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independent state legislature theory
SCOTUS Already Scrapped One of Trump's Defenses to Election Interference Charges
The independent state legislature theory is already spent. It is no defense for the grave misconduct that we witnessed in 2020.
Aug 10, 2023
Soon after news broke that Donald Trump had been indicted for trying to overturn the 2020 presidential election, his defenders took to the airwaves to offer legalistic excuses for his actions. Among the defenses they’ve floated is the idea that state legislatures have the authority to reject the will of voters. But this defense is nonsense, as the Supreme Court just underscored in June.
Trump is charged with perpetrating a conspiracy made up of many interconnected schemes, all aimed at overturning the legitimate results of the election. One of those schemes involved trying to convince state legislatures to nullify popular votes that Trump lost and instead to submit to Congress their own slates of electors claiming (falsely) that Trump had won.
Trump attorney John Lauro argued on CNN that this scheme was not improper because “state legislatures have the ultimate ability to qualify electors.” According to Lauro, “Under Article II, Section 1, Clause 2 [of the U.S. Constitution], the actual responsibility for qualifying electors is in the state legislatures.”
This purported defense — a version of the so-called “independent state legislature theory” — is based on a misreading of the Constitution’s Elections and Electors Clauses. Those clauses direct states to regulate federal elections — including the voting process and the manner of appointing presidential electors — while empowering Congress to override state policy and enact federal election laws itself.
Proponents of the independent state legislature theory claim that these provisions free state legislatures from state-level checks and balances when they make rules for federal elections. Or, as Mr. Lauro argued, the Electors Clause would permit state legislatures to appoint presidential electors in whatever manner the legislators see fit, even if that means overriding the vote in their states, their state’s legal requirements for selecting electors, and other guarantees in state constitutions — not to mention federal statutory and constitutional law.
That argument is dead on arrival. There is no such thing as an “independent state legislature” and there never has been. The Supreme Court affirmed as much just five weeks before the indictment, when it flatly rejected the independent state legislature theory in Moore v. Harper.
In that case, several state legislators asked the Supreme Court to approve their extreme partisan gerrymander of North Carolina’s congressional map, notwithstanding its flagrant violation of the North Carolina Constitution. A broad cross-partisan coalition called out this request for the sham it was. And the Supreme Court agreed. Writing for a six-justice majority that included two Trump appointees, Chief Justice John Roberts explained: “The legislature acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the legislature’s exercise of power.”
The Court reaffirmed over a century of precedent rejecting the independent state legislature theory, noting that no constitutional provision has ever given a state legislature the authority to make election laws in a manner outside of what the state constitution allows.
While Moore was a congressional redistricting case — and thus involved the Elections Clause — that provision and the Electors Clause are read in lockstep. And so, whether the scheme involves congressional district lines or presidential electors, no state legislature is “independent.” The gerrymanderers in Moore could no more ignore their state constitution when redistricting their state than legislators could ignore bedrock due process protections and existing state law dictating how electors are chosen and must cast their votes.
Trump will undoubtedly exhaust all avenues in attempting to ward off liability for his interference in the 2020 election. The independent state legislature theory, though, is already spent. It is no defense for the grave misconduct that we witnessed in 2020, no matter what Trump’s lawyers and allies claim.
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Celebrating the Death of the 'Independent State Legislative Theory'
The U.S. Supreme Court should never have heard the case Moore vs. Harper, but there is now a more or less perfect record that no court has ever upheld this fringe theory.
Jun 28, 2023
Sanity prevailed at the U.S. Supreme Court yesterday. In Moore v. Harper, six justices issued a near total rejection of the “independent state legislature theory” — a bogus and ahistorical reading of the Constitution that would have stripped important checks and balances out of federal election administration and opened the door wide to extreme partisan gerrymandering and voter suppression.
