The Supreme Court Will Consider A 'Dangerous' Theory That Could Break American Democracy

The independent state legislature theory is “historically implausible,” “antithetical” to the Constitution and rooted in an “utterly discredited” and “phony” historical document.

The Supreme Court will hear arguments in a redistricting case on Wednesday, and it is no arcane dispute about district lines or partisan balance. North Carolina Republicans have asked the court to embrace a fringe legal theory with no basis in American history that would upend American democracy, eviscerate voting rights, make combating partisan gerrymandering impossible and empower anti-democratic election subverters.

Moore v. Harper involves a bizarre legal gambit known as the independent state legislature theory. It argues that the elections clause of the U.S. Constitution provides state legislatures the sole authority to set the “time, place, and manner” of federal elections.

Its adoption would place legislatures outside of the purview of state constitutions, effectively ending state court judicial review of election laws or congressional district maps. There would also be no gubernatorial veto of such laws. Election administration would effectively short-circuit, as every little change would need to be approved by a legislature. And citizen-backed ballot initiatives on election or redistricting law would no longer be allowed.

Political figures and legal scholars from across the political spectrum, including former Attorney General Eric Holder, conservative Federalist Society co-founder Steven Calabresi, retired conservative judge Michael Luttig, ex-Republican National Committee lawyer Ben Ginsburg, current Democratic Party lawyer Marc Elias, former Trump administration CISA head Chris Krebs and a raft of current Democratic Party and former Republican Party lawmakers and judges have joined hands in opposition to the theory.

The theory is “antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution,” Luttig argued in a piece in The Atlantic.

Beyond these political figures, the theory is widely opposed by the people who actually run elections and engage with state election law across the country. The independent state legislature theory would “wreak havoc” on elections and undermine “election integrity and voter confidence” in the conduct of democratic elections,” current and former election administrators argued in a friend of the court brief.

“Should this succeed it would make it extremely difficult, if not impossible, to make decisions to regulate elections,” Al Schmidt, a Republican former vice-chair of the Philadelphia Board of Elections, said.

Even more worrisome, election law scholars warn that empowering state legislatures as the only arbiter of election law could lead to further anti-democratic acts, in the mold of former President Donald Trump’s attempts to subvert the 2020 election results.

“[T]his Court’s potential embrace of an expansive ‘independent state legislature’ theory could provide a pretext for state legislatures to submit alternative slates of electors should members of the legislature be unhappy with the choice of their state’s voters for President,” Rick Hasen, an election law expert at UCLA School of Law, wrote in a friend of the court brief.

“This is a very, very dangerous theory,” Holder told CBS News on Sunday. “It would put our system of checks and balances at risk.”

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh have all indicated support or sympathy for the independent state legislature theory despite it having no grounding in history or legal thought.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh have all indicated support or sympathy for the independent state legislature theory despite it having no grounding in history or legal thought.

A Partisan Fight Over Redistricting

The case comes before the court following more than a decade of attempts by North Carolina Republicans to draw hyper-partisan congressional maps following the decennial census in both 2010 and 2020.

Following the 2010 census, Republicans in the state legislature drew a congressional map with nine GOP seats and four Democratic seats despite the state being nearly evenly divided between the two parties. A later rewrite of the maps made it 10 GOP seats and three favoring Democrats. The Supreme Court rejected this map as an illegal racial gerrymander in 2016 and so the state legislature redrew it only using partisan affiliation information.

The 2016 redraw led to a lawsuit challenging the new map as an illegal partisan gerrymander, but the Supreme Court ruled in the 2019 Rucho v. Common Cause case that federal courts have no role to play in adjudicating claims of partisan gerrymandering.

With federal courts and the U.S. Constitution out of the picture, “state statutes and state constitutions can provide standards and guidance for state courts to apply,” Chief Justice John Roberts wrote.

After the GOP-led legislature drew another heavily partisan map following the 2020 census, Democrats and nonprofits challenged it in the state courts, as the Rucho decision indicated they should. The North Carolina Supreme Court invalidated the map as a partisan gerrymander in February 2022 and ordered a trial court to select a new, less partisan map for the 2022 elections.

North Carolina House Speaker Tim Moore then filed a suit in the federal courts arguing that the court imposed map should be tossed because state courts, like federal courts, should have no role to play in judging claims of partisan gerrymandering, or any election law passed at all. He argued the federal constitution’s elections clause use of the word “Legislature” meant the state legislature and only the state legislature. This was a request for the court to embrace the independent state legislature theory.

The theory arose in the controversial 2000 Bush v. Gore case when then-Chief Justice William Rehnquist endorsed it in a concurrence joined by then-Justice Antonin Scalia and current Justice Clarence Thomas. It reemerged in force in the fall of 2020 when Republicans in North Carolina, Pennsylvania and Wisconsin used it to argue for the Supreme Court to block election law changes adopted during the COVID-19 pandemic. The court declined to do so, but Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Thomas all showed an interest in either accepting the theory or hearing a case on it. North Carolina’s challenge presented that opportunity and these four justices took up the case, even though the North Carolina legislature specifically authorized the state supreme court to adjudicate gerrymandering disputes in exactly the manner they now wish to invalidate.

