The Independent State Legislature Theory

In June of this year, the United States Supreme Court agreed to hear a case from North Carolina — Moore v Harper — that could give state legislatures sole authority to set electoral rules for state and congressional elections even if their actions violated state constitutions and resulted in extreme partisan gerrymandering.  This case, invoking the so-called “independent state legislature theory,” arises because the North Carolina state legislature tried to gerrymander the purple, evenly divided Republican/Democratic state to give ten of the fourteen congressional house seats to the Republicans.  The Court has already ruled that partisan political gerrymandering is beyond the reach of federal courts.*   In response, North Carolina voters went to their state courts to contest the Republican gerrymandering.  The state supreme court agreed that the gerrymandering was illegal under the North Carolina state constitution.  In Moore v Harper, however, the state’s Republican controlled legislature is now claiming that it has absolute authority to write election laws and is not limited either by its own constitution or the state court system.

The claim seems so bizarre that the US Supreme Court’s willingness even to entertain it sent shock waves throughout the nation’s prodemocracy forces.

So, what’s going on?

The “elections clause” in Article I of the United States Constitution 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 proponents of the independent state legislature theory fasten on to the word “legislature” as if the state legislative body were independent of its state constitution or not subject to its state courts, ie subject to the same checks and balances that safeguard our American system of government.

The nonpartisan Brennan Center for Justice writes:

The independent state legislature theory runs contrary to the constitutional text, history, practice, and precedent.  The framers famously distrusted state lawmakers, so much so that when they drafted the Elections Clause, they insisted that Congress retain the ultimate power to set the rules for federal elections.  The framers would not have established — and indeed did not establish — a regime that would permit state legislatures to regulate federal elections without the ordinary checks and balances that apply to state lawmaking power.  State practice, from the country’s founding to today, also refutes the theory.  For example, many framers — including James Madison — voted to adopt state constitutions that regulated federal elections, as North Carolina’s does today.

On top of this overwhelming historical evidence, the theory makes no sense: it would be absurd for a state legislature to be allowed to violate the very state constitution that created it.  Other problems doom the theory, as an avalanche of recent scholarship demonstrates.  For these reasons, the Supreme Court has repeatedly rejected the theory for over a century, including as recently as 2015 and 2019.

The theory has been widely discredited, yet Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch have indicated support for it.  Brett Kavanagh has seemed on the fence and Amy Coney Barrett hasn’t expressed herself about it.  The theory really only came to more public attention with Trump’s effort to overturn the 2020 election.  For the Court to accept the case, four judges would have had to vote for it.  Although votes to accept cases are not public, presumably Thomas, Alito, Gorsuch and Kavanagh voted to accept it.

The conservatives of the Court claim to be “originalists,” that is holding to the original intent of the founders.  But one cannot read the Constitution or the history of its writing and see an iota of “original” support for the independent state legislature theory.

The crucial political backdrop to this case is the significant Republican advantage in gerrymandered control of statehouses.  Both parties gerrymander when they can, but the redistricting that occurred in 2010 followed a particularly powerful national Republican effort to take control of state politics.  After the losses of the 2008 election, the Republican Party looked to be facing a long period in the political wilderness.  Reviewing David Daley’s Ratf**ked: The True Story Behind the Secret Plan to Steal America’s Democracy, Elizabeth Kolbert wrote in the New Yorker about how things looked prior to 2010.

In twenty-seven states, Democrats held the majority of seats in both houses of the legislature, and in six more they held a majority in one house.  The Presidency, the US Senate, and the House of Representatives were all in Democratic hands.  To describe their own party, Republicans were using words like “wounded” and “adrift.”

And, as bad as things looked at the time, the GOP’s prospects down the road looked even worse.  In 2011, new census figures were due to be released, and this would trigger a round of redistricting.  Republicans, Daley writes, were facing “a looming demographic disaster.”

The Republican response was REDMAP, the Redistricting Majority Project.  In several state legislatures, Democratic majorities were thin.  Taking advantage of the radical-right energy of the Tea Party movement and the Supreme Court’s January 2010 Citizens United decision allowing unlimited political dark money, REDMAP raised $30 million and targeted local state legislative races in sixteen states, including swing states like Wisconsin, Michigan, Ohio, Pennsylvania, and Florida, funding negative ads in lower-profile state legislative races.  The Republicans commissioned polls, brought in high-powered consultants, and flooded out-of-the-way districts with ads.  Democrats were caught unaware and flatfooted.  

Kolbert writes

All told, in 2010 Republicans gained nearly seven hundred state legislative seats, which, as a report from REDMAP crowed, was a larger increase “than either party has seen in modern history.” The wins were sufficient to push twenty chambers from a Democratic to a Republican majority.  Most significantly, they gave the GOP control over both houses of the legislature in twenty-five states.  …  The blue map was now red.

We most often consider gerrymandering in relation to congressional elections for the US House of Representatives.  But gerrymandering of state legislative districts is in some cases more pronounced and important.  In Wisconsin and Michigan, for instance, Democrats have recently won all statewide elections (eg, governor and attorney general where gerrymandering doesn’t come into play), but both statehouses remain firmly in Republican control.  The majority of voters in those states are Democrat but the Republicans control the statehouses, which — if the independent state legislature theory is approved by the Court — will control election policy in the 2024 election.

The consequences of the Supreme Court approving the independent state legislature theory would be chaotic since state legislatures would be able to ignore not only the state constitutions and courts but also public referenda, independent redistricting commissions, delegations of electoral authority to secretaries of state and election commissions.  Other state constitutional rights, such as the right to a secret ballot, could also be on the block.

It all seems so bizarre that it’s hard to believe the Supreme Court would really decide this way.  But three justices have already indicated support for it and a fourth apparently wants to look at it.  It’s important that we recognize how extremist the Supreme Court has already become.  We know that Justice Thomas’s wife Ginni is deeply involved in election denial and attempts to overturn state elections, so presumably Justice Thomas is at least sympathetic to these views.

All six of the conservative justices have been members of the Federalist Society, which has as a major goal federalism, that is, returning power to the states.  So, as in West Virginia v EPA dismantling the federal administrative state and Dobbs v Jackson Women’s Health Organization overturning the constitutional right to abortion, these conservatives are about radically reducing the power of the federal government to govern.  

The independent state legislature theory is not about originalism; it is about partisanship, pure and simple.

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* Racial gerrymandering has been ruled unconstitutional but political gerrymandering has not.