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.