Anti-Majoritarianism And Election Subversion

Perhaps the most glaring and stunning result that would immediately occur were the court to approve the theory is the complete reversal of its decision in Rucho just three years later. In Rucho, the court said that federal courts could not police claims of partisan gerrymandering, and so state courts and state constitutions must do so instead. But the independent state legislature theory says that state courts and state constitutions must also play no role. This would mean that there would be absolutely no check on partisan gerrymandering by state legislatures.

“You’d have no court in the country that could adjudicate these claims,” Eliza Sweren-Becker, counsel for the Brennan Center for Justice, a nonprofit that opposes the independent state legislature theory, said.

Conservative lawyer John Eastman hoped to use a version of the independent state legislature theory to overturn the results of the 2020 election.
Conservative lawyer John Eastman hoped to use a version of the independent state legislature theory to overturn the results of the 2020 election.
Tom Williams via Getty Images

This would enable already gerrymandered state legislatures to impose the most extreme partisan gerrymanders on their congressional delegations imaginable. This would turbo-charge the possibility of non-majoritarian rule in Congress. Some states, like North Carolina, Ohio and Wisconsin, already have wildly unrepresentative state legislatures despite having more closely split electorates. The adoption of the independent state legislature theory would only undermine the principle of majority rule that should underlie any republican form of government.

It could also lead to further efforts at subverting elections through attempts to overturn the will of the voters in presidential elections through the electoral college.

When Trump attempted to overthrow the elected government of Joe Biden through a subversion of the Electoral College, he did so using a false theory thought up by insurrectionist lawyer John Eastman that used the same independent state legislature theory but applied to the section of the constitution governing the appointment of presidential electors. He argued that state legislatures should appoint their own alternative slates of electors in contradiction of the actual vote of state residents. This is all part of an ongoing criminal investigation.

The issues raised in Moore v. Harper will not lead to the endorsement of Eastman’s false theories and the legal authorization of election subversion. There are laws and other constitutional provisions that keep Eastman’s preferred form of anti-democratic election subversion illegal even if the court accepted the independent state legislature theory.

The big problem that arises is that partisan state legislatures could use the confusion around this issue to engage in election subversion by submitting alternative electors anyways.

“Although a legislature’s attempt to appoint alternative slates of electors in these circumstances would violate both the Constitution and federal statutes, those seeking to undermine free and fair elections in the United States would only be further emboldened by a decision of this Court embracing Petitioners’ expansive view of state legislative power in federal elections,” Hasen argues in his brief.

It is no surprise that the same people who tried to overturn the 2020 election, including Eastman, Trump aides Stephen Miller and Mark Meadows, Trump’s former national security adviser Lt. Gen. Mike Flynn and Trump lawyer Cleta Mitchell filed briefs in support of the independent state legislature theory.

‘Historically Implausible’

The key question in Moore v. Harper is how the court defines the word “Legislature” in the Election Clause found in Article I of the Constitution.

“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,” the clause states.

The GOP petitioners argue in support of the theory that “Legislature” must mean the state legislature and only the state legislature, despite the word’s definition at the time and its interpretation ever since as meaning the whole of government. Their reading of this clause places state legislatures outside and above their respective state constitutions on the one issue of election law. They do not seek to use this definition of “Legislature” anywhere else in the Constitution.

The problem with their argument is that it has no basis in the history of the Constitution’s adoption and it makes no sense when considering how the authors of the Constitution viewed the idea of legislative supremacy.

“There is no evidence that anyone at the time expressed the view that Petitioners now espouse; nor would anyone have attempted to disprove an idea that had never been broached,” 10 historians of the founding era wrote in a friend of the court brief. “Petitioners’ interpretation is also historically implausible in view of the framers’ general fear of unchecked power and their specific distrust of state legislatures. There is no plausible eighteenth-century argument to support Petitioners’ view.”

“Every single state that adopted a constitution in the critical time period (late 1777 through 1793) or that otherwise squarely addressed the issue — nine states in all — openly contradicted Petitioners’ vision. No state embraced this vision,” originalist legal scholars Akil Amar, Vikram Amar and Calabresi wrote in a brief to the court.

“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.”

- U.S. Constitution, Article 1, Clause 4

The adoption of the federal constitution came, in part, in response to controversies arising from state legislatures having too much power under the Article of Confederation, the ten historians argue. This objection to state legislative supremacy led to a massive effort to write the federal and state constitutions to constrain state legislatures.

“American political leaders of the revolutionary era had a choice, they did not choose to empower freestanding legislatures as the basis of government,” the historians wrote. “Instead, they wrote individual state constitutions in which the legislature’s authority was subordinate to, and derived from, the authority of the state constitution, which in turn, received its authority from the people. Far from being independent, legislatures under the first state constitutions had no separate existence apart from the constitutions which created them.”

