Our conservative Supreme Court stands ready to allow states to legally steal presidential elections by blessing a right-wing legal theory called independent state legislature doctrine. It is not an overstatement to say that this case could completely upend elections and erase the power of our votes for president.
This case could completely upend elections and erase the power of our votes for president.
The independent state legislature doctrine, really more of a theory, relies on two portions of the Constitution: the elections clause and the presidential electors clause. The elections clause provides that state legislatures determine the “Times, Places, and Manner” of federal elections. The presidential electors clause provides that state legislatures decide how to appoint electors to send to the Electoral College. Those who support this theory argue that the word “legislatures” in both clauses can only mean state lawmakers, that is, not the broader group of government officials, including governors, state judges and state secretaries of state, who are involved in lawmaking.
If the court concludes that, contrary to centuries of understanding, only state lawmakers can make decisions about federal elections and how to appoint electors, then that would mean that state courts cannot review those decisions, even if they patently violate a state’s constitution. State lawmakers’ decisions would be insulated from state judicial review. Only federal judges could second-guess the decisions state lawmakers made regarding federal elections and the appointment of electors, and then only on federal legal issues.
What are some decisions that state lawmakers might want to make without anyone in the state government allowed to check them? They could make it harder to vote by making it more difficult to register, by reducing the number of polling places, by eliminating early voting and by reducing or eliminating voting by mail.
Separately, lawmakers in states such as Arizona, California and Colorado could abolish the independent redistricting commissions that draw state and federal district lines in their states and then draw their own lines. And as long as they are drawing their own district lines, they could then gerrymander them to favor the party in power. Gerrymandering leads to undemocratic outcomes such as Republicans making up slightly less than half of registered voters in a state but winning 70% of congressional districts. That is not an unrealistic example. In fact, it comes straight from North Carolina, where state lawmakers, who lean Republican, drew congressional district lines that were so lopsided that the North Carolina Supreme Court, which leans Democratic, concluded that they violated the state constitution. The North Carolina trial court adopted new congressional district lines drawn by a panel of redistricting experts. The Republican lawmakers sued, claiming that the judges lacked the power to redraw districts and that only they had that power.
This doctrine, taken to its logical conclusion, could allow state lawmakers to legally steal presidential elections.
The fact that the court decided to take this case and could rule in favor of those pushing the independent state legislature doctrine, or theory, is enraging and perhaps the height of hypocrisy. Way back in 2019, in an opinion written by Chief Justice John Roberts, the Supreme Court ruled that it had no role in deciding questions regarding partisan gerrymandering. But it told us not to worry, because state courts could still police those issues and protect voters’ rights from partisan overreach. Roberts was joined in his opinion by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. Since then, however, Thomas, Alito and Gorsuch have signaled their openness to the independent state legislature theory. The independent state legislature theory coupled with the court’s 2019 decision, essentially means neither federal nor state judges could police partisan gerrymandering.
Even more significantly, this doctrine, taken to its catastrophic and logical conclusion, could allow state lawmakers to legally steal presidential elections. Let’s imagine that in 2024, Florida residents vote to re-elect President Joe Biden. This has always meant Florida’s 30 Electoral College votes would go to Biden. But maybe the lawmakers there would want the Republican challenger to win. The lawmakers could decide not to certify the election results and instead submit their own slate of electors to the Electoral College who would vote for that Republican. By pure luck and coincidence, this is pretty damn close to the plan espoused by former President Donald Trump and his supporters in their attempt pilfer the 2020 election. Federal courts could still play a role in such a scenario, but that merely means we are allowing a 15 car pileup, but there may be an ambulance available.
The independent state legislature case that the Supreme Court has agreed to hear will be argued at some point during its term that begins in October and decided by the end of June 2023: that is, in plenty enough time for the 2024 presidential election.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist.