The dangerous legal theory in front of the Supreme Court

Independent state legislature theory is a far-reaching threat to American democracy

This piece is written by Milan the Intern, not the usual Matt-post.

On June 30, the Supreme Court announced that it would hear Moore v. Harper, a case about redistricting in North Carolina. The question in Moore is whether the North Carolina Supreme Court has the authority to redraw the state’s congressional maps.

For context: following the 2020 Census, North Carolina gained a House seat and had to redraw its congressional districts. In 2021, the General Assembly passed a map that would have given the GOP an edge in 10 of the state’s 14 congressional districts. On March 21, 2021, the state Supreme Court voted 4-3 on party lines to reject the legislature’s map on the grounds that it violated anti-gerrymandering provisions of the North Carolina constitution by giving an unfair advantage to Republicans and put a new, temporary map in place for the midterms.

The legislature sued, arguing that the state Supreme Court overstepped its mandate in redrawing the maps under a proposed legal doctrine known as the “independent state legislature theory.” The idea that state courts cannot enforce their own constitutions when it comes to election law is ahistorical, repudiated by precedent, and violates the spirit of federalism. The Court ought to firmly reject it.

Independent state legislature theory, explained

So what is the independent state legislature theory (or ISL for short)? The idea is that state legislatures have sole authority over federal election-related matters.

ISL fans cite two parts of the United States Constitution in support of their position. The first is Article I, Section 4, Clause 1, referred to as the Elections Clause, which reads as follows (emphasis added):

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, except as to the Places of chusing Senators.

The second section is Article II, Section 1, Clause 2 — the Electors Clause — which reads as follows (again, emphasis added):

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Proponents of ISL argue that the phrase “the Legislature thereof” means strictly the state legislature — not the governor, not an independent commission, not the state judiciary — gets to decide how elections are run and how presidential electors are appointed, no ifs, ands, or buts. Furthermore, the argument goes that in the event of a dispute between the legislature’s actions and the state constitution, the results of a ballot initiative, state courts, or other elected officials, the matter is to be resolved by federal courts in favor of the legislature.

ISL is ahistorical and incompatible with both federalism and precedent

In a recent article published in The Supreme Court Review, law professors Akhil Reed Amar of Yale and Vikram David Amar¹ of the University of Illinois levied three main criticisms of ISL.

First, the professors object on originalist grounds, arguing that ISL’s reading of the Constitution is ahistorical. After all, what does “legislature” mean, exactly? Well, the easy answer is “a body that passes legislation,” but that definition raises further questions. Does it include a governor’s legislative veto? What about an independent commission created to handle redistricting, or a successful ballot initiative to change election laws? And at the Founding, was a legislature considered to be constrained and limited by the state constitution, or was it an independent body separate and above the charter, as in the British system of parliamentary supremacy?

To quote the Professors Amar (emphasis theirs):

In fact, the public meaning of state “legislature” was clear and well accepted at the Founding: A state’s “legislature” was not just an entity created to represent the people; it was an entity created and constrained by the state constitution.

They note that the federal Constitution was based on the six state constitutions in place at the time, several of which allowed for bodies other than the legislature to regulate elections. Of those state constitutions, one (Delaware) explicitly regulated elections for federal office, and two others (Massachusetts and New York) provided for gubernatorial review and veto of election-related legislation.

The Supremacy Clause of the U.S. Constitution (Article VI, Clause 2) is another argument against the idea that state legislatures are not bound by state constitutions.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

The key thing here is that the order in which each type of law is listed matters, with those mentioned first having priority over those listed next — for example, the Constitution limits what kind of laws Congress may pass, and federal laws may limit what kind of laws states may pass — an interpretation supported by Chief Justice John Marshall in Marbury v. Madison.

