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Voting rights activists gather for a rally outside the White House October 19, 2021 in Washington, DC. People of American Way (PFAW) held a rally on "No More Excuses: Voting Rights Now." (Photo: Alex Wong/Getty Images)

How the Radical 'Independent State Legislature Theory' Could Destroy US Democracy

If the Supreme Court turns this fringe notion into law, there will be crushing consequences for American voters and our multiracial democracy.

The follow­ing is adap­ted from oral testi­mony given Thursday before the United States House Commit­tee on Admin­is­tra­tion.

As you know, the Supreme Court agreed to hear Moore v. Harper, a case in which some North Caro­lina legis­lat­ors have asked the Court to embrace the so-called inde­pend­ent state legis­lature notion. This is the radical claim ("theory" is too gener­ous a term) posit­ing that the Consti­tu­tion removes the normal checks on state legis­latures when they regu­late federal elec­tions.

Even if the Court embraces this radical notion, Congress can thwart many of its worst consequences.

You've already heard that this claim is wrong. Consti­tu­tional text, Amer­ican history, Supreme Court preced­ent, sound policy, and common sense all refute the idea.

I'll focus on the crush­ing consequences for Amer­ican voters and our multiracial demo­cracy if the Supreme Court turns this fringe notion into law. Here are four examples of what this idea could allow.

First, the notion would green­light partisan gerry­man­der­ing of congres­sional districts.

  • For instance, a state legis­lature could draw an extreme partisan gerry­mander without consequence—some­thing that state courts would other­wise strike down as illegal under the state consti­tu­tion.
  • That's just as back­wards at it sounds: state lawmakers could viol­ate their own consti­tu­tions.
  • Redis­trict­ing commis­sions in up to nine states could become defunct.
  • And fair repres­ent­a­tion could become more diffi­cult, even impossible.
  • That's because the Supreme Court already took federal consti­tu­tional protec­tions off the table, ruling in the Rucho case that federal courts cannot stop partisan gerry­man­der­ing.
  • The Court offered up state courts as the answer. But if state courts can't stop partisan gerry­man­der­ing, the tactic will thrive.

Secondthe radical claim would remove constraints on voter suppres­sion.

  • For example, a legis­lature could elim­in­ate early voting—even if it's guar­an­teed in the state consti­tu­tion, and even if the people enacted it by ballot initi­at­ive.
  • The state's governor would be unable to veto such a decision. And a state court would be power­less to stop it.
  • Yes, voters could bring their case to federal court. But the Supreme Court has gutted the most power­ful provi­sions of the Voting Rights Act and under­cut other federal voter protec­tions.

Third, the notion would create elec­tion chaos, disen­fran­chising voters and over­whelm­ing elec­tion offi­cials. 

  • The claim would undo hundreds of elec­tion laws enshrined in state consti­tu­tions, enacted by ballot initi­at­ive, and imple­men­ted through admin­is­trat­ive rules.
  • Policies enacted through direct demo­cracy—like mail voting, same day regis­tra­tion, and even voter ID—could be wiped off the books for federal elec­tions.
  • Voters could be blocked from voting for candid­ates for federal office, even if they are eligible and were prop­erly registered to vote.
  • A range of other policies estab­lished in state consti­tu­tions, rather than legis­la­tion, would be voided. The right to cast a secret ballot, for instance, is guar­an­teed in 44 state consti­tu­tions.
  • Elec­tion offi­cials would be forced to admin­is­ter a two-tiered system, with differ­ent policies for state and federal elec­tions. It will be unclear which rules actu­ally apply. And if elec­tion offi­cials don't know what the law is, voters surely won't.

Fourth, the notion would remove crit­ical checks against elec­tion inter­fer­ence and sabot­age. 

  • The radical idea could enable legis­latures to manip­u­late elec­tion outcomes. For instance, they could enact arbit­rary rules for count­ing votes.
  • The claim would invite legal chal­lenges asking federal courts to throw out ballots cast in reli­ance on state consti­tu­tions, laws enacted by ballot initi­at­ive, or policies imple­men­ted by elec­tion offi­cials.

To be clear, the inde­pend­ent state legis­lature claim is not a license to coup. Federal law prohib­its state legis­latures from over­turn­ing the results of an elec­tion. But the notion would open the door to anti­demo­cratic shenanigans. And even failed efforts to manip­u­late elec­tions erode trust—and, ulti­mately, parti­cip­a­tion—in our demo­cracy. 

Even if the Court embraces this radical notion, Congress can thwart many of its worst consequences. The Elec­tions Clause, the very same consti­tu­tional provi­sion that activ­ists seek to weapon­ize against demo­cracy, gives Congress the power to enhance and protect voting rights and ensure fair repres­ent­a­tion.

That's why, regard­less of how the Supreme Court rules, I urge you to revisit and pass the Free­dom to Vote: John R. Lewis Act. The bill would set national stand­ards for voting access, prohibit partisan gerry­man­der­ing, and add federal protec­tions against elec­tion inter­fer­ence and sabot­age. This legis­la­tion is crit­ic­ally needed.

© 2021 Brennan Center for Justice
Eliza Sweren-Becker

Eliza Sweren-Becker

Eliza Sweren-Becker serves as counsel in the Democracy Program at the Brennan Center for Justice, where she focuses on voting rights and elections. Prior to joining the Brennan Center, Sweren-Becker was a litigation associate in private practice at Boies Schiller Flexner LLP.

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