How a fringe legal theory at the Supreme Court could blowtorch American elections

Right-wing legal groups and Republican lawmakers put the so-called ‘independent state legislature’ theory at the centre of one of the most important tests for democracy in front of the US Supreme Court, Alex Woodward reports

Tuesday 06 December 2022 14:59 GMT
A protest in front of the US Supreme Court in 2019 demanded an end to partisan gerrymandering, the drawing of political boundaties for elections that benefit one party. A new case in front of the justices could open the door for state lawmakers to increased gerrymandering.
A protest in front of the US Supreme Court in 2019 demanded an end to partisan gerrymandering, the drawing of political boundaties for elections that benefit one party. A new case in front of the justices could open the door for state lawmakers to increased gerrymandering. (AFP via Getty Images)

In February, a 40-page order from North Carolina’s Supreme Court found that a Republican-drawn map of the state’s political boundaries for congressional districts “unconstitutionally” infringed on the fundamental rights of voters in the state.

The map – the product of a once-a-decade process of redrawing the political boundaries represented by elected officials in each state – had deprived North Carolina voters of “substantially equal voting power on the basis of partisan affiliation” by drawing a map that “diminishes or dilutes a voter’s opportunity to aggregate with like-minded voters,” according to the ruling.

The court threw out the map from the state’s GOP-dominated state legislature and enlisted a nonpartisan panel to draw one instead – one that adheres to the state’s constitutional protections against partisan gerrymandering.

But a dubious legal theory that is now in front of the US Supreme Court in Moore v Harper could eliminate state constitutional bans against gerrymandering and other voting protections, radically reshaping the nation’s elections and potentially handing electoral control to Republican-dominated state legislatures, primed to “rig” the next elections.

North Carolina Republicans, with support from an influential right-wing legal group, have appealed to the Supreme Court in a case with the “independent state legislature” theory at its centre, a fringe reading of the US Constitution that underpins GOP efforts to subvert election laws across the US and animates the bogus legal arguments behind Donald Trump’s attempts to overturn the 2020 presidential election.

North Carolina’s Supreme Court rejected state lawmakers’ congressional map and the “independent state legislature” argument to defend it, calling it “repugnant to the sovereignty of states” as well as “the authority of state constitutions and the independence of state courts” and “would produce absurd and dangerous consequences.”

One reading of the theory argues that elected members of a state legislature have absolute authority to determine how federal elections – as in, elections for members of Congress and the president – are performed. State constitutional protections for the right to vote and efforts to combat partisan and racial gerrymandering could be overruled.

The theory “would give state lawmakers, not state governments, without governors, without courts … the authority not only over how legislative maps get drawn but how all the rules of federal elections are administered,” according to Daniel Squadron, founder of the pro-democracy elections group The States Project.

“Even, in some cases, which candidate won,” he said in a briefing with reporters.

A “nightmare” scenario could mean that a Republican-controlled state legislature that rejects the outcome of an election or objects to how it was administered – including the use of mail-in ballots or voting machines that have been subject to rampant, baseless conspiracy theories – could invoke the theory as pretext to refuse the results.

That’s not far from what Mr Trump’s allies sought in the aftermath of the 2020 election. A memo from Mr Trump’s lawyer John Eastman to then-Vice President Mike Pence urged him to reject Electoral College votes cast for Joe Biden because the Constitution “assigns to the legislatures of the states the plenary power to determine the manner for choosing presidential electors.”

Retired federal judge J Michael Luttig – who advised Mr Pence on 6 January, 2021 – warned that the theory is a part of the “Republican blueprint to steal the 2024 election.”

Dozens of briefs to the Supreme Court urged justices to reject the theory, from constitutional law experts, election officials and voting rights advocates to judges and prominent Republicans – including lawyer Ben Ginsberg, who worked on the landmark Bush v Gore case in 2000 that opened the door for the theory to take shape.

Chief justices from state courts across the US wrote that the Constitution “does not oust state courts from their traditional role in reviewing election laws under state constitutions.”

