The “Independent Legislature” Theory. What It Means for PA

“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.” – United States Constitution, Article 1, Section 4

The theory of the “independent legislature.” 

How this theory is interpreted in the coming months and years will have major ramifications for how the Commonwealth and other states choose presidential electors.

On most occasions, the clause has been interpreted that states and their legislatures decide the times and places for elections, but Congress can change these for Senators and Representatives. Republican state legislatures in Pennsylvania and North Carolina read that clause as only state legislatures may make election rules, unless the federal government passes contrary legislation.

Translation. Any state court decision requiring the redrawing of state legislative maps is unconstitutional under the U.S. Constitution. 

The U.S. Supreme Court has never adopted that stance, deferring to state courts as the arbiters of state constitutions and laws.

And on Monday, the high court turned down the PA and NC redistricting challenges, largely on procedural grounds. However, should the GOP request further review of the case, four justices – Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaughhave indicated that they would put the case on the court’s docket, per court rules. To grant a requested stay, the Court would need five votes in favor.

“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,” Alito wrote.

Even then, how far reaching could the ruling be? “There’s a lot of potential for nuance here,” said Rick Hasen, an election law expert at the University of California, Irvine School of Law who does not support the theory. “Even if you had a majority of justices that agreed that there’s something to this theory, they might not agree that a particular state has violated it,” he told POLITICO.

The Pennsylvania case is unique in several ways. Its Supreme Court never threw out a legislative map. The court selected its own because the governor and the legislature were deadlocked.

“The main votes that everyone is watching are (Chief Justice John) Roberts, (Amy Coney) Barrett and Kavanaugh. And whoever gets two of the three will likely win,” said Cameron Kistler, an attorney at the group Protect Democracy.

Victoria Bassetti, a senior adviser at the nonpartisan States United Democracy Center, noted that it could also create a situation where state legislatures take a more hands-on role in election administration. 

A near-unchecked supremacy of legislatures would “essentially make one branch of government the absolute authority of how our democracy is implemented,” she said. “It just really runs counter to the entire idea of American democracy, which is balance of powers.”

6 Responses

  1. Simply put we would have tyranny by the minority. Sen Corman and his gang would dictate who votes and where they vote negating fundamental fairness. Voters need to stand up to this intellectual jibberish.

  2. Gorsuch, Alito and Thomas expressed their support in the dissent for the “independent state legislature theory,” which rests on an ultra-narrow and literal reading of a couple constitutional clauses. The Elections Clause of the Constitution gives state legislatures the power to dictate the “times, places and manner” of holding elections. The Electors Clause gives state legislatures the power to appoint presidential electors in the “manner” they choose.

    The conservatives are interpreting those two clauses to empower state legislatures, solely, to the exclusion of state courts. Legislatures would get to craft voting regulation, redistricted maps, election rules — all without any judicial review. A maximalist embrace of the independent state legislature theory would mean that state constitution provisions and voter-passed initiatives on elections would not apply, and that state courts would have no place intervening in election litigation.

    The theory is a wild break with the logic on which the Constitution is written.

    Chief Justice Roberts wrote a fiery dissent in an Arizona redistricting case of 2015 but has expressed a fairly nuanced view on the matter. He seems to have a problem with federal courts overriding state legislatures, but less hostility to state courts exercising power over them. He also was part of the group of justices that guaranteed state courts as a venue for redistricting challenges when the Court shut down the federal judiciary from hearing partisan gerrymandering cases in 2019 — though Alito, Gorsuch, Thomas and Kavanaugh, who joined him in that opinion, seem to have no qualms about now also barring state courts from hearing redistricting cases under the independent legislature theory.

    The real mystery on the court is Justice Amy Coney Barrett. She helped George W. Bush’s legal team during the Bush v. Gore litigation, but that tenuous connection is the only data point we have about where she might stand on this issue.

    If enough justices embrace this theory, it’ll give state legislatures — which skew Republican thanks to down-ballot investments and aggressive gerrymandering — free rein over redistricting, voting rules and, most disturbingly, elections.

    1. Just goes to show conservative justices can practice activism as well under the guise of “strictly following the Constitution.” Originalism is phony.

      But what they don’t realize is that following this theory will allow Demcoratic states to do the same. It will implode democracy in every single state. Gerrymandering 100% to the max.

      1. The “originalists” miss the days of only white male land-owners being able to vote.

    2. “The theory is a wild break with the logic on which the Constitution is written.”

      No its literally just reading the words in the Constitution. You want the words to be different, but they are not. Only state legislatures can do it, not state courts. Anything else is clearly and plainly unconstitutional.

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