The independent-state-legislature theory ultimately boils down to a single word: “legislature.” It appears in two relevant places in the Constitution—the Elections Clause, which pertains to how federal elections are administered, and the Electors Clause, regarding the appointment of Presidential electors. Both processes are to be directed in “each State” by “the Legislature thereof.” Benjamin Ginsberg, the Bush-Cheney campaign’s national counsel, told me that, in 2000, I.S.L.T. “was never our main focus. It was one of many things we were flinging against the wall.” John Bolton, one of the Bush campaign’s lawyers, who later served as national-security adviser under Trump, told me, “I don’t know that we fully thought through the future implications. It was more, The clock is ticking. What else can we try?” In his book “Down and Dirty: The Plot to Steal the Presidency,” from 2001, Jake Tapper attributes the I.S.L.T. eureka moment to Don Rubottom, then a mid-level Republican staffer in the Florida House, who went to work the morning after Election Day and showed his boss the Electors Clause. “My thing was, If this comes down to the wire, it looks like the Constitution says it’s our job to step in,” Rubottom told me. By December 11th, Republicans in the Florida legislature had introduced a resolution appointing a slate of electors for Bush. “The House even passed it,” Rubottom said. “But then Bush v. Gore happened.”
Laurence Tribe, a law professor emeritus at Harvard, represented Gore in a related case that went to the Supreme Court shortly before Bush v. Gore. “We knew that this was a claim that was out there, about the primacy of the legislature, but, frankly, we thought it was such a flimsy argument that none of the Justices would be tempted by it,” Tribe told me. “So, when Chief Justice Rehnquist started asking me about it during oral argument, I thought, Oh, that’s not good news.” On December 12th, the Court issued the ruling in Bush v. Gore that made Bush the President-elect. The constitutional ground was the Fourteenth Amendment, but William Rehnquist, joined by Thomas and Antonin Scalia, wrote a concurring opinion, holding that “there are additional grounds that require us” to find in Bush’s favor. The first one he mentioned was the ostensible special power of the state legislature. (He put the word “legislature” in italics, for added emphasis.)
As Rehnquist’s italics suggested, I.S.L.T. might seem like an open-and-shut case. “Pretty simple,” Carvin told me. “Legislature means legislature.” And yet, in a text as multivalent as the Constitution, a cigar is never just a cigar. Does “freedom of speech” mean only literal speech, or does it also refer to a written sign, a pornographic image, an algorithm, a campaign contribution? Does “well regulated Militia” cover only literal militias, or can it also apply to a suburban mom who wants to exercise her inalienable right to bring a Ruger to church?