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Ginni Thomas’ scheme for lawmakers to choose electors could be advanced by high court

A case before the Supreme Court could strengthen the plot to allow state lawmakers to choose presidential electors.

WASHINGTON (CN) — Virginia “Ginni” Thomas sent emails to 29 Republican legislators in Arizona urging them to disregard the results of a fair and free election and instead choose presidential electors that would give another result, according to emails uncovered by the Washington Post. Her husband will be considering a case on the nation’s highest court that could legitimize a theory to make these efforts a reality. 

After President Joe Biden’s win was declared in Arizona, Ginni sent emails to lawmakers in the state urging them to “stand strong” and “ensure that a clean slate of electors is chosen,” according to reporting from the Post. 

Presidential electors are chosen by voters. The idea of subverting the vote using this plot was advanced by many aside from Thomas in efforts to keep former President Donald Trump in the White House. While these efforts were unsuccessful in 2020, experts say that doesn’t mean they will continue to fail in the future. 

“This was part of the effort to overturn the election to get state legislatures to award electors to Trump in states where calculations showed that Biden had the greatest number of votes,” David H. Gans, director of the human rights, civil rights and citizenship program at the Constitutional Accountability Center, said in a phone call. “Ultimately, the theory that was pushed, no state took that up, but we still see the theory is out there like a loaded gun insisting that states do have this power.” 

This plot is supported by a controversial legal theory known as the independent state legislature doctrine that says legislatures should have complete control over elections. Advocates of this theory claim the U.S. Constitution grants the legislature primacy in making the rules for federal elections and can only be checked by Congress. 

“There's a push by conservatives in many different places and arenas arguing based on what is often called the independent state legislature doctrine that state legislatures have sweeping delegated powers that can't be interfered with in any manner,” Gans said. 

There are two different paths for the source of this power: the Elections Clause or the Presidential Electors Clause. Both of these clauses give lawmakers power over the procedural mechanics of the electoral process. The Elections Clause says states have an obligation to regulate the time, place and manner of federal elections, and in the Presidential Electors Clause, legislatures would have power over the manner of appointment. 

“A state legislature could say, in advance of the election, we set the rules by saying the state legislature will decide who gets the electors,” Gans said.

Justice Thomas indicated his support for this theory in multiple cases during the 2020 election. In October, he dissented in a Pennsylvania case over mail-in ballots where Republicans claimed the state Supreme Court violated their authority over elections by forcing them to continue counting ballots received by Nov. 6. Thomas also indicated he would have granted an injunction in a North Carolina case challenging absentee ballot deadlines where lawmakers claimed the court did not have authority to change election law. 

Earlier this year, two cases on the court’s shadow docket from Republicans in North Carolina and Pennsylvania tried to use the independent state legislature theory in the Election Clause context to overrule state court rulings on congressional maps. Relief in both cases was denied by the court, but three of the court’s conservative justices dissented in North Carolina’s case. 

Justice Samuel Alito — joined by Thomas and Justice Neil Gorsuch — wrote a dissent that leaned into the idea that the Elections Clause gave state legislatures supreme power over federal elections. 

North Carolina’s case is now before the court as a certiorari petition. If the justices decided to take up the case, it could have huge implications for elections across the country but it wouldn’t necessarily give a green light to the Presidential Electors Clause context for the independent state legislature theory. However, experts say a ruling in the case could give legitimacy to the theory as a whole. 

“By suggesting that state legislatures should have the power to overturn the election by awarding electors after the fact, obviously that's a little bit different from the issues that are in the North Carolina case, but they both are branches of the same tree, that the state has these independent powers that are untouchable by other institutions,” Gans said. 

The justices are set to review the petition at their June 16 conference. 

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