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The US Supreme Court is on a tear remaking the way Americans live.
It cut back states’ abilities to regulate the carrying of guns.
It gave states the power to outlaw abortion.
It undercut the power of the Environmental Protection Agency and other government agencies to regulate polluters.
Next up could be a complete re-imagining of American democracy, where, if a legal theory based on the word “legislature” is adopted by the Supreme Court, state lawmakers could, in theory, have new power to ignore voters and pick presidents.
The conservative-majority court has agreed to hear a North Carolina case that pits the state’s GOP-controlled legislature against state courts that threw out congressional maps they said were gerrymandered.
Here’s what to know:
What’s the independent state legislature theory?
The Constitution refers specifically to the “legislature” in each state determining the time and manner of federal elections.
Backers of the “Independent State Legislature Claim” argue that since the Constitution doesn’t name other parts of state government – including courts – they should have no power to check the legislature on the subject of federal elections. Even if a state’s constitution or laws give power to courts or a governor, the theory argues legislatures should be able to ignore them.
The seeds for this idea, according to the liberal-leaning Brennan Center for Justice, come from a concurring opinion by then-Supreme Court Chief Justice William Rehnquist in the Bush v. Gore decision that settled the 2000 presidential election.
Why is this coming up now?
The congressional map drawn by North Carolina’s GOP-controlled legislature to benefit Republicans was thrown out by the state Supreme Court earlier this year. While the state is politically split, the legislature’s map would likely have resulted in Republicans picking up two congressional seats. The state courts ultimately adopted a more even map drawn by experts that could result in Democrats gaining a seat in North Carolina. Republican lawmakers in the Tar Heel State want the US Supreme Court to allow them to ignore the state court and use the GOP-friendly map for future elections after this year’s midterms.
What’s the most-extreme scenario?
Here’s what CNN’s Ariane de Vogue and Gregory Krieg wrote: “If the theory is embraced by the Supreme Court’s conservative supermajority, critics say, rogue legislators would be freed to act without any constraints by courts in their states.”
The Washington Post editorial board pointed out Tuesday that the Supreme Court, which has already said it lacks authority to address gerrymandering, may now take that power away from state courts as well. The end result, according to the Post: “…state legislatures — their own makeup the result of heavy gerrymandering — could contort congressional districts at will to ensure one party has the advantage, playing with how much every individual’s vote really counts.”
What’s the argument in favor?
The text of the Constitution matters, even if this new interpretation unsettles US democracy.
“The Elections Clause does not give the state courts, or any other organ of state government, the power to second-guess the legislature’s determinations,” the Republican lawmakers argue in the case.
Here’s an extremely detailed scholarly article friendly to the idea of independent state legislatures by Florida State law professor Michael Morley.
Why is this theory gaining traction now?
Evan Bernick, a law professor at Northern Illinois University College of Law, has written a new book focused on the 14th Amendment. He told me in an email that this theory “taps into a tradition that is (unfortunately) as old as the Founding but has taken on new life in recent years. This is a tradition in which only a subset of the people are allowed to rule and the rest are disregarded as somehow less than truly ‘the people.’”
Who would benefit if the Supreme Court adopts this doctrine?
Republicans would. While Democrats currently hold slim majorities in the federal legislature, Republicans have a clear advantage at the state level, where they control more than 60% of state legislatures.
What does the Constitution mean by ‘legislature?’
I talked to Vikram Amar, dean of the law school at the University of Illinois. He recently published an article along with his brother, Akhil Amar of Yale Law School, dissecting and trashing the notion of independent state legislatures as “rubbish.”
He argued that conservative justices who view themselves as originalist interpreters of the Constitution’s text cannot legitimately foist this new doctrine, which he refers to in shorthand as “ISL,” onto the country.
Plus, the people writing the Constitution had a more expansive view of the term “legislature” that’s in line with allowing courts to protect the rights of voters in their states.
“It’s inconsistent with the practices of state legislatures and state constitutions in 1787, and it’s flouting 100 years of clear precedent from 1916 all the way to 2019,” Amar said of ISL.
Legislatures ignoring courts. Why does this sound familiar?
Supporters of former President Donald Trump riffed on the doctrine as they proposed GOP-controlled legislatures in key states ignore the 2020 presidential election results and simply appoint their own slate of electors to do an end-run around the election he lost and keep Trump in the White House. Amar referred to this plan as “ISL on steroids.”
But that could be reality if the Supreme Court were to fully embrace ISL. Amar threw out a hypothetical where a legislature simply decided before an election it would not be bound by the voters and then put forward its own slate of electors.
“If you buy ISL, they can do that,” Amar said. “If you don’t buy ISL, then they probably can’t do that because in most states, the state constitution will say that the electors are selected by the people.”
Do voters often disagree with their legislatures?
You could argue that since legislatures are picked by voters, they should not be encumbered by state courts in the presidential selection process. Courts, after all, are less accountable to voters than legislators.
On the other hand, voters have routinely voted for a president other than the party that controls their legislature. President Joe Biden won the White House because multiple states with GOP-controlled legislatures in 2020 – Georgia, Arizona, Pennsylvania, Michigan and Wisconsin, for example – picked him over Trump.
What is the role of gerrymandering in all of this?
Amar argued state legislatures are heavily gerrymandered, often giving one party more control over a state than it has support among citizens.
“You may have the hearts and minds of 40% of the state, but if you currently control the legislature, you can distribute that 40% of support you have so that you win 60% of the districts reliably,” he said.
Is this the new form of democracy?
A complete re-interpretation of the Constitution to give legislatures superpower over elections would be extreme. But there is an increasingly open opposition to the idea that voters should be calling the shots. Politicians seem to have no problem favoring the idea that only voters they agree with should be calling the shots and voters they disagree with should be blocked.
In a somewhat related vein, Senate Minority Leader Mitch McConnell, who effectively created the conservative Supreme Court majority, has essentially promised a Republican-controlled Senate would not confirm a Supreme Court nominee for a Democratic president chosen by voters.
What will the court do with the independent state legislature theory?
CNN’s de Vogue noted in March that four Supreme Court justices – Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh – “expressed some sympathy in three different disputes for the notion that state courts had overstepped their boundaries when resolving lawsuits about rules for elections.”
Amar told me Kavanaugh has been notably quiet more recently.
Plus, there is some question about the views of the newest conservative justice, Amy Coney Barrett.
What is for sure is that the high court will be directly considering this theory in its next term.