Why State Legislatures?

In June, the Supreme Court announced it would hear Moore v. Harper this fall, with a decision likely coming next year. Right now, right-wing advocates are urging the Supreme Court to adopt an extremist and fringe legal doctrine, called “independent state legislature theory,” that would give state legislatures unchecked authority over election procedures and voting laws, and would grant broad power to gerrymander electoral maps, even if those laws blatantly violated the state's constitution. An extreme ruling from the right-wing Supreme Court could have huge implications for how states run federal elections and ultimately give state lawmakers the power to overturn voters’ choice in presidential elections.

The below explainer digs into their radical legal theory and the potential impacts of SCOTUS’ decison.

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The Independent state Legislature Theory, Explained

From the Brennan Center on Justice (Ethan Herenstein and Thomas Wolf)

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.”

Long releg­ated to the fringe of elec­tion law, the theory will soon be front and center before the Supreme Court, which has agreed to hear a case concern­ing the North Caro­lina congres­sional maps in the fall. If the Supreme Court were to adopt the theory, it would radic­ally change our elec­tions.

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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.

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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.

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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.

Further Reading