The story of this case begins in North Carolina, an evenly divided state politically. During the 2020 redistricting cycle, the state legislature drew a ludicrously gerrymandered congressional map that would have produced 10 Republican and 4 Democratic House members. The state supreme court ruled that the map violated the free elections clause of the state constitution and ordered the legislature back to the drawing board.
Members of the North Carolina legislature appealed directly to the U.S. Supreme Court. They did not contest the state court’s conclusion that the map was gerrymandered. Rather, they argued that the state court had no authority to review the legislature’s actions — that the Elections Clause of the U.S. Constitution grants state legislatures near absolute authority over federal election administration and that neither governors, state judges, nor state constitutions can review the legislature’s actions. In other words, when it comes to federal election administration, there are no checks and balances at the state level.
This was as absurd as it sounds. It lacked any grounding in logic, precedent, structure, or history. For more than 200 years, no one ever read the Elections Clause this way. Indeed, from the very beginning of the republic, governors, state courts, and state constitutions participated in federal election administration. The historical case for the theory is so weak that proponents cited a draft of the Constitution that turned out to be a 19th-century fraud.
The independent state legislature theory would have utterly upended our system of elections. According to Brennan Center research — which was submitted to the Supreme Court for consideration in the case — adopting the theory would have undermined hundreds of state constitutional provisions, hundreds of state court decisions, and more than 650 delegations of authority by state legislatures to other state officials to administer federal elections.
On Tuesday, the justices killed off the independent state legislature theory. The Court reviewed the lengthy history of judicial review of election administration at the state level. It recognized that around the time of the founding, some states explicitly granted veto power over the redrawn maps to state governors. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” concluded Chief Justice John Roberts, writing for the majority.
Roberts accused Justice Clarence Thomas — often described as the Court’s foremost originalist — of “simply ignor[ing]” the uninterrupted thread of history and precedent contradicting the independent state legislature theory and of failing to account for the framers’ understanding of the structure of our government. Ouch.
Unfortunately for the people of North Carolina, the Supreme Court’s decision will not restore fairness to their electoral maps. When conservatives won control of the state supreme court in a recent election, the justices overruled their predecessors and reinstated the gerrymandered map. Those maps will remain in place until the next redistricting cycle.
Also, the Court should never have heard the case — there is now a more or less perfect record that no court has ever upheld this fringe theory.
The headline is that checks and balances persist in election administration, and a party that seizes a legislative majority cannot abuse its position to entrench itself in unchecked power. The independent state legislature theory is dead.
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In 'Very Big Deal for the Survival of Our Democracy,' SCOTUS Rejects Fringe Legal Theory
By ruling against the independent state legislature theory, said one activist, "the U.S. Supreme Court made clear that state courts and state constitutions should serve as a critical check against abuses of power by legislators."
Jun 27, 2023
Democracy defenders across the United States on Tuesday breathed a collective sigh of relief after half of the U.S. Supreme Court's right-wing supermajority joined with the three liberal justices to reject a "dangerous" legal theory that could dramatically impact federal elections.
"The Supreme Court took an important and crucial step today in protecting our system of checks and balances," said Hilary Harris Klein, senior counsel for voting rights at Southern Coalition for Social Justice. "Today's decision will ensure that voters will continue to have the full protection of state constitutions against harmful and anti-democratic voter suppression and election manipulation."
Oral arguments for Moore v. Harper in December had some campaigners worried that at least five justices would embrace the independent state legislature theory (ISLT), whose proponents claim the U.S. Constitution only empowers state legislatures to regulate federal elections, without checks from state constitutions, courts, or governors.
However, in the case—which stemmed from a fight over North Carolina's congressional map—Chief Justice John Roberts, fellow conservatives Amy Coney Barrett and Brett Kavanaugh, and liberals Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor rejected the ISLT. Right-wing Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented.
The elections clause of the U.S. Constitution "does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections," Roberts wrote for the majority. "When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review."
"When a state legislature carries out its federal constitutional power to prescribe rules regulating federal elections, it acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the federal Constitution," he continued. "Both constitutions restrain the state legislature's exercise of power."
