The U.S. Supreme Court, which is dominated by a radical right-wing majority, is again on the precipice of deciding a case that may be a significant setback free of charge and fair elections and democracy. In its recent term, the high court will hear arguments in Moore v. Harper, a case from North Carolina involving the authority of the state legislature to gerrymander congressional maps for unfair partisan advantage. There’s a robust possibility that the court’s conservative majority will adopt the anti-democratic independent state legislature (ISL) theory, which has been promoted by MAGA extremists claiming that there are virtually no checks and balances on state legislatures in key election matters, even by voters or their state’s own courts. This theory has long been considered to be on the fringes of conservative legal arguments and discredited by the Supreme Court for greater than a century.
The potential fallout of this case is gigantic. If adopted, the unconventional ISL theory could allow state legislatures—and only state legislatures—to control federal elections and congressional map drawing, without regard to a state’s structure and without input from state courts, governors, secretaries of state, election administrators, or voters. Much more disturbing, rogue state legislatures could even attempt to push their recent powers further to find out the outcomes of presidential elections. It’s little wonder that even conservative judges and students reject the harmful ISL theory.
With none meaningful checks on overreach by state legislatures, lots of which have recently enacted laws rooted within the “big lie” aimed toward suppressing voters and sabotaging free and fair elections, the ISL theory could undermine the very foundations of democracy. A Supreme Court ruling embracing the unconventional notion that state legislatures have absolute and sole authority to control federal elections may very well be a large step backward for our multiracial democracy and protections of our cherished freedoms. At a time when democracy is under assault on multiple fronts, adoption of the ISL theory can be a dangerous power grab with potentially calamitous effects.
The case under review: Moore v. Harper
On June 30, 2022, the Supreme Court agreed to listen to Moore v. Harper, which involves a challenge to gerrymandered congressional maps in North Carolina.1 In that case, the North Carolina Supreme Court determined that the maps drawn by the Republican-controlled legislature were crafted for unfair partisan advantage, which violated multiple provisions of the state structure, including the “free and fair elections clause.”2 The state Supreme Court ruled that the maps needs to be redrawn to more fairly represent all North Carolinians. In its decision, the state court followed the legal road map laid out by the U.S. Supreme Court just just a few years earlier in Rucho v. Common Cause, where the high court explicitly ruled that in gerrymandering litigation, “state statutes and state constitutions can provide standards and guidance for state courts to use.”3
In rendering its pro-voter decision, the North Carolina Supreme Court rejected the unconventional argument that the state legislature had the only authority to attract congressional maps without consideration of the state structure and without review by state courts. The court accurately concluded that the ISL theory would upend long-settled precedent and is “repugnant to the sovereignty of states, the authority of state constitutions, and the independence of state courts, and would produce absurd and dangerous consequences.”4
Nonetheless, continuing its radical quest, the North Carolina legislature asked the U.S. Supreme Court to listen to the case and reinstate its maps. The Supreme Court granted certiorari and can hear oral arguments sometime in its upcoming term starting on October 3, with a ruling likely by June 2023.5
The illogical reasoning underpinning the independent state legislature theory
The ISL theory, which is unmoored to existing legal precedent, relies on a nonsensical interpretation of the U.S. Structure claiming that state legislatures have unfettered authority to set rules for federal elections and can’t be countermanded by some other state-based entities, thus eliminating any checks and balances. These other state-based entities include state courts—even when the courts are applying right-to-vote provisions within the state’s structure—in addition to the state executive branch, state and native election officials, state ballot initiatives, or other non-legislative state entities resembling independent redistricting commissions. For instance, the ISL theory could prevent a governor from vetoing an anti-voter bill. And in situations where the legislature may not have addressed a selected policy—resembling voting by mail during a pandemic—or expressly delegated its authority to executive branch officials, election officials or courts may very well be prohibited from filling within the gaps. It will not be a stretch to say that the unconventional ISL theory weakens the very foundations of federalism and judicial review and upends democratic norms.
