Even if five justices signed on to a version of the independent legislature theory, it is unclear how far reaching a ruling will be, said Rick Hasen, an election law expert at the University of California, Irvine School of Law who does not support the theory . “There’s a lot of potential for nuance here,” he said. “Even if you had a majority of justices that agreed that there’s something to this theory, they might not agree that a particular state has violated it.”
But if they took “the most maximalist position, it would be an earthquake in American electoral power,” Hasen said before Monday’s decision.
And since the Court declined to overturn the redistricting maps for other reasons, the theory is still waiting for a full test of just how far it could go ahead of the 2024 election.
The theory has its roots in the most famous elections-related Supreme Court case this millennium: Bush v. Gore, along with a related ruling. Then-Chief Justice William Rehnquist argued in a concurring opinion that, under Article II of the Constitution, state legislatures had near-unchallengeable authority to decide how presidential electors were appointed, and he wrote that federal courts may need to step in to make sure “ that post-election state court actions do not frustrate the legislative desire. ”
The Constitution only explicitly mentions legislatures with respect to presidential electors. The Electors Clause says that “each state shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors,” and the Elections Clause – which covers congressional elections – says that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by its legislature, ”subject to checks from Congress.
Now, Republican lawyers – and conservative Supreme Court justices – are increasingly adopting the theory, which holds that state courts do not have significant power to review election law because of the wording of those clauses.
“Some provisions of the Constitution are subject to reasonable debate. Others are not, ”read a friend of the court brief from the Republican National Committee, the National Republican Congressional Committee and the North Carolina Republican Party in a case where state Republican legislators unsuccessfully sought an emergency order to stay the court-drawn maps.
“Absent from the constitutionally mandated order of authority is any role for the state judiciary,” the briefing continued. “Notwithstanding this omission, certain state and commonwealth courts have taken it upon themselves to appropriate the processes that belong to the politically accountable branches of government.”
The biggest question is whether a majority of the conservative-dominated Supreme Court will eventually adopt this reading of the Elections and Electors Clauses – and, if they do, how strict of an interpretation they would take.
Four conservative justices – Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – signaled at least some favorability to the independent legislature theory on Monday. In an opinion dissenting from the decision to stay the North Carolina maps, Alito boosted the independent legislature theory when writing about the Elections Clause.
“This Clause could have said that these rules are to be prescribed ‘by each State,’ which would have left it up to each State to decide which branch, component, or officer of the state government should exercise that power, as States are generally free to allocate state power as they choose, ”he wrote. “But that is not what the Elections Clause says. Its language specifies a particular organ of a state government, and we must take that language seriously. ”
Thomas and Gorsuch joined Alito’s dissent. (Thomas had also joined Rehnquist’s concurring opinion in Bush v. Gore in 2000.)
“If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections, ”Alito wrote.
Kavanaugh did not strongly endorse the theory. But in concurring with the decision to not throw out the maps, he wrote that the “underlying Elections Clause question raised in the emergency application is important” and that the court should have a full hearing “in an appropriate case” to consider the arguments on a less compressed timetable.
All four of those justices voiced at least some level of support for the theory during litigation surrounding the 2020 election, as well.
Monday’s orders turning away the emergency pleas in North Carolina and Pennsylvania did not make public the final votes for the decisions. But it is notable that neither Chief Justice John Roberts nor Justice Amy Coney Barrett joined either Kavanaugh’s concurrence or Alito’s dissent. If one of the two joins the other four conservative justices in an even limited reading of the theory, it could have profound implications for American elections.
“The main votes that everyone is watching are Roberts, Barrett and Kavanaugh. And whoever gets two of the three will likely win, ”said Cameron Kistler, an attorney at the Protect Democracy group.
Kistler has argued that new scholarship on the meaning of “legislature” made clear a broader definition of the Clauses, noting that recent writing on the theory has been tailored to address the makeup of the current Supreme Court. “How the Court’s conservatives will reconcile the new originalist scholarship with their theories of judicial interpretation is going to be really tricky,” he said. “And I think they’re going to struggle with it.”
Republican attorneys are raising the issue enough that the Court will be forced to confront it sometime in the near future.
GOP lawyers used a strict interpretation of the Elections and Electors Clauses in cases challenging a gamut of pandemic-era voting changes in 2020. And the theory of an “independent legislature” was pushed by allies of then-President Donald Trump in their effort to toss out election results in swing states and have electors appointed by Trump-friendly legislators.
The case from Republican attorneys general arguing to throw out electors from the battleground states of Pennsylvania, Georgia, Michigan and Wisconsin read, in part, that “non-legislative changes to State election law” violated the Electors Clause, and therefore those electors “cannot cast constitutionally valid votes. ”
The lawsuit – led by Texas Attorney General Ken Paxton and endorsed by Trump and more than 120 House Republicans – was ultimately tossed by the Supreme Court for a lack of standing.
Organizations opposing Republican lawyers in court – stretching from good government groups like Common Cause in the recent North Carolina case to Pennsylvania Democratic Gov. Tom Wolf’s administration in Pennsylvania – argue that this theory is a twisted reading of decades of jurisprudence, including rulings made as recently as three years ago.
Victoria Bassetti, a senior adviser at bipartisan nonprofit States United Democracy Center, also noted that it could open up to state legislatures taking on a hands-on role in the actual administration of elections, which she said would be disastrous.
“There’s no evidence that state legislatures have the institutional capacity to really administer elections in the granular way that you need to,” she said before Monday’s decision. States United served as pro-bono counsel for Wolf and other respondents in the Pennsylvania case.
A near-unchecked supremacy of legislatures would “essentially make one branch of government the absolute authority of how our democracy is implemented,” she said. “It just really runs counter to the entire idea of American democracy, which is balance of powers.”
Perhaps the most extreme push for the independent legislature theory this year has come out of Wisconsin. In a probe blessed by top Republicans in the state, former state Supreme Court Justice Michael Gableman endorsed the fringe theory of “decertifying” the 2020 election results, citing the “plenary power” of state legislators over choosing electors – an idea that has been soundly rejected by the Wisconsin legislature’s own attorneys and constitutional experts.
Since the 1830s, almost every state has decided to appoint its electors via the popular vote in their state. And while election lawyers agree that states could, theoretically, choose an alternate method of appointment prior to the election, they almost universally reject the idea that a state legislature could change its mind after an election to appoint an alternate slate of electors without changing state law – as Trump and his allies argued in the aftermath of his loss.
But a maximum reading of the independent legislature theory could make those calls louder – especially in a situation when a losing candidate like Trump tries to pressure supporters to do it.
“When the next presidential election comes around, it would increase the drumbeat that some state legislators might have to go off and appoint the electors on their own,” Bassetti said. “But I would hasten to say, it would not give them a carte blanche.”