Republican attempts to control congressional redistricting through gerrymandering and efforts to overthrow the 2020 presidential election rest on a long-discredited argument: “the independent state legislature theory.” Proponents of the theory argue that state legislators possess exclusive authority to override party divisions in their state, and create congressional districts that favor their political party.
They also contend that it may empower legislators to overturn the results of a presidential election in their state, and award electoral votes to their chosen candidate. In the 2020 presidential election, seven states formed alternative slates of a total of 84 fake electors in favor of Donald J. Trump. This, despite Joe Biden winning all seven (Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania, and Wisconsin).
According to former federal Judge J. Michael Luttig, a noted conservative jurist, this could be “the Republican blueprint to steal the 2024 election.”
The theory rests on two provisions of the Constitution: Article I’s elections clause, which 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 choosing Senators”; and Article II’s presidential electoral clause, which states, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” (emphasis added).
This past June, the Supreme Court rejected the doctrine, but left open the possibility that the justices may revisit it. Moore v. Harper focused on North Carolina’s gerrymander of its congressional districts. The state is equally divided between Democrats and Republicans. The legislature created a congressional map with 10 Republican districts, and just four for Democrats. The state supreme court threw out the map, and Republican leaders appealed to the Supreme Court.
In a six-to-three decision, Chief Justice John Roberts, writing for the court, said that while the Constitution empowers state legislatures to regulate federal elections, “state courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause.” But he did not give state courts free rein, either.
Federal courts, he wrote, “must not abandon their own duty to exercise judicial review. In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures.”
The origins of the independent state legislature theory date to the 2000 presidential election. That was when the Supreme Court stopped the vote recount in Florida. Attorneys for George W. Bush argued in Bush v. Gore that the Florida supreme court wrongly ordered a recount of the votes. The independent state legislature theory demands that state courts refrain from exercising oversight of a state’s election rules.
As we know, the court ruled in favor of Bush by a narrow five-to-four vote. The recount stopped, although it based its ruling on the 14th Amendment’s equal protection clause — not the independent state legislature theory. Three justices in a concurrence, however, led by Chief Justice William Rehnquist, embraced the theory.
In the 2020 election, the Pennsylvania state supreme court ruled that requiring mail-in ballots to be received by Election Day violated voters’ rights during a pandemic. The law said that ballots had to be postmarked by 8:30 pm on Election Day. The court extended the deadline by three days.
In their appeal to the Supreme Court, Pennsylvania lawmakers claimed that the Constitution’s elections clause gave them the exclusive right to determine how presidential elections would run. In a one-line statement, the court denied the appeal.
A great deal of the issue turns on the meaning of “legislature” in the two constitutional provisions. From an originalist perspective, the word did not merely refer to the lawmaking state assemblies. Legal historian Hayward Smith writes that the term did not exempt lawmaking from judicial oversight: “The Founding generation understood that ‘legislatures’ would be subject to substantive state constitutional restrictions as well as constitutionally mandated lawmaking procedures.”
So far, the U.S. Supreme Court has gotten it right. State supreme courts have the authority to oversee state legislatures when they overstep their authority to protect citizens’ voting rights. But the door was left slightly ajar, as Justice Brett Kavanaugh noted in his concurrence. He partially adopted the Rehnquist view expressed in his Bush v. Gore opinion. Quoting Rehnquist, Kavanaugh wrote that the duty of the Supreme Court is to review a state court’s ruling on election law to determine whether the court “impermissibly distorted” state law “beyond what a fair reading required.”
The next case reviewing a challenge to the independent state legislature theory may well embed it in a presidential election scenario. It may allow state lawmakers to overrule the will of the people and award their state’s electoral votes to the loser. As Judge Luttig put it, “to be forewarned is to be forearmed.”
Jack Fruchtman, who lives in Aquinnah, is preparing a fourth edition of his “The Supreme Court and Constitutional Law.”