‘Independent State Legislature Theory’

There’s a thread that links the partisan gerry­man­der­ing of congres­sional maps in North Caro­lina, attempts to dissolve the Wiscon­sin Elec­tion Commis­sion, and efforts to over­throw the 2020 pres­id­en­tial elec­tion in Pennsylvania and else­where. In each case, the parti­cipants have invoked a dubi­ous inter­pret­a­tion of the Consti­tu­tion called the “inde­pend­ent state legis­lature theory.” Its adop­tion would radic­ally change our elec­tions. 

What is the inde­pend­ent state legis­lature theory?  

The inde­pend­ent state legis­lature theory is a read­ing of the Consti­tu­tion, pushed in recent years by a small group of advoc­ates, that would give state legis­latures wide author­ity to gerry­mander elect­oral maps and pass voter suppres­sion laws. It has even been used as polit­ical cover to try to over­turn elec­tions.

The Consti­tu­tion deleg­ates power to admin­is­ter federal elec­tions to the states, subject to Congres­sional over­ride. There is, however, a disagree­ment about how much power is deleg­ated and to which state actors exactly.

There are two relev­ant clauses. One is the Elec­tions Clause, which reads, “The Times, Places and Manner of hold­ing Elec­tions for Senat­ors and Repres­ent­at­ives, shall be prescribed in each State by the Legis­lature thereof; but the Congress may at any time by Law make or alter such Regu­la­tions.”

The other is the Pres­id­en­tial Elect­ors Clause, which reads, “Each State shall appoint, in such Manner as the Legis­lature thereof may direct, a Number of Elect­ors.”

The dispute hinges on how to under­stand the word “legis­lature.” The long-running under­stand­ing is that it refers to each state’s general lawmak­ing processes, includ­ing all the normal proced­ures and limit­a­tions. So if a state consti­tu­tion subjects legis­la­tion to being blocked by a governor’s veto or citizen refer­en­dum, elec­tion laws can be blocked via the same means. And state courts must ensure that laws for federal elec­tions, like all laws, comply with their state consti­tu­tions.

Proponents of the inde­pend­ent state legis­lature theory reject this tradi­tional read­ing, insist­ing that these clauses give state legis­latures exclus­ive and near-abso­lute power to regu­late federal elec­tions. The result? When it comes to federal elec­tions, legis­lat­ors would be free to viol­ate the state consti­tu­tion and state courts could­n’t stop them.

Extreme versions of the theory would block legis­latures from deleg­at­ing their author­ity to offi­cials like governors, secret­ar­ies of state, or elec­tion commis­sion­ers, who currently play import­ant roles in admin­is­ter­ing elec­tions.

Where did the inde­pend­ent state legis­lature theory come from?

Follow­ing the disputed 2000 elec­tion, Chief Justice William Rehnquist wrote a concur­ring opin­ion in Bush v. Gore propos­ing an embryonic version of the inde­pend­ent state legis­lature theory. He argued that the Consti­tu­tion’s assign­ment of elec­tions author­ity to state legis­latures dimin­ishes state judges’ power to alter “the general coher­ence of the legis­lat­ive scheme.” This approach garnered little scru­tiny outside academia at the time.

Fifteen years later, the idea was exhumed as part of an effort to dismantle Arizon­a’s inde­pend­ent redis­trict­ing commis­sion. Again, the Supreme Court rejec­ted the theory and let the commis­sion continue its work.

Then, after the 2020 elec­tion, Pres­id­ent Trump and his allies used the inde­pend­ent state legis­lature theory as part of their effort to over­turn the results. For a third time, the Supreme Court declined to adopt the theory. But three sitting justices — Clar­ence Thomas, Samuel Alito, and Neil Gorsuch —endorsed it.

Most recently, gerry­man­der­ers in North Caro­lina, Kansas, and beyond, have invoked the inde­pend­ent state legis­lature theory to try to block state courts from review­ing their maps. So far, the Supreme Court has not embraced it.

What are some of the argu­ments for and against the inde­pend­ent state legis­lature theory?

