Will Justice Barrett Switch Sides on Independent State Leg. (ISL) Theory?

Yesterday, the SCOTUS granted certiorari on a North Carolina case addressing the ISL theory: 

The Supreme Court on Thursday agreed to hear a case that could dramatically change how federal elections are conducted. At issue is a legal theory that would give state legislatures unfettered authority to set the rules for federal elections, free of supervision by the state courts and state constitutions.

The theory, known as the "independent state legislature theory," stems from the election clause in Article I of the Constitution. It says, "The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof."

Proponents of the theory argue that that clause gives state legislatures power to regulate federal elections uninhibited by state courts or state constitutions. If a majority of the Supreme Court agrees, that would hamstring state courts, removing judicial oversight of state elections.

Curiously, back in 2000, Amy Coney Barrett (ACB), 1 of the GOP justices who may apply this dangerous theory in the next term, argued on the opposite side in an absentee ballot case in Martin County, FL:

Amy Coney Barrett was just three years out of law school, a 28-year-old associate at a boutique Washington law firm, when she was dispatched to Florida to help George W. Bush’s legal team rescue thousands of Republican absentee ballots.

The litigation was a sidebar to the central drama of the 2000 presidential contest, but a loss in the case could have cost Bush the presidency.

At issue were thousands of absentee ballot request forms in Martin County — just north of Palm Beach County, home of the notorious “butterfly ballot” — that had missing voter registration information.

After county officials allowed the GOP to take the forms back and fill in the missing information, a Democratic voter sued, saying ballots cast by those voters should be tossed out. The county canvassing board, the Florida Republican Party and the Bush campaign argued that the votes should still count.

ACB’s Martin County case was 1 of 2 cases addressing whether absentee ballots that were not procured in compliance with state statute should be counted.  The other case (in Seminole County—just north of Orlando) was filed by a close friend, and we discussed that case, on average, roughly every other day while it was pending. We discussed various issues involved in that case, and I served as an occasional sounding board for him. I am intimately familiar with the legal issues involved in those 2 cases.

 The legal issues involved in ACB’s Martin County case and my friend’s Seminole County case were addressed in this NYT op-ed from 12/9/00:

Two Florida judges refused yesterday to disqualify absentee votes in Martin and Seminole Counties, despite technical violations of state law. They made good, sound decisions, comporting with common sense and Florida case law. There's just one little problem -- a problem that Florida's State Supreme Court will have to deal with if and when it hears an appeal. The two circuit judges committed the very same error that caused the United States Supreme Court last Monday to vacate the Florida Supreme Court's decision, on Nov. 21, extending a deadline for manual recounts.

In that case, the federal justices demanded clarification from the state justices to ensure that the state court had not relied on Florida's Constitution, instead of following the directives of Florida's Legislature, in its ruling.

Normally, a state court must follow a state constitution. But in presidential elections, the United States Supreme Court indicated, federal constitutional and statutory law make the state legislature the supreme authority, so that statutory requirements must be strictly complied with. The state courts have no power to depart from the legislature's commands on the basis of either equity or the state's constitution.

In short, back when ACB was trying to get the GOP nominee elected president, she argued AGAINST the ISL theory.  Had the ISL theory been applied in her case, her side would’ve lost, and absentee ballots that were procured in violation of applicable FL statutes would’ve  been thrown out.  There were more than enough absentee ballots involved in Martin and Seminole Counties to have eliminated the officially established margin of 537 votes that ultimately resulted from the 5-4 Bush v. Gore decision.

It would be helpful if counsel in the Moore v. Harper were aware of ACB’s prior history.  Her own past actions in the only seriously litigated presidential election since 1876 were expressly counter to the ISL theory.  Her voting to apply it in 2023 after arguing against it in 2020 would be an interesting maneuver.  

During questioning by Sen. Klobuchar during her confirmation hearings, ACB could not recall what she did in the 2000 litigation:

KLOBUCHAR: I want to turn to something we talked about yesterday... You worked on the recount in Florida that was related to the Bush v. Gore case, including on an absentee ballot issue on behalf of the Republican side of that case, is that right?

BARRETT: I did work on Bush v. Gore on behalf of the Republican side. To be fully honest, I can't remember exactly what piece of the case it was.

Hopefully, counsel in Moore will be able to remind the justice of her past position when that case comes before the Court next term.