters in line to cast absentee ballots on Monday.
https://x.com/ChairmanWhatley/status/1851393618365362352
In 2020, President Biden took 63 percent of the vote in Delaware County, and 52 percent in Bucks County. Nevertheless, Whatley tweeted that Biancaniello’s arrest “follows reports from across the commonwealth that voters are being turned away in conservative areas.”
The RNC and the Trump campaign characterized attempts to manage the line of voters as “voter suppression,” and they filed suit in the Bucks County Court of Common Pleas alleging that officials had violated the law by not allowing everyone in line by 5 to cast their vote on site that day. The statute, and indeed the complaint itself, are a little unclear as to whether voters have the right to vote absentee in person, or simply to request the ballot by the deadline. But the petitioners got their wish, with Judge Jeffrey Trauger granting a preliminary injunction ordering election officials to continue to process and accept absentee ballot requests through November 1.
Because sending out absentee ballots requests to all voters, accepting ballots in the park, ballot drop boxes, and court-mandated voting modifications during a pandemic are illegal. But having a court order two more days of early voting is totally kosher. And Trump will explain that fine distinction to Joe Rogan when he runs again in 2028.
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