The idea’s proponents root their argument within the elections clause of the U.S. Structure (Article I, Section 4), which provides each state legislature the authority to set the time, place, and manner for conducting congressional elections, subject to any superseding rules set by Congress.6 Proponents also cite the Structure’s electors clause (Article II, Section 1, Clause 2), which vests each state legislature with the authority to find out the style of how a state chooses its presidential electors.7
ISL theory proponents unconvincingly cite several cases for support, including a 2020 Supreme Court election-related case, which states, “The Structure provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules.”8 As well as, they point to a 1920 Supreme Court case holding that the term “legislature” means a “representative body which made the laws of the people.”9 For reasons discussed below, these arguments fail to justify adoption of the ISL theory because they’re belied by the vast counterweight of the Supreme Court’s precedent, the U.S. Structure, and historical fact.
The acute conservatives pushing the independent state legislature theory
Prior to now few years, extreme conservatives have made a concerted effort to steer courts, including the Supreme Court, to alter course and adopt the unconventional ISL theory.
Donald Trump, aided by now-discredited attorney John Eastman and other allies, made the ISL theory a key constructing block in his conspiracy to pressure several battleground states within the 2020 election to appoint alternate electors and steal the election from President Joe Biden.10 Trump told former Vice President Mike Pence, who oversaw the counting of Electoral College votes, to make use of the ISL theory as a basis to disregard the Electoral College results, but Pence properly refused after determining that he had no constitutional basis to achieve this.11 Offended with Pence’s decision, Trump allegedly encouraged a violent mob to wage an rebellion on the U.S. Capitol on January 6, throughout the counting of the electoral votes. Although this effort was unsuccessful in 2020, the Supreme Court’s upcoming decision in Moore v. Harper could give fresh ammunition to Trump and his team in 2024 in the event that they again attempt to illegally seize the presidency.
This phony ‘doctrine’ is an anti-democratic … power grab masquerading as legal theory.
Sen. Sheldon Whitehouse (D-RI)
Deep-pocketed conservative special interests are funding the well-coordinated effort to make the ISL theory the law of the land.12 The mockingly named Honest Elections Project, a gaggle pushing for restrictive voting laws, has filed multiple friend-of-the-court briefs, including in Moore v. Harper, in an try to influence the Supreme Court.13 That group is reportedly tied to CRC Advisors and the Marble Freedom Trust, organizations that control no less than $1.6 billion in donations and hard-to-trace political spending via Leonard Leo, co-chairman of the conservative Federalist Society. 14 Lately, Leo has helped to orchestrate the Supreme Court’s current extreme composition by recommending conservative nominees and managing massive spending campaigns to verify them.15
Describing how the puzzle pieces fit together on this extremist scheme, Sen. Sheldon Whitehouse (D-RI) stated, “This phony ‘doctrine’ is an anti-democratic … power grab masquerading as legal theory. It was cooked up in a right-wing legal hothouse by political operatives looking to present state legislatures the facility to overturn the desire of American voters in future elections.”16 Whitehouse concluded, “The incontrovertible fact that the Court is even considering a case involving such an extreme idea shows how beholden it’s to the right-wing donors who got so lots of the justices their jobs.”17
Arguments against the independent state legislature theory
The ISL theory is an extreme, unserious concept that may allow partisan legislators to impede a really representative and multiracial democracy. The idea is inconsistent with the U.S. Structure, Supreme Court precedent, and American history, and it upends our federalist system.18
An important factor is whether or not the term “legislature” means “solely the legislature.” It doesn’t, in line with a plethora of students across the ideological spectrum.19 Moderately, the usual interpretation of “legislature” is broader,20 meaning the state’s general lawmaking process, including all the conventional procedures and limits (for instance, a governor’s signature or veto), citizen-led ballot measures, and rulings of state courts, which regularly are based on state constitutions. Among the many vast array of entities supporting this well-settled view is the bipartisan Conference of Chief Justices, an esteemed group representing the highest judges in all 50 states.21
Proponents of the acute ISL theory can point to no convincing modern precedent that may allow state legislatures to control elections and map drawing completely unchecked, a result that the nation’s founders wouldn’t have endorsed.22 As longtime voting rights litigator Marc Elias observed, with legal theories to disclaim the precise to vote and to sabotage valid elections becoming more mainstream, it’s critically necessary that judges remain capable of protect people’s constitutional rights, interpret laws, put limits on hyperpartisan politicians who too often change the principles to favor their political party, and strengthen democracy.23
A fundamental point stays that even lawyers who’re respected inside conservative circles have criticized the ISL theory and warned of the potential anti-democratic fallout. For instance, former federal circuit court judge and conservative stalwart Michael Luttig summed up the stakes starkly, writing that extremists “can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine.”24 The Cato Institute, a right-leaning think tank co-founded and funded by the Koch Brothers, published analyses that concluded that the ISL theory relies on a “long-rejected” interpretation of the Structure and would disrupt “settled law.”25 Furthermore, in a July 2022 hearing concerning the ISL theory within the U.S. House of Representatives’ Committee on House Administration, no Republican member voiced explicit support for the ISL theory, and one member—Rep. Barry Loudermilk (R-GA)—specifically said that “state constitutions are a correct check on state legislatures.”26
State constitutions are a correct check on state legislatures.
