Independent State Legislature Theory

A theory floated in Bush v Gore could radically change American elections.

Atlantic staff writer Adam Server asks, “Is Democracy Constitutional?” It’s a continuation of a discussion we’ve had recently about a Republican Party so desperate to cling to power that it’s seemingly willing to take any step, from disenfranchising voters to stealing elections to even violence.

Every American child in public school learns that the U.S. political system is one of checks and balances, in which the judicial, executive, and legislative branches constrain one another to ensure that no one branch of government exercises too much power. One pending case before the Supreme Court asks: What if they didn’t?

In Moore v. Harper, North Carolina Republicans are arguing that no other state body, including the state supreme court, has the power to restrict the legislature’s ability to set voting rules—specifically ones allowing legislators to gerrymander the state, in defiance of a ruling by the state supreme court finding that their plan violated the state constitutional amendment guaranteeing the right to vote. This belief is based on a crank legal premise called the “independent-state-legislature theory.”

The idea has been floating around a bit. Indeed, it was a partial basis for the controversial and disjointed ruling in Bush v Gore that settled the 2000 election.

The justification for this theory is that the U.S. Constitution’s text about state legislatures setting election rules refers not simply to passing laws or adopting state-constitutional provisions regarding voting, but to an authority to decide such matters unilaterally. State legislatures themselves pass laws and participate in the process of adopting constitutional amendments; it makes no sense to argue, as the independent-state-legislature theory does, that such bodies are not bound by rules they themselves have set. Nevertheless, this idea is the kind of obtuse, context-free pedantry that malicious lawyers adore. As the election-law expert Rick Hasen writes, in its most extreme interpretation, this theory would mean that a state legislature could simply overturn federal election results it did not like based on its perception, no matter how unfounded, that the rules were violated. Hypothetically, the Supreme Court could check such abuse of power; its capture by the Republican Party means that, in practice, it might not.

That’s obviously as scary as it is nutty.

“We have run elections the same way for 230 years in this country. And under that 230-year history, the independent-state-legislature hearing has not been the law,” Thomas Wolf, an election-law expert with the Brennan Center, told me. “It’s mainly been moving forward under gas that’s been provided almost entirely by just a few conservative justices on the Supreme Court, effectively citing themselves for the proposition.”

So, it doesn’t help that most of the most vocal opponents of the theory are partisans. The Brennan Center does good work—I’ve assigned several of their short papers to our students—but they’re very much a liberal/Democratic outfit. And even some of the ostensibly scholarly articles on the matter are so over-the-top in their vitriol that they’re not likely to persuade anyone of their academic detachment.

Still, while the theory has an obvious basis, it really doesn’t stand up to much scrutiny. Yes, the Constitution does indeed place authority over elections explicitly in the hands of legislatures, both at the state and federal level. But, rather obviously, legislatures in our system can’t legislate independently, as they require the chief executive’s signature or a supermajority override. And, to the extent that legislatures are obligated to act within the constraints of their respective constitutions, it stands to reason that the judiciary has a role in adjudicating whether they have done so. Indeed, the Supreme Court exercised such a role in Bush v Gore, notwithstanding Article I of the US Constitution explicitly placing the power to settle federal election disputes in the US Congress.

You’d think that the theory’s recent vintage would make it anathema to self-identified originalists, but among most of the justices this philosophy is implemented with scarcely more rigor than one might put into scanning Wikipedia to win an argument with a stranger online. More disturbing, the popularity of the theory among conservative legal elites is further indication of their commitment to an idea of “democracy” in which the Republican Party is simply not allowed to lose, and of their desire to alter the system to ensure that it cannot.

Of course, Democratic-controlled legislatures would have the same authority. But, yes, there is a trend.

The independent-state-legislature theory has drawn a great deal of attention for its most radical potential application, the possibility of a legislature voting to throw out its state’s presidential-election results and appointing electors to favor the candidate of its choice. This is what Donald Trump tried to get Republican-controlled states to do after he lost in 2020. But even in the narrower example before the Supreme Court, the adoption of this argument would allow state legislatures a dangerous level of influence over who wins federal office. This is such a mockery of the very idea of representative democracy that you would think it would be dismissed out of hand: If you don’t like how things are, vote. But also, the people in power get to decide whether your vote counts, and virtually no one can check them.

Well, when you put it that way . . . .

