The SCOTUS Amicus Brief Mike Johnson Spearheaded in the 2020 Post-Election Litigation

I have mixed feelings about new House Speaker Mike Johnson. On the plus side, having a Speaker rather than an empty chair increases the likelihood that must-pass legislation--including funding the government--will actually pass. In addition, a Speaker named Mike is long overdue. True, Michael C. Kerr was Speaker for eight-and-a-half months during the 1870s, but he's hardly a hero to us progressive Michaels: an Indiana Democrat who died in office, Kerr opposed Reconstruction.

And that's about it for the upside: Mike Johnson is probably better than nobody; and he shares my first name.

Which brings me to the downsides of Speaker Johnson. To begin, Johnson's most fundamental commitments appear to be theocratic, including not only standard evangelical fare like opposing abortion and LGBTQA+ rights but actually suing the state of Kentucky for pulling tax incentives from a Noah's Ark theme park that was determined to hire only employees committed to "young Earth" creationism. In 2016, Johnson won a federal district court victory in a ruling that anticipated the more recent development in SCOTUS jurisprudence that treats efforts by states to distance themselves from discrimination by religious institutions as itself forbidden discrimination against religion. I'm less interested right now in the skill Johnson displayed as a lawyer in that case than what his choice of client confirms. In 2021, Johnson said that visiting the ark theme park "is one way to bring people to this recognition ... that what we read in the Bible are actual historical events.” Thus, the person now standing behind the Vice President in line for the Presidency believes that the Biblical account of the flood and apparently everything else in the Bible, including the bits that contradict other bits in the Bible, are literally accurate.

Even so, plenty of people with religious views that I or others who don't share them might find self-evidently absurd can and do make outstanding public servants. I'm less bothered by what I take to be Speaker Johnson's views about theology than I am about his willingness to see the government act on those views to oppress people by, for example, forcing them into reproductive servitude or punishing them for loving people of the same sex. Were this primarily an essay about Johnson's theocratic stance, I might at this point also say something about his paranoid worldview, which includes the following claim about who is oppressed on religious grounds in the United States (quoted in the NY Times story linked above): “It is only and always the Christian viewpoint that is getting censored.”

Perhaps I'll have more to say about Speaker Johnson's theocratic views as they become salient. For now, however, I want to pivot to his election denialism. It has been widely reported that Johnson was one of the House Republicans who voted against certifying the results of the 2020 Presidential election. But he was no mere coward who did so for fear of a Trumpy primary challenger. Johnson was the leader of the effort by House Republicans to overturn the election through the courts. His name and only his name appears in the title of the "Brief Amicus Curiae of U.S. Representative Mike Johnson and 125 Other Members of the U.S. House of Representatives" filed in December 2020 in support of the original jurisdiction case brought by Texas asking the Supreme Court to block the certification of Electoral College votes in various defendant states that Biden won.

Texas filed its original jurisdiction action on December 7, 2020. Two days later, I wrote on this blog that it faced two substantial procedural obstacles. First, because the original action recycled claims that had already been rejected by state courts and lower federal courts, I thought it highly unlikely that the the Supreme Court would hear the case, although I acknowledged that two Justices--Thomas and Alito--had previously expressed the view that the Court lacks the power to decline jurisdiction in state-versus-state original jurisdiction cases. Second, I explained why the theory of standing necessary to permit one state to challenge another state's certification of its electoral votes was both self-contradictory and incredibly broad. Accordingly, I was relieved but hardly surprised when the Supreme Court on December 11, 2020, rejected the case for lack of standing, with Justice Alito, joined by Justice Thomas, writing separately only to briefly reiterate their view that cases within the statutory state-versus-state jurisdiction were mandatory but also stating that beyond allowing the brief to be filed, they would not grant any relief.

If the Court had reached the merits in Texas v. Pennsylvania, it would have had to evaluate the claim that various decisions by state executive branch officials and state judges had violated Article II, Section 1, by usurping the power of the state legislature to determine the manner of selecting a state's electors. Texas and the other states relied on the "independent state legislature" (ISL) theory that had been tentatively launched by Chief Justice Rehnquist in his concurrence (joined by Justices Scalia and Thomas) in Bush v. Gore. Earlier this year, in Moore v. Harper, SCOTUS rejected the most extreme version of ISL, but in December 2020, it was at least theoretically possible that the Court would accept a broad version of ISL in a case that properly teed it up.

What can we learn from the amicus brief by Mike Johnson and the other 125 Republicans? It added nothing substantive to the brief by Texas and was thus likely intended simply as a show of support--a means of demonstrating to Trump and his base that Johnson and the others were out there fighting. And yet, despite saying virtually nothing, the Johnson brief managed to be highly misleading in its use of precedent.

Beyond the long list of names of signatories, the Johnson brief consists of: a) ten pages purporting to show how the election in Pennsylvania, Georgia, Michigan, and Wisconsin had been conducted in a manner that departed in one way or another from the literal language of state statutes and thus violated the extreme version of ISL theory; which was preceded by b) a little over five pages making the argument for extreme ISL. The brief cited exactly three Supreme Court cases. Let's examine them.

(1) Consider the following text from pages 4-5 of the Johnson brief:

when a state legislature exercises its power to determine the manner in which electors are chosen, that power is governed solely by the federal Constitution. See Leser v. Garnett, 258 U.S. 130, 137 (1922) (the function of state legislature in carrying out a federal function derived from the U.S. Constitution “transcends any limitations sought to be imposed by the people of a State”). No state constitution, state law, state governor, state election official, or court can alter or constrain that grant of power.

