His brand of election denial is just as wrong as Rep. Marjorie Taylor Greene’s. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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In an interview over the weekend, Speaker of the House Mike Johnson again insisted that he’s not an election denier. Then . . . he falsely claimed the 2020 election was illegitimate.

Johnson takes pains to distinguish himself from people like Rep. Marjorie Taylor Greene (R-GA), who insists that widespread voter fraud decided the 2020 election. To that rough claim he applies a legalistic-sounding varnish. Amid the frenzy of theories about rigged voting machines, Italian spy satellites, and mysterious boxes of ballots, he engineered a more civilized-sounding reason to block the election results. The problem, he insisted, was that state officials violated the Constitution by expanding absentee voting, offering mail ballots, and making other changes in response to the Covid-19 pandemic. In the real world, this heroic effort by election officials of both parties led to a smooth and secure election, handling the highest voter turnout since 1900. To Johnson, these moves were illegal and undermined the integrity of the election.

This is an empty distinction. Johnson and Greene both believe the 2020 election was stolen — their only disagreement is who stole it. Johnson is an election denier with horn-rimmed glasses and a law degree.

In his interview on CBS’s Face the Nation last weekend, Johnson repeated his claim that “what happened in many states by changing the election laws without ratification by the state legislatures is a violation of the Constitution. . . . That’s a plain fact that no one can dispute.”

In fact, the Supreme Court repudiated this very claim last June. Johnson’s theory was reflected in what became known as the “independent state legislature theory.” That’s the claim that the Constitution gave state legislatures sole authority to set federal election rules with no checks and balances from state courts, constitutions, governors, or voters — and that nobody had noticed it until now.

Johnson’s notion was nonsense. No court had ever found it in two centuries, and it was not how elections were run anywhere in the country. In Moore v. Harper

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, Chief Justice John Roberts and Trump appointees Brett Kavanaugh and Amy Coney Barrett joined the liberal justices. Johnson’s “theory” was wrong previously, and it is even more wrong today. Now that is a “plain fact that no one can dispute.”

Were Johnson making his case before a court of law, he could be sanctioned for failing to acknowledge legal authority contrary to his own position. Politicians, on the other hand, are free to say silly stuff. But he is more than a pundit hungering for airtime or clicks. Johnson is second in line to the presidency and could play an important role in any congressional consideration of the outcome of the 2024 presidential election.

These days, journalists puzzle over how to cover Donald Trump, whose speeches and social media posts veer increasingly toward out-and-out authoritarianism. Ignore him? Or cover him? It’s time to ask the same question about Mike Johnson. Now he wields enormous power. What would he do this time? I hope he’ll be asked, again and again, why he remains an election denier — his denials notwithstanding.





Next Decade’s Political Shake-Up

New population estimates released by the Census Bureau suggest that the 2030 congressional reapportionment process could bring profound shifts in political power. If current trends continue, population losses in one-time boom states such as California could leave them with fewer House seats, while rapid growth in the South could yield new seats for states including Texas, Florida, and Georgia. Given the South’s track record of gerrymandering, these changes “will have major ramifications for fair representation and fair maps,” Michael Li and Gina Feliz write. Read more

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A Double Standard in the Courts

Federal courts have long been required to only take up disputes in which there are concrete stakes for the parties. However, the decision by a conservative federal appeals court to endorse far-fetched claims of injury by anti-abortion plaintiffs challenging the use of the abortion drug mifepristone exposes how courts are taking advantage of this ambiguous “standing” test to pick and choose which cases they hear. The lawsuit, which is now before the Supreme Court, gives the Court “the opportunity to reassure the public that it’s at least committed to respecting long-standing constitutional limits on which issues are properly before it,” Alice Clapman writes. READ MORE

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The Dangerous Exception to AI Safeguards

The Biden administration’s approach to regulating artificial intelligence has a major flaw: it essentially exempts national security agencies, including parts of the FBI and the Department of Homeland Security, from the basic rules that aim to prevent these technologies from being abused. Federal agencies are already deploying AI tools, and there is little or no public information on what safeguards are in place to prevent discrimination and protect privacy and other rights. Congress must step in “before irresponsible and damaging AI systems become entrenched under the banner of ‘national security,’” Faiza Patel and Patrick C. Toomey write. Read more

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Trump’s Ballot Eligibility

The U.S. Supreme Court will soon review the Colorado Supreme Court ruling banning former President Trump from appearing on the state’s Republican primary ballot because of his role in the January 6, 2021, attack on the Capitol. Colorado is among many states whose courts have been asked to weigh in on the issue in recent weeks, with diverging results. In State Court Report, Ciara Torres-Spelliscy explains how differences in state election laws have allowed for this variety and how the Supreme Court might impose a uniform rule across the 50 states. READ MORE

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An Overview of Judicial Ethics

In November, the Supreme Court became the last court in the country to adopt a code of conduct. In a new State Court Report piece, law professor Charles Gardner Geyh examines the history of judicial ethics regulation in both federal and state courts. He highlights the differences in state systems’ approaches to crafting and enforcing these rules and explores the dangers of putting judges in charge of deciding and disciplining judicial misconduct. READ MORE

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Coming Up

VIRTUAL EVENT: Sen. Jeff Merkley on How to Fix the Filibuster

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Wednesday, January 24, 3–4 p.m. ET



Join us for a live virtual event featuring the authors of the new book, Filibustered! How to Fix the Broken Senate and Save America

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, Sen. Jeff Merkley (D-OR) and his former chief of staff Mike Zamore make the case that Congress’s decline began 50 years ago with the introduction of the “no-talk” filibuster and that returning that tool of legislative debate to its original, rarely used form would do much to restore order to the legislature. With moderator Kimberly Atkins Stohr of the Boston Globe, they will discuss the obstacles facing a cohesive, functioning Congress, as well as the surprisingly simple fix that could stem the disorder and restore faith in this vital governing body. RSVP today

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News

Kareem Crayton on redistricting fights in the courts // U.S. NEWS

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Lauren-Brooke Eisen on for-profit migrant detention centers // TIME

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Elizabeth Goitein on Congress’s failure to reform a government spying authority // MOTHER JONES

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Michael Waldman on the case to remove Trump from the ballot // WASHINGTON POST

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Daniel Weiner on the need for state governments to regulate artificial intelligence // NBC NEWS

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