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

Second, the 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.