"Although the elections clause does not exempt state legislatures from the ordinary constraints imposed by state law, federal courts must not abandon their duty to exercise judicial review," Roberts added. "This court has an obligation to ensure that state court interpretations of state law do not evade federal law."
Both the majority opinion and campaigners pointed to precedent. Fair Elections Center litigation director Jon Sherman said that "for 233 years and counting, no court has ever found that state election laws are unconstrained by state constitutional requirements, because this is a fantasy that is antithetical to our system of government."
Elias Law Group partner Abha Khanna, counsel of record for the plaintiffs, called the 6-3 decision "a resounding victory for free and fair elections in the United States."
The ISLT "is a dangerous, fringe legal theory that has no place in our democracy," Khanna said. "In its most extreme form, the independent state legislature theory could have weakened the foundation of our democracy, removing a crucial check on state legislatures and making it easier for rogue legislators to enact policies that suppress voters and subvert elections without adequate oversight from state court."
The case was argued in the wake of former President Donald Trump—who is seeking the Republican nomination for 2024—and his supporters refusing the accept the results of the 2020 election, which led to the January 6, 2021 attack on the U.S. Capitol. Notably, two of the three Trump-appointed justices, Barrett and Kavanaugh, rejected the ISLT.
While celebrating the new ruling as "a historic victory for the people of North Carolina and for American democracy," Bob Phillips, Common Cause North Carolina's executive director, also looked ahead.
"Today, the U.S. Supreme Court made clear that state courts and state constitutions should serve as a critical check against abuses of power by legislators," he said. "Now, we must ensure our state courts fulfill their duty to protect our freedoms against attacks by extremist politicians."
Campaign Legal Center senior vice president Paul Smith similarly said that "while the Supreme Court's ruling is a victory for democracy, the fight for fair maps in North Carolina and across the country is far from over," and vowed his group "will continue fighting for fair maps so voters can feel confident that they choose their representatives, not the other way around."
Common Cause vice president of programs Kathay Feng highlighted that there is also work to be done at the national level, saying that "now Congress must act and pass long overdue protections for voters, so that we can put an end once and for all to the persistent attempts to undermine and restrict our right to vote."
Since the election chaos of 2020, the U.S. Senate's filibuster rule, right-wing obstructionist Democrats, and Republicans reclaiming control of the House of Representatives have impeded the passage of national voting rights legislation, as GOP state legislators have continued voter suppression efforts across the country.
Still, Senate Majority Leader Chuck Schumer (D-N.Y.) on Tuesday pledged to keep up the fight, quoting the late civil rights icon and Democratic Congressman John Lewis, for whom a key voting rights package is named.
"Today those who support democracy, fair elections and the rule of law can stand a bit taller," Schumer said of the Moore decision. "There is still much work to do to protect American democracy. As John Lewis said, 'Democracy is not a state. It is an act,' which is why Senate Democrats will continue to fight for free and fair elections."
Campaigners in recent years have urged Congress to act on not only voting rights legislation but also Supreme Court reforms.
"Today marks a rare example of our politicized court falling on the right side of history," said Carrol Olinger, Fayetteville director at Action N.C., a Center for Popular Democracy Action affiliate. "This decision was too close of a call, and there was far too much at stake. It is essential to recognize that the need for crucial court reforms remains."
Take Back the Court Action Fund president Sarah Lipton-Lubet agreed. "The fact that this case wasn't laughed out of the court is a sign of how far we have fallen," she said. "Worse, the right-wing justices crowned themselves the ultimate arbiters of future state election disputes. Don't be surprised if we see Bush v. Gore 2.0 in 2024 or beyond."
"What rulings like this one actually highlight is just how afraid Roberts is of the momentum behind Court reform—and how far he'll go to try to quell our power," she added. "The bar for a 'victory' with this court is on the floor. We deserve better. We deserve a judiciary that puts the American people first. And we can only get it if we expand the court."
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