What is "Independent State Legislature Theory" and Should We Care?
Watch How SCOTUS Rules in its Next Term
“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,….”
—Article I, Section 4, U.S. Constitution
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,….”
—Article II, Section 1, U.S. Constitution
These innocuous-sounding clauses from the United States Constitution provide some vague guidance as to how elections are to be held in the United States, the latter clause dealing with electing the President. How strictly one reads these clauses – especially the term “Legislature” – has many folks deeply concerned for the future of American democracy.
As its term neared the end, the U.S. Supreme Court announced that it would hear a lawsuit from North Carolina when it convenes again in the fall. In Moore v. Harper, the North Carolina Supreme Court stepped in and blocked the implementation of a severely gerrymandered statewide congressional district map drawn by the Republican-controlled state General Assembly. The General Assembly appealed the state court’s decision, claiming that it was well within its right to draw internal state districts. (At the time, the state General Assembly asked the U.S. Supreme Court to intercede, but SCOTUS did not do so.)
Throughout the last decade, rulings from the U.S. Supreme Court have interpreted the Constitution’s election clauses broadly, supporting the idea of a legislative “process” that includes an Executive (the Governor) who works in tandem with a state’s legislative branch and a judicial branch (the state courts) that interprets state election law [1] . Indeed, in 2019 all Supreme Court justices – including the conservatives Thomas, Alito, Gorsuch and Kavanaugh – envisioned some role for state courts in interpreting state election law [2]. Three years ago, Chief Justice John Roberts wrote in a 5-4 decision that state courts could intervene in cases of severe gerrymandering [3].
At the heart of the North Carolina General Assembly’s argument is “independent state legislature theory,” a very narrow reading of the U.S. Constitution’s election-related clauses that posits that a state’s legislature is a standalone entity, one that stands apart from the governing “infrastructure” of a state (i.e., the Governor or the courts).
Legal experts – and those who pay attention to how we conduct our elections – are alarmed because the case’s outcome could severely restrict the ability of state courts to rein in egregious partisan manipulation, such as gerrymandering. Another fear is that – if allowed – uncontrolled state legislatures could simply ignore the voters’ will and award an election (and electors in a Presidential race) to the candidate they back.
What concerns election watchers even more are the recent hints dropped by the conservative justices comprising the current U.S. Supreme Court. During the election disputes surrounding the 2020 Presidential election, Justices Thomas, Alito, Gorsuch and Kavanaugh expressed support for the view that state courts could not usurp the role of the legislature in prescribing rules for federal elections [2].
Moreover, when SCOTUS refused to intercede on an emergency basis in the North Carolina case earlier this year, three of the Court’s conservative justices said they were skeptical that state courts had a role in refereeing the rules for federal elections, and a fourth said the issue was ripe for consideration. Wrote Justice Samuel Alito [2]:
“If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections. I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.”
Should we care? Anecdotally, this author has learned that the “independent state legislature theory” is a crazy, hare-brained, bizarre view that ought to be easily dismissed. The theory sits “on the fringes of American jurisprudence, so far out there that its few proponents have struggled to dredge up even the barest scraps of case law and history to substantiate it.” [4]
But the recent noises made by the conservatives on SCOTUS give this author great pause, especially in the context of their horrendous rulings at the end of their 2021-22 term. The dangers of this theory cannot be overstated – allowing a partisan and biased state legislature to impose its will unchecked could result in:
Extreme gerrymandering
Manipulating voter qualifications, vote-by-mail, and other voting-related processes
The certification of a false slate of Presidential electors
Dismissing the role of a state’s Supreme Court to interpret state law
Ignoring a state’s constitution
Interfering in the post-election tabulation of ballots
In short, election subversion to an extent never seen before.
Yes, we need to care about “independent state legislature theory,” no matter how farfetched legal scholars tell us it is. The ultra-conservative SCOTUS appears to be in the process of remaking the American republic into a minoritarian-ruled autocracy in which sensible — and popular — laws governing women’s reproductive freedom, slowing climate change, and limiting guns in public all fall by the wayside. Tilting state election laws because of an extremely myopic interpretation of the U.S. Constitution would hasten this slide.
If we don’t care, we may wake up some day and find ourselves in The Handmaid’s Tale Republic of Gilead.
[1] Rick Hasen, “Breaking and Analysis: Supreme Court Will Hear Moore v. Harper, the Independent State Legislature Theory Case from North Carolina; This Case Could Severely Curtail the Ability of State Courts to Protect Voting Rights and Stop Partisan Gerrymandering,” Election Law Blog, June 30, 2022.
[2] Robert Barnes, “Supreme Court to Review State Legislatures’ Power in Federal Elections,” The Washington Post, June 30, 2022.
[3] Editorial Board, “The Supreme Court’s Next Move Could Fundamentally Change Our Democracy,” The Washington Post, July 5, 2022.
[4] Thomas Wolf and Ethan Herenstein, “The Case That Could Blow Up American Election Law,” The Atlantic, July 11, 2022.