That seems pretty powerful--unless one bothers to look up Leser v. Garnett, which turns out to have nothing to do with the power to select electors. Rather, the claim was made that Maryland did not have to follow the Nineteenth Amendment and permit women to vote because some of the state legislatures that ratified it were forbidden from doing so by their state constitutions. The language the Johnson brief quotes was used by Justice Brandeis for a unanimous Court to underscore that the federal Constitution nonetheless confers on state legislatures the power to ratify federal constitutional amendments. But of course a state's ratification of a proposed federal constitutional amendment is a binary decision. It does not leave open questions of execution or interpretation in the way that state election laws do. Thus, Leser doesn't speak at all to the claim made by extreme ISL's champions: that state legislative action with respect to Presidential elections (and congressional elections, pursuant to Article I, Section 4) precludes all but the most robotic compliance by other state officials.

Indeed, Leser goes on to undercut the central claim of Texas in Texas v. Pennsylvania. Another reason offered against the validity of the Nineteenth Amendment was that its ratification had been procedurally defective in Tennessee and West Virginia. Justice Brandeis rejected that claim on the ground that the actions of the state legislative and executive officials in certifying the results were "conclusive on the courts." If Leser is, as the Johnson brief claimed, relevant to one state's challenge to another state's certification of Presidential electors, its central lesson should have been this: just as Maryland can't point to supposed ratification defects in procedures used by Tennessee and West Virginia, so Texas can't point to supposed elector selection defects in procedures used by Pennsylvania, Georgia, Michigan, and Wisconsin. Leser doesn't simply fail to support the argument that Johnson and the other Republicans were making. Honestly described, the case rather decisively undercuts that argument.

(2) Here's how the Johnson brief (at page 7) cited a second Supreme Court case:

“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964).

Johnson and his co-signers were supporting Texas in its request that the Supreme Court block state certifications. Doing so would, as Judge Bibas had forcefully explained for the Third Circuit two weeks earlier, have the effect of "disenfranchising a huge swath of the electorate." Wesberry v. Sanders applied the principle of one-person-one-vote. It did so, notwithstanding the commitment to state legislatures by Article I, Section 4, of the power to draw district lines. The Court relied on substantive, not formalistic, conceptions of equal voting rights. Like Leser, the entire spirit of the Wesberry case was directly contrary to that of the argument advanced by Texas.

(3) Finally, I'll give a tiny bit of credit where a tiny bit of credit is due. The third Supreme Court case cited by the Johnson brief (at pages 5-6) was McPherson v. Blacker, which does indeed say that state legislatures can decide whether they want to choose electors by statewide election or some other means. That doesn't tell us much about how state executive officials and judges should construe state laws governing federal elections, but if Johnson and his team were better lawyers or had more time, they might have remembered that the Rehnquist concurrence in Bush v. Gore had relied in part on McPherson, and that the full Supreme Court had relied on McPherson for something like ISL in Bush v. Palm Beach County Canvassing Board. So to be charitable, we might chalk up the Johnson brief's citation of McPherson but neither of the 2000 SCOTUS Presidential election cases to a time crunch rather than to dishonesty.

Even so, immediately after quoting McPherson, the Johnson brief makes the following claim: "Because the Framers recognized elections could be corrupted or stolen, they created the Electoral College as a safeguard and empowered state legislatures to ensure the integrity of our unique election system." Needless to say, no citation is provided for the remarkable proposition that the Electoral College was designed to safeguard against voters casting fraudulent ballots.

To be sure, in Federalist 68, Alexander Hamilton counted combating "corruption" among the virtues of the Electoral College relative to plebiscitary selection of the President, but he did not have in mind individual-level voter fraud. Rather, Hamilton worried that direct popular election of a President would lead to the elevation of a demagogue beholden to a foreign power, a risk he believed the Electoral College would mitigate. Insert your favorite Trump/Putin meme here.

Anyway, even if one could find support for the Johnson brief's historical claim that the framers intended the Electoral College as an anti-fraud mechanism, that claim is false as a description of how the institution actually functions today. The margin in the national popular vote is typically much greater than in any state. The closest popular vote in the last sixty years of Presidential elections was in 2000. Bush's margin over Gore in Florida was 537 votes. Gore's margin in the national popular vote was 543,895 votes--three orders of magnitude greater. Because it is easier to corrupt or steal an election decided by a few hundred votes than one decided by hundreds of thousands of votes, the Electoral College makes fraud easier, not more difficult. (Even in the extremely close popular vote in 1960, when Kennedy bested Nixon in the Electoral College by a comfortable margin of 303 to 219, allegations of fraud focused on individual states like Illinois, where Kennedy's margin was under 9,000, still an order of magnitude smaller than the national popular margin of over 100,000 votes.)

To be clear, the dubious claim about the purpose of the Electoral College does not play a critical role in Johnson's brief. I highlight it because it is of a piece with the rest of the brief. The fact of the brief demonstrates that Johnson and the other signatories are Trump loyalists. The content of the brief shows that Johnson has few qualms about confidently asserting nonsense in the guise of legal argument. 

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No doubt Mike Johnson looks much more like a cautious lawyer than a pugilistic bully in the mold of Jim Jordan. But appearances can deceive. In his conservative suit and glasses, Johnson also cuts a much more innocuous figure than, say, the QAnon Shaman.

The Don Henley song Gimme What You Got includes the line "a man with a briefcase can steal more money than any man with a gun." Likewise, a bespectacled man with a briefcase can more effectively undercut democracy than any bare-chested man in a horned fur hat.