WI Voters Alliance v. Pence
Summary
Article II, Section 1, Clause 2 of the US Constitution describes how the US President is to be elected. It reads, in part, that "Each State shall appoint [electors], in such Manner as the Legislature thereof may direct" and goes on to explain the electoral college system. Most understand this to mean that the state legislatures set the rules and the state executive branch conducts the election according to those rules. Some few argue that this sentence requires the state legislatures to certify the election results themselves, that they cannot delegate this responsibility to anyone in the executive branch of the state government, and that their rulings cannot be overruled by anybody in the judicial branch of the state governments. This minority view is called independent state legislature theory (ISL theory, sometimes ISL doctrine).
Erick Kaardal is a lawyer and activist with the Thomas More Society, and a believer in ISL theory. He brought this lawsuit alleging that the 2020 Presidential elections were tainted, as "state legislatures have abrogated their responsibilities through the improper delegation of their authority and when a cabal of state and local executives have partnered with private interests to undermine state statutes." Kaardal argues that the failure to follow election laws in this particular election makes it uniquely necessary for the legislature to weigh in on whether they approve of these election results, and called on the US District Court for the District of Columbia to order state and federal officials not to certify any electoral votes from 5 disputed states until their legislatures had time to meet and vote on whether to approve of the results. Kaardal was careful to note that, "This lawsuit is not about voter fraud. The harm here is the loss of a voter remedy under Article II."
The court immediately announced that a hearing on these issues would be scheduled as soon as plaintiffs served papers to the defendants notifying them of the lawsuit. Two weeks later, Judge James Boasberg denied plaintiffs request for a court order to prevent certification of the election results, citing both the plaintiffs' weak legal argument that "lies somewhere between a willful misreading of the Constitution and fantasy," and that defendants still hadn't been notified that there even was a case, stating "Twelve days later, Plaintiffs have still not provided proof of notice to any Defendant, let alone filed a single proof of service or explained their inability to do so." Judge Boasberg specifies that, "a state appoints electors in such Manner as the Legislature thereof may direct. So if the legislature directs that the Governor, Secretary of State, or other executive-branch entity shall make the certification, that is entirely constitutional. This is precisely what has happened" and, therefore, there was no basis in fact or law for the court to block certification of the election results. Judge Boasberg also critiqued that "they have waited until seven weeks after the election to bring this action and seek a preliminary injunction based on purportedly unconstitutional statutes that have existed for decades."
Proofs of papers served to the defendants started being submitted to the court the next day, Jan 5. But two days later, on Jan 7, Kaardal voluntarily withdrew the lawsuit. Judge Boasberg immediately issued an order giving Kaardal a deadline to submit an argument for why the court shouldn't report him to the Committee on Grievances ("the Committee") for disciplinary action for the unprofessional manner in which he filed the lawsuit as a "symbolic political gesture." On Feb 5, Kaardal made an argument in his defense, trying to demonstrate that efforts at notifying the defendants had begun earlier and make his legal arguments sound like assertions of heartfelt, genuine statements of reasonable belief. Unpersuaded, Judge Boasberg ordered that Kaardal be reported to the Committee for discipline. Kaardal appealed this decision to the 5th Circuit, which ruled on March 22, 2022, that it was not an appealable decision. Kaardal would have to await the Committee's decision before appealing.
I was not able to find any report or record on whether the Committee ever held any meeting regarding whether Kaardal was ever subject to any disciplinary action.
Courts
DC Circuit
David Tatel
Greg Katsas