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A Debunked Legal Theory Could Be Used to Turn Our Elections Into Chaos

The theory would remove many checks and balances on state legislators, unleashing the very bodies that have been enacting laws that make it harder to vote — particularly for Americans of color — and easier to interfere in election outcomes.

Last Updated: July 1, 2022
Published: June 30, 2022

This piece was origin­ally published in the Los Angeles Times.

For the last three weeks, the Jan. 6 hear­ings have brought back the sights, sounds and horror of a mob infilt­rat­ing the U.S. Capitol in broad daylight, bent on over­turn­ing the will of millions of Amer­ican voters.

Of course, this mass viol­ence is just one of the tactics used by those trying to under­mine our demo­cracy. Another tool in play is a legal notion from the most radical fringes of Amer­ican juris­pru­dence, a thor­oughly debunked idea that anti-demo­cratic forces have been tout­ing heav­ily since the 2020 elec­tions: the so-called inde­pend­ent state legis­lature theory.

For the last several years, a small group of conser­vat­ive legal activ­ists has been trying trans­form this radical read­ing of the Consti­tu­tion into the law of the land.

The theory contorts the Consti­tu­tion’s elec­tions and elect­ors clauses, which give states the author­ity to regu­late federal elec­tions — to draw the bound­ar­ies for congres­sional districts and to adopt policies like mail voting and early voting, for example — while at the same time empower­ing Congress to enact federal elec­tion laws and over­ride state policy.

That’s how these clauses have been under­stood for the past 200 years. But proponents of the far-fetched “inde­pend­ent state legis­lature theory” are now contend­ing that these clauses grant state legis­latures near abso­lute power over the laws govern­ing elec­tions for federal office — leav­ing state courts, state consti­tu­tions, state governors and other state entit­ies power­less to stop even the most extreme gerry­manders and voter suppres­sion laws that a state legis­lature could devise. It’s just as nutty as it sounds.

This isn’t a theor­et­ical legal dispute: This theory, which activ­ists are press­ing the Supreme Court to consider this fall, could turn our demo­cracy upside down. In its most extreme forms, it would throw elec­tion admin­is­tra­tion into chaos by nulli­fy­ing hundreds of elec­tion laws that voters have adop­ted through refer­enda, that are writ­ten into state consti­tu­tions and that have been promul­gated through admin­is­trat­ive regu­la­tions, govern­ing such processes as voter regis­tra­tion, mail voting and the guar­an­tee of a secret ballot.

And the theory would remove many checks and balances on state legis­lat­ors, unleash­ing the very bodies that have been enact­ing laws that make it harder to vote — partic­u­larly for Amer­ic­ans of color — and easier to inter­fere in elec­tion outcomes. Under this theory, the only remain­ing arbiter as to the lawful­ness of state legis­latures’ handi­work? The Supreme Court — which has been stead­ily dismant­ling what little remains of federal law protec­tions for our elec­tions.

The inde­pend­ent state legis­lature theory isn’t just a terrible idea, though. It’s also flat wrong as a matter of consti­tu­tional inter­pret­a­tion.

The clear intent of the founders who draf­ted the Consti­tu­tion, along with hundreds of years of prac­tice and legal preced­ent, never contem­plated hand­ing this kind of unbridled power to state legis­latures. The inde­pend­ent state legis­lature theory has no legal or historic valid­ity — it is a fever dream of partisan activ­ists who are desper­ate to find some pretext to empower certain state legis­latures for their polit­ical advant­age.

The founders draf­ted the Consti­tu­tion to corral self-deal­ing and self-inter­ested state politi­cians who were behav­ing badly under the relat­ively weak Articles of Confed­er­a­tion. James Madison explained that this federal power was neces­sary because “[i]t was impossible to fore­see all the abuses” of power that states might pursue if given “uncon­trouled right” over federal elec­tions. Madison warned that state legis­lat­ors would “mould their regu­la­tions as to favor the candid­ates they wished to succeed.” He and other founders worried that, if unchecked, states would embrace voter suppres­sion meas­ures like putting polling places in incon­veni­ent loca­tions and adopt vote dilu­tion tactics like gerry­man­der­ing.

Just as in the found­ing era, most state consti­tu­tions today regu­late federal elec­tions (for example, by direct­ing the process for congres­sional redis­trict­ing), and most state legis­latures share their elec­tions power with other state actors. It should come as no surprise that the Supreme Court through­out Amer­ican history has expressly rejec­ted the inde­pend­ent state legis­lature theory, most recently in a 2015 case approv­ing of a redis­trict­ing commis­sion created by voter refer­en­dum in Arizona.

Never­the­less, before the 2020 elec­tion, Pres­id­ent Trump and his attor­neys tried to use this theory in his legal efforts to strike down the policies that secret­ar­ies of state, other state elec­tion bodies and state courts imple­men­ted in 2020 to ensure that voters could cast their ballots safely during the pandemic. Trump argued that these entit­ies could­n’t regu­late elec­tions because they weren’t part of the "legis­lature,” even though they have been integ­ral to state lawmak­ing processes since the found­ing.

Those cases bounced around the Supreme Court through peti­tions for emer­gency relief, and while the court didn’t take any of them up, four conser­vat­ive justices wrote separ­ately to indic­ate their open­ness to the claim. After the elec­tion, Trump and his allies tried to use the theory as polit­ical cover for the plot to convince state legis­lat­ors to select their own slates of pres­id­en­tial elect­ors and over­turn the elec­tion results.

Gerry­man­der­ers from North Caro­lina are currently trying to push the theory in a case the Supreme Court might take up for argu­ment this fall. And other cases are lurk­ing as poten­tial carri­ers for this pois­on­ous notion. The inde­pend­ent state legis­lature theory has no legit­im­ate basis in Amer­ican law. This perverse read­ing of the Consti­tu­tion cannot be allowed to under­mine Amer­ican elec­tions.