This outcome in Moore v. Harper would not affect state and local contests, but in large part Republicans have already succeeded in election-proofing legislatures in states they control by drawing district lines to favor Republican-leaning constituencies. In closely divided states such as Wisconsin, gerrymandering and geographic polarization mean that the GOP can win some two-thirds of state legislative seats with less than half of the statewide vote.

Other states have made progress in trying to end partisan gerrymandering, through constitutional amendments or state redistricting commissions. But if the Supreme Court accepts the independent-state-legislature theory, that progress would be entirely wiped out. In the 2019 case Rucho v. Common Cause, the Supreme Court said that federal courts couldn’t review partisan gerrymandering, but that that was fine because state courts could, based on provisions in state constitutions. Many states have constitutional amendments protecting the right to vote. But those would be irrelevant if state courts had no power to review a legislature that violated that right.

“The Court said, ‘Never fear. If you want to address partisan gerrymandering, go to state courts, because state constitutions provide people with an avenue forward,'” Wolf told me. “If the Court then turns around three or four years later and says, ‘Actually, state constitutions don’t constrain legislatures and their federal-election lawmaking,’ then the promise of Rucho was a false promise.”

Yeah . . .

The sheer number of catch-22s involved here can be confusing. Federal courts cannot review partisan gerrymandering, so the people should turn to state courts, which also can’t. If you want to protect voting rights, you must do it by federal legislation, except the Supreme Court will decide that that legislation is unconstitutional, because it violates imaginary principles unmentioned in the Constitution. Political questions must be decided by the people, except if those in power conclude that they don’t like how the people might decide them.

This can all be reconciled given the Republican Party’s de facto position that elections are by definition illegitimate if the GOP does not win them, and that the Democratic Party’s constituencies are less American and therefore their votes should count for less. Counter-majoritarian mechanisms such as the Senate and the Electoral College have already allowed the GOP to win presidential elections and gain control of the Supreme Court without a majority of voters. The adoption of the independent-state-legislature theory would strengthen the party’s ambition to lock itself in power indefinitely regardless of how the electorate votes.

Now, look, this is a bit cherry-picked. The same rationale that allowed a Republican gerrymandering to stand in North Carolina let Democratic gerrymandering stand in Maryland. Presumably, legislatures in Democratic-controlled states are no more or less “independent” than in Republican-controlled states.

But Democrats have, at least in recent years, operated on the principle that the way to advantage themselves in election is to make it easier for relatively marginalized people to vote. They believe, probably correctly, that expanding the franchise and lowering barriers to registering and casting a ballot will redound to their benefit. Republicans are more focused on making sure that only the right people vote.

With the election lies he used to justify an attempt to overthrow the government, Trump gave voice to the idea that Democratic voters are inherently illegitimate. But Republican elites had been scheming for years to implement voting restrictions that would give conservative constituencies more power, and no institution has been a greater ally to states looking to disenfranchise their constituents than the Roberts Court. The Supreme Court’s right-wing majority has repeatedly twisted its own arguments and the text of the Constitution into knots in order to approve of Republican voting restrictions, while striking down any liberal efforts to defend the right to vote that it disapproves of.

Again, I think Serwer is more vitriolic than analytical here. This, actually, strikes me as a better description of what’s happening:

“Democratic backsliding in the U.S. has followed a pretty clear historical pattern: The Supreme Court directly or indirectly enables state legislatures to restrict civil and political rights, and Congress decides whether to get its act together to stop them—and it often doesn’t,” Jake Grumbach, the author of Laboratories Against Democracy, told me. “The filibuster makes this pattern even more stark, since state legislatures don’t tend to have supermajority requirements to weaken democracy, but Congress, the only institution to stop state legislatures from backsliding, now requires supermajorities to pass policy to protect democracy.”

The Supreme Court has allowed state legislatures broad leeway in framing how they’re going to conduct their elections. Because Republican states have been working more aggressively to make voting harder while Democrats have been trying to make it easier, we have something of an imbalance. The Court’s rulings invite Congress to make rules to fix this imbalance but, for reasons we’ve Grumbach alludes to and we’ve beaten to death here, the Republican goal of doing nothing is a hell of a lot easier to achieve than the Democratic goal of doing something.

But, alas, this isn’t implausible:

And, of course, if by some miracle Congress acts, the Roberts Court can simply invalidate that legislation, based on whatever esoteric right-wing scheme happens to be in fashion among conservative lawyers.