As it relates to the Elections Clause itself, no one involved in the constitutional ratification debate “ever implied that the Clause granted state legislatures unique authority to regulate congressional elections unconstrained by their state constitutions or the legal powers exercised by other branches of government,” the historians write. Not the Anti-Federalists who opposed the constitution, nor the Federalists who supported it.

North Carolina Republicans attempt to introduce an argument during ratification supporting their claims that the founding generation intended the Elections Clause to enshrine the independent state legislature theory by pointing out that South Carolina founder Charles Pinckney’s plan for a federal constitution and the alleged changes to it supports their theory.

“[T]he earliest draft of the Clause, proposed in the Philadelphia convention as part of the Pinckney Plan, would have [assigned responsibility to the States],” the petitioners in the case argue. “Crucially, however, the Committee of Detail deliberately changed the Constitution’s language to specify that state legislatures were to exercise that power, not any other state entity and not the state as a whole.”

Their argument rests on the belief that the Pinckney Plan represented the original constitutional language that was then changed to use the word “Legislature,” which they interpret as meaning the legislature and not the whole law-making body as was understood at the time.

The only problem: the Pinckney Plan they cite was not introduced during the ratification and has since been deemed “utterly discredited,” for over a hundred years.

During the ratification debates, South Carolina’s Charles Pinckney submitted his own plan for a federal constitution. There is no record of this plan and little evidence that it was even discussed during the Constitutional Convention. It did not appear in any written form until 1818 when Pinckney submitted it to John Quincy Adams when he was gathering documents from the convention for publication. And then James Madison and Rufus King disputed its veracity, with Madison arguing that there is “irresistible evidence that the plan as sent to Adams was never introduced,” at the convention.

The Pinckney Plan is “famously misleading document” that the petitioners use “to create an incorrect drafting history of the Elections Clause,” the historians argue.

“This portion of the Petitioner’s argument rests on a catastrophic misreading of the documentary record and a deliberation that is entirely imaginary,” the historians argue.

“Petitioners actually lead their brief with this fake and call this sham precursor to Article I, Section 4 “crucial[]” to their argument,” the Amars and Calabresi wrote.

The North Carolina Republicans “grossly exaggerate” Pinckney’s importance by citing his “bogus document,” they continue. This effectively makes the argument presented to the court in favor of the independent state legislature theory “phony.”

In conclusion, the founding era historians argue that, “There is no positive story one could tell—or even invent—to suggest the framers would have intended the Elections Clause to have so narrow and restrictive a meaning.”

‘Election Chaos’

Beyond the fact that the independent state legislature theory has no basis in the history of the country’s founding, or in the practice of election law over the ensuing 250 years, a raft of election administrators and election law scholars wrote to the court to explain the absolute chaos that would ensue if the court adopted the theory.

“What they want will mean election chaos,” Sweren-Becker said.

First, the adoption of the independent state legislature theory would unravel around 20 voter-enacted election laws, including non-partisan redistricting processes set up by citizen-backed ballot initiatives in 13 states and ranked-choice voting in Alaska and Maine, while sidelining 200 state constitutional provisions meant to protect the right to vote, the right to a secret ballot and the conduct of “free and fair elections,” according to a report by the redistricting reform group Represent.Us.

The Constitutional Convention did not debate the independent state legislature theory in 1787 because no one present would have thought of empowering state legislatures outside of their state constitutions.
The Constitutional Convention did not debate the independent state legislature theory in 1787 because no one present would have thought of empowering state legislatures outside of their state constitutions.
Bettmann via Getty Images

It would also overturn hundreds of state court decisions governing election law and thousands of regulations set by boards of elections, local election administrators and consent decrees governing everything from voter registration rules to polling locations to the procurement of voting machines.

Second, since the independent state legislature theory would only give state legislatures supremacy over federal elections, state and federal elections would then operate under different rules.

“[A]ttempting to administer concurrent federal-state elections under different rulebooks along with the inevitable increases in litigation would be an election administrator’s nightmare,” a bipartisan group of current and former election administrators wrote in a brief to the court. “Errors would be inevitable, administrative and training costs would soar, and the public’s confidence in our elections would dive.”

And, third, the closure of the state courts to election law litigation would lead to a massive increase in litigation over detail, major and minor, of election law in the federal courts.

“[E]ach routine state judicial or administrative act of gapfilling or interpretation would become the basis for a federal constitutional lawsuit based upon some alleged discrepancy between the statutory text and the interpretation and implementation of that text,” UCLA’s Hasen wrote in his brief to the court.

The federal courts are already burdened with an ever-increasing amount of election litigation. That litigation continues to drive public support for elections down, especially when it is taken advantage of and lied about by high-profile actors like former President Trump and the Republican Party.

With four conservative justices already on the record as supportive or sympathetic to the independent state legislature theory, the outcome of the case could rest on Justice Amy Coney Barrett. Barrett is the only conservative justice who was not party to the October 2020 decisions on the theory and, therefore, has no known public opinion on the issue. Roberts joined the court’s three liberals in March to reject emergency appeals from North Carolina and Pennsylvania seeking approval of the theory.

The court hears arguments at 10 a.m. on Wednesday, Dec. 7.

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