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SCOTUS to Hear “Independent State Legislature” Theory

U.S. Supreme Court

In a major order that will affect Pennsylvania and the nation, the U.S. Supreme Court today opted to take on Moore v. Harper, a case centered on newly drawn maps of voting districts in North Carolina.

It is a case that could upend election laws across the country based on a legal theory that has also been debated in the Commonwealth.

It is called the “Independent State Legislature” theory. Proponents believe that the Constitution gives state legislatures the right to create rules for federal elections with no oversight from state courts. Opponents say it would effectively strip those courts of their power to protect voting rights under state constitutions.

In North Carolina, Republicans want to bring back a map that state courts struck down as unconstitutional due to giving GOP candidates an unfair advantage through gerrymandering. In the appeal to the U.S. Supreme Court, those lawmakers argued that the Constitution gives state legislatures the power to make their own determination on how to conduct elections.

Article I, Section 4, Clause 1 of the 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, except as to the Places of chusing Senators.”

“If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” wrote Justice Samuel A. Alito, Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch in March. “I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.”

“Nothing in that clause instructs, nor has this court ever held, that a state legislature may prescribe regulations on the time, place and manner of holding federal elections in defiance of provisions of the state’s constitution,” Justice Ruth Bader Ginsburg wrote for the five-member majority in the 2015 case,  Arizona State Legislature v. Arizona Independent Redistricting Commission.

“I think the theory is very dangerous to democracy and the Court’s decision to hear the case is very alarming,” says Kermit Roosevelt, professor for the Administration of Justice at the University of Pennsylvania Carey Law School. “With respect to redistricting, which is what this case is about, adopting the independent state legislature theory would make it easier for legislatures to engage in partisan gerrymanders. It would also go directly against what the Supreme Court said when they refused to offer a federal constitutional remedy for partisan gerrymanders — they said in that case that state courts and state constitutions could impose limits. That’s not the first anti-democratic bait and switch we’ve seen from the Roberts Court. They did the same thing with the Voting Rights Act, first wiping out the preclearance provisions while assuring us that other antidiscrimination provisions remained, then gutting those remaining provisions. As this pattern recurs, it gets harder and harder to believe that it’s not a deliberate attempt to undermine democracy.”

This was in fact the theory that Trump allies tried to raise after the PA Supreme Court extended the time to receive absentee ballots in the 2020 elections because of covid, relying on voter protective provisions in the State constitution,” wrote Rick Hasen, professor of law and political science at the University of California Irvine. “Trump allies argued this usurped the power of the state legislature to set deadlines, and Justice Alito at the time (Circuit Justice for the Third Circuit) put the counting of such ballots on hold. There were about 10,000 such ballots, far fewer than the 80,000 vote victory of Biden in the state. But if it had been closer, a radical reading of ISL could have led to a flipping of results.”

Roosevelt added, “The danger is even starker with respect to presidential elections, which is an issue raised in other cases, where the independent state legislature theory has been used to support the idea that state courts are forbidden from responding to problems with elections — even if the constitution and state laws specifically grant them that power. This opens the door for a state legislature to pronounce an election defective if they don’t like the outcome and to award the state’s electors to whomever the legislature favors. We should all be very worried.”

“It is really a grave danger to American democracy to say that state legislatures are free from state constitutions to do whatever they want,” says Vikram Amar, dean of the University of Illinois College of Law, who co-wrote an article for the Supreme Court Review at the University of Chicago about how the theory goes against an originalist understanding of the U.S. Constitution. “State constitutions are an important source of American democracy, limits and rights. And I think it would be terrible if the U.S. Supreme Court distorted federalism to reject that very important premise.”

updated comments from Roosevelt and Hasen

10 Responses

  1. State legislatures are less partisan and corrupt than state courts, and more responsive to changes in vote patterns. Every state court that finds a problem with gerrymandered districts is just the former party regime trying to hold onto power for another cycle. By far the most democratic institutions in the U.S. are the state legislatures because they have small districts and have elections every two years. Anyone complaining about state legislatures being strengthened is against democracy.

    1. The election of state judges do not have the binds of gerrymandered districts diluting the voices of the voters. It’s one person, one vote. You might not like the judgements from our PA Supreme Court, and call them partisan, but you cannot deny their majority did not rely on the very lines our current legislators would like to enshrine for their own political benefit.

  2. This could give state legislatures virtually unchecked power over federal elections, eroding basic tenets of American democracy. It could cut governors and state courts out of the decision-making process on election laws while giving state lawmakers free rein to change rules to favor their own party. The impact could extend to presidential elections in 2024 and beyond, experts say, making it easier for a legislature to disregard the will of its state’s citizens.

    This immense power would go to legislative bodies that are themselves undemocratic because they have been gerrymandered to create partisan districts, virtually ensuring the party-in-power’s candidates cannot be beaten.

    1. Oh no! You mean it would destroy democracy – defined as the people voting for politicians to represent them – allow the politicans who were elected by the people to represent them power over … those elections?


  3. Under the leadership of ALEC and other right wing groups Republican legislatures have been using the pandemic to undermine the powers granted to the governor under the state constitution since Trump declared it a hoax.

    The peaceful transfer of power which is a hallmark of democracy doesn’t fit the current Republican agenda of total control even when they lose elections.

  4. Thus fringe theory is being embraced by the most Corrupt SCOTUS in the history of the Republic, to permanently entrench rule of the majority by the wealthy and powerful minority. That’s the definition of Fascism, boys and girls. If Joe Biden doesn’t have the scrotes to appoint four additional justices, democracy in the US is done.

    1. Yes, noted “fringe theory” that is set in the words.

      Constitution: “State Legislatures have the power”

  5. History will record 2016-2020 in the United States as a very corrupt time with Trump and Mitch McConnell cemented in the annals of history as the destructors of Democracy. Their most dastardly deed was the theft of 3 seats on the Supreme Court.

  6. This is without question an all out rejection of fundamental fairness in society. A judicial attempt to sanction a permanent underclass that has no voice for the poor where racial and economic boundaries are drawn to endure the monied elite have all the say in a legislature that ultimate answers to wealth and power. This foolish move has the potential to take away hope for people as their voice shrinks and as a result destabilize society.

  7. SCOTUS MAGA-majority of lying Justices seeks to continue legislating from the bench to impose medieval restrictions on freedoms.

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