Rep. Barry Loudermilk (R-GA)
Up to now, although the Supreme Court has not ruled squarely on the boundaries of the ISL theory, it has strongly and repeatedly rejected a sweeping interpretation that may assign a literal reading to the word “legislature.”27 Within the high court’s prior decisions, the operative constitutional provisions have been understood as allowing state legislatures to set the essential rules for conducting federal elections, that are then subject to normal state processes and which include other government components, resembling election administrators that prescribe the finer details for administering the vote or state courts that interpret the meaning of state election rules within the context of state constitutions.28 This broader interpretation makes eminent sense in a functioning democracy with checks and balances.
In actual fact, as recently as 2015, a 5-4 majority of the Supreme Court struck a blow to the ISL theory in a case involving Arizona’s redistricting commission.29 In that case, the high court concluded that the word “legislature” needs to be read broadly “in accordance with the State’s prescriptions for lawmaking, which can include the referendum and the Governor’s veto.”30 4 years later, in a radical decision, the court’s conservative majority decided in Rucho v. Common Cause that partisan gerrymandering is beyond the reach of the federal courts.31 But even in that anti-democratic case, Chief Justice John Roberts, writing for almost all, concluded that even when the federal courts cannot intervene, state courts can apply state constitutions and statutes to constrain partisan gerrymandering and wrote approvingly of ballot measures creating independent redistricting commissions in Colorado and Michigan.32
It is evident that if the Supreme Court adopts the ISL theory, it’s going to be a significant reversal of precedent. But up to now few years, the Supreme Court’s composition has markedly modified, and activist conservatives now enjoy a 6-3 majority. CAP has written extensively concerning the Supreme Court’s recent judicial overreach under this recent majority, noting how its decisions have “undermined long-standing precedents, laws, and constitutional rights”33 and have “claw[ed] back the rights of Americans in a way unseen in modern times.”34 Within the highest-profile and most flagrant example, the acute faction of the Supreme Court threw out long-standing precedent in its decision to overrule Roe v. Wade, denying the constitutional right to abortion.35
Where do the present justices stand in the case of ISL theory? 4 justices—Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh—have expressed various levels of support for the ISL theory in recent opinions.36 Their support echoes an argument that former Chief Justice William Rehnquist, joined by Justice Thomas and former Justice Antonin Scalia, made within the 2000 Bush v. Gore case.37 Current Chief Justice Roberts, while not agreeing it was appropriate to use the ISL theory in pre-election cases throughout the 2020 election cycle,38 was the lead dissenter within the 2015 Arizona case—where Roberts advanced a rather narrower version of the ISL theory. Roberts concluded that state legislatures can’t be cut out of setting state election-related rules for federal candidates. He was joined in his dissent by Justices Thomas and Alito. It might not be surprising if the most recent conservative justice, Amy Coney Barrett, sides with the court’s conservative wing, providing a sixth potential vote for the ISL theory. Thus, within the words of Rick Hasen, professor on the UCLA School of Law and director of the Safeguarding Democracy Project, the ISL theory “hangs on the market, as a ticking time bomb, waiting to go off.”39
The harmful effects of the independent state legislature theory
If the Supreme Court abandons precedent and adopts the unconventional ISL theory, state legislatures would have sweeping recent powers to be the only arbiters of laws governing elections and gerrymandering and will thwart the precise of Americans to elect the leaders of their alternative. With no less than 17 states recently passing recent laws along partisan lines to suppress voters of color and sabotage elections,40 the consequences may very well be profoundly unfair and anti-democratic. Election deniers and partisan lawmakers could have an unobstructed path to rigging election results and weakening the long run of American democracy.
