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What the "Independent State Legislature Theory" DOES NOT DO [1]
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Date: 2022-07-02
The Supreme Court
Since the Supreme Court announced this past Thursday that it would be hearing the controversial gerrymandering case out of North Carolina (Moore v. Harper), there has been an overwhelming amount of speculation and fear from both constitutional law experts, politicians and pundits regarding the possibility of Republican-led legislatures overturning the popular vote of their constituents in federal elections because of a once-fringe legal theory that was at the heart of TFG's haphazard attempts to overturn his 2020 loss to President Biden.
That theory, known as the "independent state legislature theory", is based on an extremely misguided and dangerous interpretation of the Constitution's Article I and II Elections Clauses; a reading that interprets legislatures - and only legislatures - to regulate how federal elections are run in the States.
Brennan Center: The Independent State Legislature Theory Explained
It is specifically these two clauses that are being misread to mean only legislatures:
Article I, Section 4, Clause 1: 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 Places of choosing Senators.
And...
Article II, Section 2, Clause 2: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Before I go any further, I should note that I am neither a lawyer nor am I any kind of expert in elections and Constitutional law. I am writing this post to inform you that while there are many people who have feared that the ISL, if enacted by SCOTUS, would immediately give Republican-led State legislatures a free pass to override their voters' picks in Presidential elections (something that several Republican lawmakers wanted to do in a set of extremely dangerous bills in states like Arizona and others that were key to Biden's win), there are other experts in elections and Constitutional law who do not see it that way.
Granted, the ISL is very harmful and we all need to hope that SCOTUS does not rule in favor of it in the above-mentioned case for next term, but there is one big reason why - at least when it comes to Presidential elections - fears of post-election subversion by legislatures may be unreasonable.
As NYU Constitutional Law Professor Richard Pildes wrote on June 9th in Election Law Blog about the limits of the ISL when it comes to deciding Presidential elections: electionlawblog.org/...
Given Congress’ clear constitutional power to determine the timing of the election, state legislatures would still not have the power to ignore the popular vote and decide to appoint electors after election day. The independent state legislature doctrine, if the Court decides to recognize it, would have no bearing on Congress’ power to lock in the date on which electors must be chosen. There has been loose talk that the doctrine would give state legislatures “plenary powers” over the presidential election, from which it supposedly follows that they could “reclaim” their power to appoint electors after the election has been held. That is incorrect. Even if the Court recognizes an independent state legislature doctrine, state legislatures would still be constrained by Congress’ requirement that the electors be chosen on the first Tuesday after the first Monday in November.
He goes on to add, though, that there are two major factors that could throw the process into turmoil: the possibility of a "failed" election due to a natural disaster or other undefined event, which does give legislatures cover to name electors after election day (and, as Pildes notes, will hopefully be cleared up in any reform of the Electoral Count Act). The other, unfortunately, is illegitimate "audits" and "investigations" by Republicans, which have clearly made us all stressed. On that point, though, Pildes writes this:
This would not entail the legislature claiming to appoint new electors after election day, but to be determining which electors the voters had in fact chosen on election day. With respect to the main point of this post, this move by a state legislature would have nothing to do with the independent state legislature doctrine. Litigation would undoubtedly follow, to determine who had indeed legally won the election, and a reformed Electoral Count Act could also provide security against this kind of maneuver.
One more caveat, as I mentioned before: the possibility of more proposed legislation that gives legislatures veto power over election results. However, given the tremendous outcry against such legislation in the past, I don’t think anyone would be so bold to try putting that forth in the future.
There is also another important thing to remember about the ISL, as it relates to states being subject to federal regulations of elections. As Helen White writes in Just Security: www.justsecurity.org/...
Through the January 6th Committee hearings, we are learning more about Trump’s effort in 2020 to have state legislatures overturn the will of their voters and appoint their own preferred slate of electors. Although the theory underpinning that effort claimed that state legislators had a gobsmacking amount of power, the independent state legislature theory – even in its most maximalist form – would not give state legislatures the right to veto their voters’ choices. That is because, under the ISL theory in all of its forms, state legislatures must still comply with federal law, including the many federal and constitutional provisions that set the framework for federal elections, guarantee voting rights, and prohibit arbitrariness and discrimination in the counting of ballots.
Finally, this note from blogger Robert Hubbell: Today's Edition Letter
Although the grant of review in the North Carolina case is concerning, I do not share the dire views of many commentators. Why? Because even if the Supreme Court rules that state courts can no longer review the constitutionality of state legislative actions in federal elections, federal courts can still review those actions.
In closing: though there is still the danger of subversion from partisan vote counters and administrators on the local and State levels (a danger being answered decisively and heroically by organizations like Run For Something and other pro-democracy groups), I hope that this diary eases your fears (and mine) about this much-discussed subject regardless whatever awfulness could result if SCOTUS enshrines the ISL into law.
Of course, no one knows how they will eventually rule on the subject, since it is clearly something out of our control, but there is definitely one thing that is in our control this year and in 2024: our vote.
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