Why the Independent State Legislature Doctrine is Both Ridiculous and a Real Threat
Through its newly-radicalized Supreme Court, the hard right hopes to use the “Independent State Legislature” (ISL) doctrine to give sole control over federal elections to state legislatures (and the Republican Party) — unconstrained by provisions in states’ constitutions, and beyond review by the other branches of state government, i.e., their governors or courts.
In Moore v Harper, to be heard during SCOTUS’ next term, the Speaker of the North Carolina House of Representatives, seeks to use ISL to preempt the North Carolina Supreme Court’s prior ruling that the legislature’s gerrymandering plan violates the state constitution — which prohibits congressional redistricting that gives an unfair advantage to a political party.
The 6–3 conservative majority on SCOTUS is widely expected to adopt ISL even though there is ample legal history to refute it. Several people have written extensive arguments against the theory — seemingly airtight — none of which will matter with this Court. See, for example, Amar and Amar, “Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish” (Citation in notes)
Remember, pleasant-looking John Roberts was the author of the SCOTUS opinion which said that federal courts cannot get in the way of state gerrymandering because that’s a “political question” best left to the states. He also eviscerated the Voting Rights Act, claiming that issues of racial disparity which were its reason for passage have been all cleaned up.
The ISL theory is numbingly crazy, but do not let yourself think that the Roberts-Alito-Thomas-led Court is going to come to its senses and do the right thing.
The ISL claim is based on the language of the first clause of Article II, Section IV of the US Constitution:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . .
The claim is that since the clause only says “legislature,” the state courts and governors can’t have a say if the legislature’s rules violate the state’s constitution. As noted, there’s plenty of existing law to refute that contention, but this Court will not listen. So, enjoy the academic reading, but guard for the worst.
Eliza Sweren-Becker of The Brennan Center for Justice makes the following points (credit in notes):
First, ISL would greenlight partisan gerrymandering of congressional districts.
· For instance, a state legislature could draw an extreme partisan gerrymander without consequence — something that state courts would otherwise strike down as illegal under the state constitution.
· That’s just as backwards at it sounds: state lawmakers could violate their own constitutions.
· Redistricting commissions in up to nine states could become defunct.
· And fair representation could become more difficult, even impossible.
· That’s because the Supreme Court already took federal constitutional protections off the table, ruling in the Rucho case that federal courts cannot stop partisan gerrymandering.
· The Court offered up state courts as the answer. But if state courts can’t stop partisan gerrymandering, the tactic will thrive.
Second, ISL would remove constraints on voter suppression.
· For example, a legislature could eliminate early voting — even if it’s guaranteed in the state constitution, and even if the people enacted it by ballot initiative.
· The state’s governor would be unable to veto such a decision. And a state court would be powerless to stop it.
· Yes, voters could bring their case to federal court. But the Supreme Court has gutted the most powerful provisions of the Voting Rights Act and undercut other federal voter protections.
Third, ISL would create election chaos, disenfranchising voters and overwhelming election officials.
· The claim would undo hundreds of election laws enshrined in state constitutions, enacted by ballot initiative, and implemented through administrative rules.
· Policies enacted through direct democracy — like mail voting, same day registration, and even voter ID — could be wiped off the books for federal elections.
· Voters could be blocked from voting for candidates for federal office, even if they are eligible and were properly registered to vote.
· A range of other policies established in state constitutions, rather than legislation, would be voided. The right to cast a secret ballot, for instance, is guaranteed in 44 state constitutions.
· Election officials would be forced to administer a two-tiered system, with different policies for state and federal elections. It will be unclear which rules actually apply. And if election officials don’t know what the law is, voters surely won’t.
Fourth, ISL would remove critical checks against election interference and sabotage.
· The radical idea could enable legislatures to manipulate election outcomes. For instance, they could enact arbitrary rules for counting votes.
· The claim would invite legal challenges asking federal courts to throw out ballots cast in reliance on state constitutions, laws enacted by ballot initiative, or policies implemented by election officials.
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Recent Supreme Court’s decisions strikingly and consistently ignore limiting language in the Constitutional provisions they’re claiming to interpret:
· “Guns for everybody everywhere” (pay no attention to that “well-regulated militia” stuff);
· The “free exercise” of religion supersedes any concerns about government endorsing religious practice;
· The job of legislation is to be left to Congress, except where Congress passes legislation giving regulatory agencies the authority to constrain oil companies.
Likewise, the ISL Doctrine depends entirely on ignoring the second clause of Article II, Section IV, which reads, in full:
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 Place of Chusing Senators.
So, Congress has enacted, in 1957, 1960, 1964, 1965, 1968, 1970, 1975, 1980, and 1982, legislation to protect the right to vote in all elections, federal, state, and local, through the assignment of federal registrars and poll watchers, suspension of literacy and other tests, and the broad proscription of intimidation and reprisal, whether with or without state action.
Eliza Sweren-Becker continues:
To be clear, the independent state legislature claim is not a license to coup. Federal law prohibits state legislatures from overturning the results of an election. But the notion would open the door to antidemocratic shenanigans. And even failed efforts to manipulate elections erode trust — and, ultimately, participation — in our democracy.
Even if the Court embraces this radical notion, Congress can thwart many of its worst consequences. The Elections Clause, the very same constitutional provision that activists seek to weaponize against democracy, gives Congress the power to enhance and protect voting rights and ensure fair representation.
That’s why, regardless of how the Supreme Court rules, [Congress must] revisit and pass the Freedom to Vote: John R. Lewis Act.
The bill would set national standards for voting access, prohibit partisan gerrymandering, and add federal protections against election interference and sabotage.
The midterm elections are a fight for survival: Passage of any new voting rights legislation depends on breaking the Senate filibuster, which two of the Democrats’ fifty senators oppose (Manchin and Sinema). Two or three additional Democrats in the Senate can get the job done, and current polling suggests that a 52- or 53-vote Democratic majority is within reach.