Without such barriers, courts will be “flooded with requests to second-guess state court decisions interpreting and applying state elections laws during every election cycle, infringing on state sovereignty and repeatedly involving the federal judiciary in election disputes,” they wrote in a filing to the court.

A filing on behalf of the League of Women Voters said the theory could “throw election law and administration into disarray”.

More than a dozen secretaries of state warned that the “mistaken legal theory alien to our country’s history and this court’s precedent would have far-reaching and unpredictable consequences on our country’s elections.”

“The theory advanced in Moore calls for a legal revolution that would chop up and alternate rules by type of election, ushering in chaos and confusion for poll workers and voters,” according to a statement shared with The Independent from Jon Sherman, litigation director and senior counsel for Fair Elections Center.

The theory is a “radical and, until recently, a fringe reading of the elections clause” of the Constitution, according to Helen White, counsel with nonpartisan anti-authoritarianism organisation Protect Democracy.

“The theory … is at odds with over 100 years of Supreme Court precedent,” she said in a press briefing with reporters. “This case sort of presents an exact 180 … a complete pivot.”

“Their fundamental argument is the state legislatures and only the state legislature can regulate federal elections,” added Eliza Sweren-Becker, counsel in the Voting Rights and Elections Program at the Brennan Center for Justice at New York University’s School of Law.

If adopted by state legislatures, it could be used to “effectively strike down hundreds of state statutes and court decisions” and “thousands of policies essential to running elections,” she said.

Al Schmidt, a former Republican election official in Philadelphia, said the theory “invites both chaos and paralysis into the system in a way that election administration becomes unworkable.”

Those radical and confusing changes add a “degree of uncertainty to election administration that is adverse to elections being free and fair,” he added.

The US Constitution’s election clause reads that the times, place and manner of federal elections “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 long-standing interpretation of that foundational clause is that election rules established by state legislatures must – like any other law – conform with state constitutions, which are under a court’s jurisdiction for review as to whether they are constitutional or not.

“So if a state constitution subjects legislation to being blocked by a governor’s veto or citizen referendum, election laws can be blocked via the same means,” the Brennan Center explains. “And state courts must ensure that laws for federal elections, like all laws, comply with their state constitutions.”

The dispute among conspiracy theorists and adherents of the “independent” theory hinges on “by the legislature thereof” part of the clause, according to Ms White with Protect Democracy.

An October survey from left-leaning think tank Data for Progress and The States Project found that 83 per cent of respondents believe a presidential candidate who wins the most votes should receive that state’s electoral votes, while only 10 per cent of respondents believe state lawmakers should decide, a 10-point gap that “represents as thorough a repudiation of the rightwing’s attempts to enshrine the independent state legislature doctrine into law,” according to the report.

The Honest Elections Project, a Federalist Society-supported effort behind litigation involving state-level voting rules across the US, is also supporting the North Carolina case.

The group invoked the fringe theory in a supporting brief filed with the Supreme Court, claiming that state legislatures are “vested with plenary authority that cannot be divested by state constitution to determine the times, places, and manner of presidential and congressional elections.”

The case that is now before the court “provides a timely opportunity to put these questions to rest,” according to the filing.

Earlier this year, conservative Justices Samuel Alito, Neil Gorsuch and Clarence Thomas suggested that they could defend the theory, arguing that it presents an “exceptionally important and recurring question of constitutional law.”

In 2020, Justice Gorsuch wrote that the Constitution “provides that state legislatures – not federal judges, not state judges, not state governors, not other state officials – bear primary responsibility for setting election rules.”

Former US Attorney General Eric Holder, chair of the National Democratic Redistricting Committee, told CBS that he is “extremely concerned” that the Supreme Court could legitimise the theory.

“It is a fringe theory,” he said on 4 December. “This is something that if the court I think does the right thing, you should have a nine to zero opinion by the court that rejects this notion … that has been rejected by conservative scholars, by practicing Republican lawyers, by former Republican judges, and by this conference of state supreme court justices, as well. This is a very, very dangerous theory. It would put our system of checks and balances at risk.”

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