Democrats have been on a losing streak in a Court that’s dominated by Republican appointees. Add to that the fact that the three most recent additions were nominated by a President who lost the popular vote and that one of those seats was vacant only because Republicans refused to hold hearings on a Democratic appointee, it’s really hard to Democrats to accept the rulings as motivated by anything other than partisan politics. At some point, whether the Republican-appointed Justices really believe the theories used to defend their rulings just doesn’t matter.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. JohnSF says:

    Well.
    That’s a bit like taking the British theory of the Absolute Sovereignty of Crown in Parliament, chucking out the residual “Crown” bit and applying it to a state legislature.

    I suppose it’s the reductio ad absurdam of state’s rights theorist: that the states of the USA are ultimately sovereign in their own right.

    I thought that concept had been knocked on the head by the Civil War and the defeat of the secessionary states, the “legitimacy” claims of which were based on such legalisms. But seems not.

    Hey ho, reset to 1861.

    A warning from other cases of legislative supremacy:
    It can, absent strongly policed constitutional guardrails, tend eventually to engross executive power as well, reducing extra-legislative executives to residual figureheads.

    And then, from an executive essentially within the legislature (a common model in Parliamentary systems), to the said executive treating the legislature itself as a mere electoral college, and engrossing power into the ruling party, on the grounds of “the mandate of the people” for an indirect executive.

    See the recent lunatic claims in the UK in some (daft but dangerous) Conservative/Populist circles for a “Prime Ministerial” mandate that is superior to Parliament, Crown and Courts.

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  2. Tony W says:

    Four of our nine justices were nominated by presidents who lost the popular vote, and two more were nominated by GWB in his second term, which you could argue he would not have won without incumbency.

    The SCOTUS is no better than the Wisconsin legislature you describe.

    It’s no wonder that many Americans see the SCOTUS as illegitimate.

    Maybe the “radical left” is correct and we need to expand the Supreme Court?

    I would personally prefer that the 13 Circuits rotate justices in and out for 5-year stints at SCOTUS – which would still allow for Federal judges to be a lifetime appointment, with the chance that you’d get 5 years in the Supreme Court.

    In any event, we need a legitimate check to whatever radical ideas the Republicans come up with. They are scheming left and right to figure out how to win elections.

    The one idea Republicans will not consider is to adopt more popular policies that will appeal to more people.

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  3. James Joyner says:

    @Tony W:

    Four of our nine justices were nominated by presidents who lost the popular vote, and two more were nominated by GWB in his second term, which you could argue he would not have won without incumbency.

    That’s not right.

    There are 9 Justices:
    Clarence Thoma – GHW Bush
    John Roberts – GW Bush 2nd term
    Samuel Alito – GW Bush 2nd term
    Sonia Sotomayor – Obama
    Elena Kagan – Obama
    Neil Gorsuch – Trump
    Brett Kavanaugh – Trump
    Amy Coney Barrett – Trump
    Ketanji Brown Jackson – Biden

    So, we have three appointees from a minority POTUS (Trump) and the two Bush appointees from his second, majority win, term. Until the Trump era, nobody at all was questioning their legitimacy.

  4. BugManDan says:

    @James Joyner: That is only 8. Forgot Thomas.

  5. Tony W says:

    @James Joyner: Thanks, I don’t know where I got my number

  6. James Joyner says:

    @BugManDan: Thanks! I was using Wikipedia and didn’t scroll up high enough, since Thomas was appointed before several Justices who have already retired.

    @Tony W: I suspect you were double-counting the GW Bush appointees.

  7. steve says:

    In my state we have a guy running for governor (Mastriani) who thinks that some combination of the legislature and/or governor should be able to overturn the results of any election they dont like, regardless of lack of evidence to do so. That should go to the Supreme Court. I really dont know how this Court would decide this. I think there is a fair chance that they decide they should defer to the states. I think if that happens it might be time to think about packing the courts if able but that is only temporary relief. No idea where we would go from there.

    Steve

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  8. Scott F. says:

    But Democrats have, at least in recent years, operated on the principle that the way to advantage themselves in election is to make it easier for relatively marginalized people to vote. They believe, probably correctly, that expanding the franchise and lowering barriers to registering and casting a ballot will redound to their benefit. Republicans are more focused on making sure that only the right people vote.