The second argument is that ISL is incompatible with Supreme Court precedent, both past and recent. In 1916, the Court heard Ohio ex rel. Davis v. Hildebrant, a case concerning congressional redistricting in the Buckeye State. The Ohio constitution vested legislative power in the General Assembly as well as the referendum process, and voters chose to overturn the redistricting bill passed by the legislature. A different case, Smiley v. Holm (1932), involved the governor of Minnesota vetoing a new congressional map passed by both houses of the state legislature, which then sued on ISL grounds, arguing that the Elections Clause did not require the governor’s signature to approve the new map. In both cases, the Court ruled against ISL arguments, greenlighting the involvement of gubernatorial vetos and ballot referendums in congressional redistricting.

In 2015, the Supreme Court heard Arizona State Legislature v. Arizona Independent Redistricting Commission. In 2000, Arizona voters passed Prop 106, a constitutional amendment that created the Arizona Independent Redistricting Commission (AIRC) to prevent gerrymandering. The legislature sued, arguing that the creation of the AIRC violated the Elections Clause by taking away their power to redraw the congressional maps. In a 5-4 ruling, the Court upheld the creation of the AIRC, with the late Justice Ginsburg citing Hildebrant and Smiley in her majority opinion. Chief Justice Roberts dissented, joined by Alito, Scalia, and Thomas, arguing that the word “legislature” in the Elections Clause ought to be defined narrowly, as ISL argues.

In Rucho v. Common Cause (2019), a case where petitioners asked the Supreme Court to overturn North Carolina’s 2016 congressional map as an unconstitutional gerrymander, the majority ruled that partisan gerrymandering was a political question beyond the reach of federal courts. Robert’s majority opinion — joined by the other four conservatives who dissented in AIRC — explicitly noted that state supreme courts could rule on redistricting cases in direct contravention of ISL.

Finally, the Amars argue that ISL is anti-federalism. The landmark case Erie Railroad Co. v. Tompkins (1932) holds that state, not federal, courts are the final arbiters and interpreters of state law and state constitutions. While state courts certainly may issue bad decisions and misinterpret state legislation, there’s no reason to believe that they are more likely to do so than federal courts — if anything, the opposite is true. Under ISL, state courts would be stripped of their jurisdiction to interpret state statutes and constitutions.

What would ISL mean in practice?

That was a lot of ink spilled on the theory of ISL, but let’s turn to how would it work in the real world.

Astute readers may know that the tipping-point state² in both the 2016 and 2020 presidential elections was Wisconsin. So what would happen in 2024 if the Supreme Court rules in favor of the North Carolina General Assembly in Moore next term? First, let’s assume for the sake of argument that Tony Evers wins re-election this fall, but that Republicans maintain control of the Wisconsin State Assembly. There are three possible scenarios for 2024:

1. We end up in a recession and Trump or Ron DeSantis wins Wisconsin fair and square.

2. The Federal Reserve gets inflation under control, the job market is roaring, and Joe Biden wins Wisconsin by a large enough margin on his way to a second term that nobody seriously questions his victory.

3. The results are close but it appears that Biden narrowly carries the state; Republicans cry foul, claiming the election was stolen, and urge the legislature to assign the state’s electoral votes to their candidate.³

To be very clear, it’s most likely that either (1) or (2) comes to pass. But if (3) occurs and ISL has been approved by the Court, then we would be in a situation where the Wisconsin legislature (meaning Robin Vos) has sole authority over how elections are run in Wisconsin — including the authority to appoint the electors of their choosing regardless of who wins more voters. The democratically elected governor would not be able to intervene, and neither would the elected justices on the Wisconsin Supreme Court, nor the voters of Wisconsin via ballot initiative. Oh, and state legislative leaders would also have de facto unilateral control over congressional redistricting, opening the door to even more gerrymandering.

Speaking of gerrymandering, good luck checking a hypothetically over-active state legislature at the ballot box.

Republicans lost the popular vote in all four states but won more seats.

All of this could happen in other swing states such as Pennsylvania, Michigan, Arizona, and Georgia, too.

