Home / General / The “independent state legislature” theory is both transparently idiotic and a major threat to American democracy

The “independent state legislature” theory is both transparently idiotic and a major threat to American democracy


Cannot recommend this Adam Serwer banger more strongly:

In Moore v. Harper, North Carolina Republicans are arguing that no other state body, including the state supreme court, has the power to restrict the legislature’s ability to set voting rules—specifically ones allowing legislators to gerrymander the state, in defiance of a ruling by the state supreme court finding that their plan violated the state constitutional amendment guaranteeing the right to vote. This belief is based on a crank legal premise called the “independent-state-legislature theory.”

The justification for this theory is that the U.S. Constitution’s text about state legislatures setting election rules refers not simply to passing laws or adopting state-constitutional provisions regarding voting, but to an authority to decide such matters unilaterally. State legislatures themselves pass laws and participate in the process of adopting constitutional amendments; it makes no sense to argue, as the independent-state-legislature theory does, that such bodies are not bound by rules they themselves have set. Nevertheless, this idea is the kind of obtuse, context-free pedantry that malicious lawyers adore. As the election-law expert Rick Hasen writes, in its most extreme interpretation, this theory would mean that a state legislature could simply overturn federal election results it did not like based on its perception, no matter how unfounded, that the rules were violated. Hypothetically, the Supreme Court could check such abuse of power; its capture by the Republican Party means that, in practice, it might not.

“We have run elections the same way for 230 years in this country. And under that 230-year history, the independent-state-legislature hearing has not been the law,” Thomas Wolf, an election-law expert with the Brennan Center, told me. “It’s mainly been moving forward under gas that’s been provided almost entirely by just a few conservative justices on the Supreme Court, effectively citing themselves for the proposition.”

You’d think that the theory’s recent vintage would make it anathema to self-identified originalists, but among most of the justices this philosophy is implemented with scarcely more rigor than one might put into scanning Wikipedia to win an argument with a stranger online. More disturbing, the popularity of the theory among conservative legal elites is further indication of their commitment to an idea of “democracy” in which the Republican Party is simply not allowed to lose, and of their desire to alter the system to ensure that it cannot.

While Shelby County, Rucho, and Brnovich are all world-historically bad opinions in themselves, the compounding effect they all have makes them even worse than the sum of their parts, and if they side with the Republicans in Moore it would make things far worse. The only operative unifying theory in all of these cases is “Republicans are entitled to govern even if voters prefer Democrats.”

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