The January 6th hearings have proven that the threats to our elections come from all directions: the White House, a violent mob, secretaries of state, legal machinations, alternative electors claiming their state went for Trump with a senator’s aid. Dangerous plots abound, but the most likely to be fatal for our democracy runs through the state legislatures.
As Pence’s legal counsel, Greg Jacob, revealed in the January 6th hearings, Pence may have been willing to ignore the result of an election in a state if the legislature of that state put forward an alternative slate of electors.
In that case, we would rely on the courts to challenge any illegal power-grab blatantly subverting the result of the election. But what if judicial review was outlawed?
That’s the crux of a case the Supreme Court has decided to hear this fall, Moore v. Harper, that could allow state legislatures to have near-complete, unchecked control over elections.
Independent State Legislature Theory Explained
Independent State Legislature theory, or ISL theory, holds that state legislatures have the exclusive power to regulate elections. It came to prominence in the 2000 Bush v. Gore decision when Chief Justice William Rehnquist wrote that state judges have limited power to regulate elections. In the two decades since, Republican legislatures in states such as Arizona, Kansas, and North Carolina have argued for Independent State Legislature theory to try to nullify checks on their authority.
The theory primarily relies on the Elections Clause and the Presidential Electors Clause of the Constitution.
The first 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.”
And the second reads “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”
Basically, it’s up to states to decide how to administer their elections and award electoral votes. Two and a half centuries of practice and a hundred years of precedent hold that the legislature regulates elections by the regular procedures that govern state lawmaking. State courts can shoot down legislation that violates the state constitution, and governors can veto election laws just like any other legislation.
Proponents of Independent State Legislature theory disagree. They believe that the Constitution actually gives state legislative houses alone almost complete authority over elections, only subject to federal regulations established by Congress. If the state legislatures pass a law in violation of their own state constitution, ISL theory holds that the state Supreme Court is powerless to block it. Secretaries of State, who often maintain significant control over the election process, and bodies like independent redistricting committees would be sidelined entirely.
Is Independent State Legislature Theory Legally Sound?
According to respected legal scholars, ISL theory is a misreading of the Constitution and American history.
Legal scholar Vikram Amar explained to CNN, “It’s inconsistent with the practices of state legislatures and state constitutions in 1787, and it’s flouting 100 years of clear precedent from 1916 all the way to 2019.”
State legislatures have never had the sole, unrestrained right to determine how elections are conducted, and doing so would degrade the principle of checks and balances that undergird our Constitution.
The Moore v. Harper Case
The Moore v. Harper case that the Supreme Court will hear in the fall focuses on whether the North Carolina legislature can follow through with a severely gerrymandered redistricting plan that the state Supreme Court determined was in violation of the state constitution. Rather than redraw the districts in accordance with the state constitution, Republican leaders decided that they would take the case to court and argue that their legislation should not be subject to judicial review.
The Supreme Court’s willingness to hear the case means that at least four justices believe that there is something for them to debate. So far, Samuel Alito, Neil Gorsuch, and Clarence Thomas signaled they would likely vote in favor of the Republican lawmakers, effectively endorsing Independent State Legislature theory.
The Threat to Elections
If the Supreme Court rules with the North Carolina Republican leadership, the effects on our democracy would be immediate and significant.
Most directly, extreme partisan gerrymandering would be upheld in North Carolina, even though it is in violation of the state constitution. The Supreme Court of the United States would be no help, as it already ruled in the 2019 Rucho v. Common Cause case by 5-4 decision that it does not have the authority to prevent gerrymandering.
As Democratic lawyer Marc Elias noted, Chief Justice John Roberts explicitly stated in the Rucho decision that state courts would maintain checks and balances over these processes in the absence of federal oversight: “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.” With Moore, that could change, and no judicial authority, state or federal, would be able to stop gerrymandering.
The greater threat to our democracy comes by implication. If the state legislatures are the only authority on election proceedings, very little stops them from passing legislation that allows them to override the result of a free and fair election. The claim that state elections were improperly conducted and, by effect, illegitimate was central to Michael Eastman and Donald Trump’s plot to overturn the 2020 election. The Moore v. Harper decision could empower state legislatures to act on those claims and put forward alternative electors, circumventing the popular vote. In 2020, legislatures in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin would have had a strong incentive to do so, as Republicans controlled the legislature but Biden carried the presidential vote.
If the Supreme Court decides in Moore that Independent State Legislature theory is constitutional, it would pave the way for state legislatures to try to overturn election results. Along with the defective Electoral Count Act, it could leave our electoral process without the checks and balances that define American democracy. Entrusting political bodies with this much authority would be inviting a constitutional crisis. While it might not happen immediately, we wouldn’t be able to escape it forever.