Where things go from here

Based on the reasoning laid out above, it would be an enormous mistake on both constitutional and practical grounds for the Supreme Court to endorse the independent state legislature doctrine, and I sincerely hope the justices rule against the North Carolina General Assembly in Moore v. Harper. The chief justices of all 50 state supreme courts think so, too.

Will Doran @will_doran

In a rare move, the group of all 50 states' Supreme Court chief justices wrote to SCOTUS, urging them to shoot down the argument NC Republican lawmakers are making--that there should be no checks and balances for election laws--in their "Independent State Legislature" case #ncpol

But it seems like there may be at least three votes for ISL in Moore. In March, the Court denied the legislature’s request to issue a stay and reinstate the GOP-drawn congressional map. Justice Alito, joined by Thomas and Gorsuch, dissented from the denial, writing that “it is also likely that [the legislature] would prevail on the merits if review were granted.”

It’s unclear how Roberts and Kavanaugh will vote since both have sent mixed signals in the recent past. In October of 2020, Kavanaugh gestured towards approval of ISL in Democratic National Committee v. Wisconsin State Legislature, a case concerning late-arriving mail ballots, though he later declined to sign onto a similarly-reasoned dissent by Alito, Thomas, and Gorsuch in Republican Party of Pennsylvania v. Boockvar (2020). Roberts’ dissent in AIRC argued for a strict, ISL-type interpretation of the word “legislature” in the Elections Clause, but his majority opinion in Rucho explicitly endorsed state courts getting involved in redistricting, and the chief justice is generally seen as more cautious and moderate than his conservative-bloc colleagues. (It’s true that Thomas, Alito, and Gorsuch all signed onto Roberts’ Rucho opinion, but this Court has shown itself willing to discard precedent before.)

For these reasons, Court watchers believe that Amy Coney Barrett is likely to be the decisive vote in Moore. If Justice Barrett or one of her clerks happens to stumble upon this column, I would respectfully urge her to vote against ISL.

But as the saying goes, hope for the best and plan for the worst. In the event that the Supreme Court greenlights ISL, there are three things that can be done.

First, it will become all the more important for the media to increase their coverage of the speakers and Senate presidents who hold the real power in state legislatures, especially with regard to election legislation.

Second, we can tackle partisan gerrymandering. Because the Elections Clause states that “the Congress may at any time by Law make or alter such Regulations,” ISL would still allow for a federal anti-gerrymandering bill. And to the best of my understanding, while ISL holds that state legislatures have sole control over congressional redistricting (absent federal intervention), it says nothing about state redistricting. If you live in a state that doesn’t have one already, then fighting to implement a Michigan-style independent redistricting commission will be critical to keeping elections competitive and holding state legislators accountable to the will of the people.

Finally, the best thing you can do if you live in a swing state is vote for pro-democracy state legislators. In practice that’s going to mean voting for Democrats, and thanks to independent commissions, control of the legislatures in Pennsylvania and Michigan are up for grabs this fall. If you’re a conservative or Republican-leaning voter who opposes ISL but isn’t on board with the rest of the Democratic Party agenda, that’s okay too — you can split your ticket and vote for a Democrat for one chamber of the legislature and a Republican for the other. Without unified control of the legislature, overzealous partisans can’t overturn elections, and a divided state government will preclude large changes in policy. If you don’t live in a state with a competitive legislature, consider donating a few dollars to flip a chamber (or even a seat) in a close state.

My grandparents were born in a colony, subjects of the British Empire. My parents were born citizens of an independent India that guaranteed universal suffrage from the moment of its founding, in 1947. The country of my birth, the United States of America, did not extend the ballot to all its citizens until 1965. Our right to vote wasn’t given, it was hard-won. Do not let politicians take it away from us for short-term partisan gain.

1. Yes, the two are related — they’re brothers.

2. Not counting faithless electors in 2016.

3. On paper, under ISL either party could use the legislature to overturn the results of a presidential election. But in practice, given their control of many more swing state legislatures and the “Stop the Steal” movement, it’s much more likely to be the GOP, at least in 2024.