Proponents of the inde­pend­ent state legis­lature theory emphas­ize a narrow read­ing of the word “legis­lature” in the Elec­tions and Elect­ors Clauses. They also point to a couple of Supreme Court cases from the early 20th century ruling that state consti­tu­tions could not take away state legis­latures’ power to ratify federal consti­tu­tional amend­ments under Article V of the U.S. Consti­tu­tion. Adher­ents argue that the same logic must apply to the Elec­tions and Pres­id­en­tial Elect­ors Clauses, even though the Supreme Court has made clear that the rati­fic­a­tion of consti­tu­tional amend­ments under Article V is distinct from the ordin­ary lawmak­ing process used in elec­tion admin­is­tra­tion.

Crit­ics point out several flaws in the inde­pend­ent state legis­lature theory and its justi­fic­a­tions. First, the framers did not trust state legis­latures to run fair elec­tions. They empowered state legis­latures to admin­is­ter federal elec­tions only with great hesit­ancy.

“What led to the appoint­ment of this Conven­tion?” John F. Mercer of Mary­land rhet­or­ic­ally asked his fellow deleg­ates to the 1787 Consti­tu­tional Conven­tion. “The corrup­tion & mutab­il­ity of the Legis­lat­ive Coun­cils of the States.” James Madison, simil­arly suspi­cious of the legis­latures, prepared for the conven­tion by compil­ing a list of ways state legis­lat­ors had failed to act in the national interest.

This mistrust comes through in the Elec­tions Clause, which reserves to Congress the power to over­ride the abuses of power that Madison and his colleagues expec­ted. Given the low regard in which the framers held state legis­latures, it’s diffi­cult to imagine they would want to free those lawmak­ing bodies from the exist­ing constraints of the gubernat­orial veto, the state consti­tu­tion, and judi­cial review.

There is further histor­ical evid­ence against the inde­pend­ent state legis­lature theory. During the found­ing era, most state consti­tu­tions regu­lated federal elec­tions and most state legis­latures shared their elec­tions power with other state actors. These prac­tices, which are incon­sist­ent with the inde­pend­ent state legis­lature theory, were uncon­tro­ver­sial at the time.

Crit­ics also reject the theory’s narrow approach to the Consti­tu­tion’s text. They point out that the term “legis­lature” does­n’t neces­sar­ily mean “exclus­ively the legis­lature.” The First Amend­ment, to draw a paral­lel, liter­ally prohib­its only “Congress” from discrim­in­at­ing on the basis of speech and reli­gion. But we under­stand the amend­ment to apply to the federal govern­ment in its entirety, includ­ing the judi­cial and exec­ut­ive branches. That’s why, to take one example, a judge can’t close off her courtroom to athe­ists.

What would happen if the Supreme Court accep­ted the inde­pend­ent state legis­lature theory?

The inde­pend­ent state legis­lature theory would cause signi­fic­ant disrup­tion by poten­tially nulli­fy­ing state consti­tu­tional provi­sions regard­ing federal elec­tions. State consti­tu­tional bans on gerry­man­der­ing in Flor­ida, Ohio, North Caro­lina, and other states could die, as could inde­pend­ent redis­trict­ing commis­sions in Arizona, Cali­for­nia, Michigan and other states. Other state consti­tu­tional provi­sions — like the right to a secret ballot in many states — could also be wiped out.

Deleg­a­tions of author­ity would also be ques­tion­able, robbing elec­tions commis­sions and secret­ar­ies of state of the power to make decisions, includ­ing in emer­gen­cies. And only federal courts would have the power to review gerry­man­der­ing or voter suppres­sion claims relat­ing to federal elec­tions.

The night­mare scen­ario is that a legis­lature, displeased with how an elec­tion offi­cial on the ground has inter­preted her state’s elec­tion laws, would invoke the theory as a pretext to refuse to certify the results of a pres­id­en­tial elec­tion and instead select its own slate of elect­ors. Indeed, this isn’t far from the plan attemp­ted by Trump allies follow­ing his loss in the 2020 elec­tion. And, accord­ing to former federal judge J. Michael Luttig — a distin­guished conser­vat­ive jurist — the theory is a part of the “Repub­lican blue­print to steal the 2024 elec­tion.”

These high stakes under­score the signi­fic­ance of the chal­lenge the inde­pend­ent state legis­lature theory presents to the courts.

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