Supreme Court Justices Clarence Thomas, Samuel J. Alito, Neil M. Gorsuch, and Brett M. Kavanaugh seem bent on having the court adopt the “independent state legislature” (ISL) theory. The doctrine would give state legislatures complete and almost unchallengeable control over the appointment of presidential electors, under Article II clause 2 of the Constitution, and over the election of US Representatives and Senators, under Article I section 4, “The Election Clause.” Governors would lose their authority to veto proposed state laws governing federal elections, and state supreme courts would be unable to invalidate laws that violate state law or Constitutions. As Justice Gorsuch put it, “The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, no other state officials—bear primary responsibility for setting election rules.”
The consequences could be devastating for American democracy. Post-election events in January 2021 have shown that some state legislators and other officials are ready and willing to falsify the ballot count or to submit fake elector slates, even enlisting Senator Ron Johnson (R-Wis.) to deliver one such slate to Vice President Pence on January 6, 2021. The false electors are currently under criminal investigation by the Department of Justice.
The effect on the election of senators and members of Congress would be equally severe. With no check from any state judge or governor, the 30 state legislatures currently controlled by Republicans would become not just “independent” but virtually all-powerful. Partisan gerrymandering of federal and state elections would be free not only from federal judicial review (as it is now, because of the US Supreme Court’s 5-4 decision in Rucho v. Common Cause), but also from any state restraint. This would be new: in Rucho, Chief Justice John Roberts advised opponents of partisan gerrymandering to use state statutes, Constitutions, and courts to deal with redistricting abuses.
Efforts to reduce voter suppression would also be frustrated. In 2020, 2021, and 2022, Texas, Florida, Arizona, and many other red states passed scores of laws making it harder to vote, especially by mail. These laws would also become immune to challenge and would probably be expanded, while measures already struck down by state courts could be reinstated. The US Supreme Court has shown no interest in curbing voter suppression, and no check on these laws can be expected from most of the lower federal courts, which now contain 231 new judges whom Trump picked from Federalist Society lists.
The Election Clause does enable Congress to override state law governing federal elections, but that means little. GOP filibusters will likely prevent proposed legislation from even being discussed, as the fate of the current voting rights bill shows.
The “independent state legislature” theory first appeared in a concurring opinion in Bush v. Gore (2000) by Chief Justice William H. Rehnquist—joined only by Justices Antonin Scalia and Thomas—in which he wrote that state courts may not significantly change state federal election laws.
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In 2000, Arizona voters approved an initiative taking redistricting authority away from the legislatures and vesting it entirely in an independent commission. The state legislature, unhappy with the commission’s map, challenged the commission’s action as a violation of the legislature’s exclusive authority under the Elections Clause. A 5-4 majority of the Supreme Court rejected the legislature’s argument, declaring that the word “legislature” was used in the Constitution to include the entire lawmaking body, as it had since 1787 and earlier. In rejecting the state’s challenge, the court declared, “Nothing in the [Election Clause], suggests nor has this Court ever held that a state legislature may prescribe regulations in defiance of…the State’s constitution.”
Chief Justice Roberts, however, writing for the four dissenters, insisted on the narrow definition of “legislature,” citing a law review article by professor Michael Morley, the most prominent academic supporter of the ISL.
More recently, challengers to redistricting maps created by state legislatures in North Carolina, Pennsylvania, Ohio, New York, and Maryland filed successful state court suits, as Chief Justice Roberts had suggested in Rucho, and the states filed emergency appeals. Apparently troubled by these successful challenges, Justice Alito and his allies urged the court to hear some of these cases and adopt the ISL doctrine, which would nullify all these state court decisions. The states’ appeals failed, but the North Carolina case, Moore v. Harper, returned to the Supreme Court in early June, this time with a certiorari petition allowing full argument. On June 30, the last day of the term, the court agreed to hear the case.
Almost all of the many election law experts who have commented on the ISL doctrine have rejected it, except for Morley. Until Bush v. Gore, the Supreme Court’s right-wing justices, all of whom claim to be “originalists,” had never even suggested that the framers understood the word “legislature” to mean only the legislative branch. Nor do they provide any other reason why that interpretation should be adopted now, or at any other time. Their only argument rests on the narrow meaning of “legislature” rejected by the court in the Arizona case just seven years ago, and which flies in the face of the nearly two and a half centuries of state judicial review of federal election law.
The framers would have never given such power to state legislators, many of whom the framers considered “local demagogues” and “designing men.” Alexander Hamilton feared that they would not even send representatives to the federal government; James Madison thought the state legislatures were “extending the sphere of [their] activity, and drawing all power into [their] impetuous vortex.” During the 18th and 19th centuries, Virginia and some 30 to 40 other states revised their Constitutions to enhance the powers of governors and judges to strengthen judicial and other checks on the legislatures.
Most of today’s state legislatures aren’t much better. As The New York Times’ Jamelle Bouie recently observed, “Americans have never wanted to entrust their state legislatures with sweeping electoral power.” And for good reason. This May, the Times reported that 44 percent of GOP legislators in nine swing states are still trying to discredit the results of the 2020 presidential election.
In many places where the Constitution refers to state action, the framers did use only the word “legislature.” But recent research confirms that the framers expected that the legislators’ regulation of the “time, place and manner” for state and congressional elections, and their choice of presidential electors, would be subject to the usual state constitutional and statutory controls. That assumption continues to this day, as the Arizona case illustrates.
Adopting the ISL theory would also seem to violate Article IV paragraph 4 of the Constitution, which requires the United States to “Guarantee to every State a Republican Form of Government.” Fundamental to every successful republic is a separation of governmental power among the major branches of government, and so distributed as to enable each branch to check and balance the others. The ISL virtually eliminates any check on the branch the framers considered the most dangerous.
Popular sovereignty—the right of state citizens to choose their own form of government—would also be at risk. Almost all our state Constitutions were adopted by conventions and ratified by voters, and judicial review of state legislation was either assumed by the voters or specifically established in the state Constitution.
Finally, adoption of the ISL theory would, as legal scholar Richard L. Hasen has warned, “create a potential earthquake in American election law by upending everything from voter initiatives [to] setting the rules for congressional primaries to normal election-administration decisions of state and local election administrators.”
Supreme Court justices always indignantly reject the imputation of any political motivations, but since the arrival of Roberts and Alito in 2006, the court has continually sided with the GOP in voting and other political cases. It is thus hard to resist the suspicion that the ISL theory’s frequent appearances since 2015 have something to do with the Republican takeover of some 30 state legislatures in the 2010 election—which, given the Supreme Courts’ elimination of any meaningful check on partisan gerrymandering, may continue for decades if the ISL becomes law.
We dare not repudiate the assumptions and expectations that have guided our nation for nearly two and a half centuries, and especially not by judicial fiat. Nevertheless, it may already be too late. With Roberts’ dissent in Arizona, there may be the necessary five votes. But the chief justice is an institutionalist, and he may now see adoption of the ISL as a bridge too far. He has had second thoughts at least once before.
