[ Suggestions that the Supreme Court could adopt parts of the
dangerous theory without upending elections are wrong.]
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THERE IS NO ‘LITE VERSION’ OF THE ‘INDEPENDENT STATE
LEGISLATURE THEORY’  
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Eliza Sweren-Becker, Ethan Herenstein
December 6, 2022
The Brennan Center
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_ Suggestions that the Supreme Court could adopt parts of the
dangerous theory without upending elections are wrong. _

U.S. Supreme Court, Photo by Doug Armand

 

By now, word is out about the election-detonating dangers
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by the so-called “independent state legislature theory.” So in
recent months, the theory’s proponents have tried to persuade the
Supreme Court and the broader public that there are more moderate,
less problematic variants of the theory out there. But there’s no
“lite version” of the independent state legislature theory. The
gerrymanderers who put the theory on the Supreme Court’s doorstep
in _Moore v. Harper_
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asking for a radical upending of election law and all the chaos that
comes with it, no matter how they try to soft-pedal it.

_Moore_, which is up for oral argument on Wednesday, has the potential
to turn American elections upside down. The North Carolina legislators
who brought the case to the Court want to restore their extreme
gerrymander of their state’s congressional map. To do so, they’re
asking the Court to mainstream a fringe, ahistorical reading of the
U.S. Constitution that would grant them and other state legislators
near-exclusive authority over federal elections by eliminating the
system of checks and balances that has governed for over two
centuries. If the legislators get their way, governors, state courts,
state constitutions, and even the people themselves could lose their
say in shaping the laws for federal races.

The consequences, as we and others have described
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extreme detail many times before, would be devastating. The theory
wouldn’t just kneecap the nationwide movement against partisan
gerrymandering. It could also eliminate — for federal elections —
state constitutional provisions that protect your right to vote, such
as those that ensure your right to cast an absentee ballot, establish
automatic voter registration, and even guarantee fair elections or
equal protection of the law. In all, the theory could upset more than
170 constitutional provisions, more than 650 state statutes, and
thousands of policies that make elections run smoothly.

No one would want to own these consequences, not even the theory’s
proponents. So they started retreating from the theory as soon as they
raised it, using their briefs to offer the Court a series of purported
compromise positions that would (ostensibly) lead to fewer disruptions
of existing elections practices and rules.

But the legislators’ approach is as mealy-mouthed as it is
incoherent. They propose their compromises and ask for the most
extreme version of their theory in virtually the same breath, never
truly backing away from it. And, at a logical level, the compromises
inevitably lead to the most extreme outcome. That’s because the
theory rests on the radical proposition that state legislatures and
state legislatures _alone_ get to make the rules for federal
elections (save for potential interventions from Congress or the
federal courts). So, even if the gerrymanderers tell the Court that
governors’ vetoes or independent redistricting commissions would be
spared, the theory’s logic would inevitably eliminate them.

But, a justice sympathetic to the theory might propose, perhaps the
theory _could_ be cabined in those ways. Wouldn’t that be all
right?

Let’s dispel that notion quickly. Any version of the theory would
have devastating and intolerable consequences. Indeed, the two most
prominent limiting principles that the independent state legislature
theory’s supporters propose are not only inconsistent with their
theory but would also not limit the damage much at all.

First, the gerrymanderers have suggested that certain “procedural”
state constitutional provisions could still constrain state
legislatures when they regulate federal elections, so long as the
provisions only regulate _how_ laws are made, not what the laws say.
This “version” would likely preserve governors’ power to veto
legislation and voters’ power to reject legislation via referenda.
It might also salvage independent redistricting commissions. But it
would doom crucial voting protections for federal elections.

For example, this version would eliminate state courts’ power to
enforce anti-gerrymandering provisions for congressional map drawing.
The high courts in Florida, Maryland, New York, North Carolina, Ohio,
and Pennsylvania have all relied on these provisions to strike down
gerrymanders enacted by _both_ parties. It would also prevent state
courts from enforcing substantive constitutional rights, like
protections on the right to vote that are enshrined in the
constitutions of nearly every state. Constitutional provisions that
make it easier to vote could be eliminated, such as those establishing
automatic voter registration in Michigan and Nevada or those
guaranteeing absentee or mail voting in 16 states. As would
constitutional provisions that establish ranked-choice voting in
Alaska and Maine and voting machine testing procedures in Montana and
Ohio.

Second, some supporters of the theory — and Justice Samuel Alito —
have proposed that state courts could enforce “specific”
constitutional provisions, just not “general” or “open-ended”
ones, when judging federal election disputes. Under this rule, key
state constitutional guardrails that safeguard the right to vote could
fall, with provisions that protect free speech, fair elections, and
equal protection all declared too vague for state courts to enforce.
That alone is an astounding and radical proposition. There’s more,
though: Most state court judicial review would be eliminated. And
state court decisions in every state in the country could be
nullified.

The principle could also limit governors’ and election officials’
contributions to election rulemaking for federal elections, wiping out
thousands of administrative policies that govern the nuts and bolts.
This would affect everything from voter registration, polling place
locations, and vote-counting processes to voting machine procurement,
audit procedures, and election security protocols.

Each of these approaches would be impossible to administer and would
introduce mass confusion into our election system because they rely on
unintelligible distinctions between “substance” and
“procedure,” “open-ended” and “specific” legal provisions,
and so on. That promises an explosion of federal lawsuits as litigants
desperate to get a win throw everything at the wall to see what
sticks. What’s more, each requires state election administrators to
use two different sets of rules when administering state and federal
elections, which happen simultaneously, creating even greater
confusion and room for error.

In sum, the independent state legislature theory, in any form, poses
an extraordinary threat to American elections. The only way to avoid
this chaos is for the Court to reject the theory, in all its purported
forms.

_Eliza Sweren-Becker serves as counsel in the Voting Rights &
Elections Program at the Brennan Center for Justice. She litigates
voting rights cases, counsels lawmakers and administrators on voting
legislation and policy, researches voting law trends, and comments on
voting issues in a variety of media outlets. She has testified before
Congress and several state legislatures. She is also an adjunct
professor at St. John’s Law School, where she teaches a voting
rights seminar._

_Ethan Herenstein is counsel with the Democracy Program’s Voting
Rights and Elections team. In addition to voting rights litigation and
policy advocacy, Herenstein focuses on combatting the so-called
independent state legislature theory._

* Independent State Legislature Theory
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* U.S. Supreme Court
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* democracy
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* inside threats
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