    Because Republican states have been working more aggressively to make voting harder while Democrats have been trying to make it easier, we have something of an imbalance.

    Dr. Joyner, I believe you are downplaying the dark asymmetry of this imbalance, at least from a pro-democracy perspective. You are implying it is merely partisan, but it is more troublesome than that.

    Making it easier for people to vote, marginalized people or otherwise, is an democratic act – it deliberately binds the party to the popular will of the people. Making it harder to people to vote or, as you more accurate state it, making it harder for the “wrong” people to vote is inescapably anti-democratic. If the US government is to derive its just powers from the consent of the governed, then “advantage” and “imbalance” are terms too benign to describe the respective parties current objectives regarding the franchise.

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  9. Slugger says:

    Not that long ago “states’ rights” were used to formally exclude a substantial portion of the populace from voting. Now we are tolerating the erection of informal barriers such as limited polling places in certain cities. States are political constructs. They place the reins of power in certain hands. This talk of sovereignty means that some people will have clout without review.

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  10. James Joyner says:

    @Scott F.:

    You are implying it is merely partisan, but it is more troublesome than that.

    Making it easier for people to vote, marginalized people or otherwise, is an democratic act – it deliberately binds the party to the popular will of the people.

    I don’t disagree. I’m focusing, though, on motivations as much as outcomes. The parties are, first and foremost, taking positions that they believe enhance their chance of getting elected. If Republicans believed mail-in balloting benefitted them, on the grounds that older people are less mobile and rural people live further from polling places, their policy position would be 180-out from where it is now. They have simply calculated that their advantage is to make it harder because it depresses Democratic turnout more than Republican and that Republicans are more likely to be willing to go the extra mile.

    The impact, as you note, is sinister regardless.

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  11. Jay L Gischer says:

    How can I possibly trust this court when at least two of its justices blatantly lied during confirmation – about material related to their job. Thomas also lied about his personal life regarding Anita Hill.

    Meanwhile, Alito’s opinion seems like a religious tract with all references to God redacted after the fact. I’m not an irreligious person. I could have the debate about abortion with Alito on religious grounds, but that’s not what’s happening. He’s cloaking his beliefs behind a smokescreen, and thus privileging them. Which is not supposed to happen. Again, lack of integrity.

    How could I trust these guys to do the right thing?

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  12. SC_Birdflyte says:

    @JohnSF: Actually, the arguments put forth in favor of the proposition that state legislatures are inherently sovereign in their deliberations would warm the cockles of John C. Calhoun’s white supremacist heart. The late Richard Hofstadter had a profile of Calhoun in his book The American Political Tradition in which he called Calhoun “Marx of the Master Class.”

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  13. Jay L Gischer says:

    By the way the theories about “sovereign state legislatures” make about as much sense as the “sovereign citizen” theories you sometimes hear about.

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  14. JohnSF says:

    @SC_Birdflyte:

    Richard Hofstadter … The American Political Tradition

    That’s a book that’s been on my “need to read” list for years.
    So many books, so little time. 🙁
    Really must get round to it; thanks for the reminder.

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  15. Just nutha ignint cracker says:

    @Slugger:

    This talk of sovereignty means that some people will have clout without review.

    “The people who cast the ballots decide nothing. The people who count the ballots decide everything.” [And I would add who decide who gets to cast a ballot. Pretty much the same thing.]

    Some famous guy from the mid-20th century said that. Can’t remember who.

  16. Just nutha ignint cracker says:

    @Jay L Gischer: “How could I trust these guys to do the right thing?”

    You can’t. Still, the nations leaders in the two political parties decided long ago that partisanship was going to rule in who got on the Federal Courts, especially the Supremes. The GOP simply played more aggressively and have won big time.

  17. Jay L Gischer says:

    @Just nutha ignint cracker: I dunno. I didn’t feel this way about Rehnquist, O’Connor, Souter, Kennedy, or John Paul Stevens, all of whom were Republican nominees. Scalia was a mixed bag. Politically reliable, but pretty good on some other less political issues.

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  18. Just nutha says:

    @Jay L Gischer: Yeah, I get what you’re saying, but it took conservatives decades to get the practice down while the Dems spent their efforts on being amenable.

  19. Hal_10000 says:

    So if I understand this theory correctly, a state could — for example — strip the franchise from black people and no governor could veto and no court could overturn?

    Rubbish.

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