An unlimited array of harmful consequences could flow from the ISL theory. These include:
- Stopping state courts from protecting voters: Extremist legislatures could subvert elections because state courts can be constrained in limiting them from unconstitutional voter suppression, unfair vote counting, and other types of election sabotage. Courts could have little authority to act in emergency circumstances to guard free and fair elections, resembling during natural disasters or pandemics.
- Ending protections against gerrymandering: Partisan legislators could have free reign to attract congressional districts to dilute voters within the opposing party. State constitutional bans on gerrymandering in states resembling Florida, Ohio, and North Carolina may very well be ignored, and independent redistricting commissions in states resembling Arizona, California, and Michigan may very well be nullified.
- Undoing pro-voter election rules enshrined in state constitutions, achieved via ballot measures, or implemented through administrative rules: These could include provisions resembling the precise to vote in free and fair elections, early voting, or same-day voter registration.
- Curtailing the discretionary authority of state and native election officials, including secretaries of state, particularly in cases where state voting laws don’t address granular policy details: For instance, if a secretary of state determines that state law allows them discretion to order the counting of certain mail ballots, a partisan legislature could stop them if the legislature had circuitously granted discretion over that specific matter.
- Stripping governors of their long-held ability to veto anti-democratic laws or recent maps passed by partisan legislatures, even where such laws violate the state’s structure: In states where the legislature’s majority and governor are from opposite political parties, this might tip the scales and ignore voters’ preferences.
- Making election administration extremely chaotic: That’s since the ISL theory wouldn’t have any effect on the principles governing state elections. With a dual system of election laws, administrators and voters would wish to navigate potentially conflicting sets of rules for federal and state elections on the identical election day.41
- Vastly diminishing the precise of on a regular basis people, including marginalized communities, to challenge unfair election-related laws in state court: As a consequence, some people may even lose further faith within the political system and might stop voting.
- Placing Congress within the untenable position of being the last constitutional bulwark against rogue or extreme state legislatures uncommitted to fundamental democratic principles: Although Congress could theoretically pass baseline standards governing federal elections and binding state legislatures, the repeated failure of such federal laws to pass suggests that Congress will not be counted on to act.
Many professional-democracy advocates are concerned that if pushed to its extreme, the ISL theory could persuade a rogue state legislature to make your mind up that it has ultimate control to refuse to certify the accurate results of a presidential election.42 On this scenario, the legislature would disregard the desire of the people and as a substitute appoint its own slate of electors. In actual fact, as noted earlier, Trump and his extremist allies essentially tried this route within the aftermath of the 2020 election, pursuant to John Eastman’s unconstitutional scheme.43
Yet even probably the most extreme version of the ISL theory shouldn’t allow this. That’s since the plain text of the Structure and clear, long-standing precedent say that legislatures cannot simply ignore the favored vote and select recent presidential electors after electors are chosen on election day.44 Furthermore, “the state legislature–like several institution of state government–can be certain by Bush v. Gore and related Fourteenth Amendment precedents that require all ballots solid in an election to be treated consistently with ‘equal protection’ and ‘due process’ principles.”45
Nonetheless, partisan legislatures have the constitutional authority to alter the “manner” of presidential elections before election day by giving themselves, as a substitute of the voters, the flexibility to pick out electors in order that they may be the final word decision-makers over the election results.46 If legislatures exercised this selection and decided that they, as a substitute of the people, would choose presidential electors, it could shatter democratic norms.
Conclusion
If the Supreme Court goals to advertise a healthy democracy and restore Americans’ trust within the high court, it must not rule favorably on the unconventional ISL theory when it decides Moore v. Harper. Free and fair elections—and probably the most basic principle that partisan actors cannot overrule: the desire of the voters—could suffer an infinite blow if the Supreme Court gives state legislatures unfettered authority to set election rules for federal candidates. Intended and unintended consequences would ensue for many years, further destabilizing America’s already weakened democracy. The justices must as a substitute respect clear precedent and reject the blatant power grab that underlies the unconventional independent state legislature theory.