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Analysis

Putting Elections in the Wrong Hands

The independent state legislature theory is a radical and baseless attack on our elections.

April 26, 2022
The Kansas statehouse
fotoguy22

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The Framers didn’t trust state legis­latures. 

“What led to the appoint­ment of this Conven­tion?” John F. Mercer of Mary­land rhet­or­ic­ally asked his fellow deleg­ates to the 1787 Consti­tu­tional Conven­tion. “The corrup­tion & mutab­il­ity of the Legis­lat­ive Coun­cils of the States.”

They espe­cially did not trust legis­latures to run elec­tions. James Madison insisted that the Consti­tu­tion give Congress the power to over­ride state laws concern­ing elec­tion admin­is­tra­tion. “[I]t was impossible to fore­see all the abuses,” he explained. He worried that legis­lat­ors would engage in vote suppres­sion and gerry­man­der­ing. (They didn’t call it that — the word didn’t exist yet, and anyway Elbridge Gerry was stand­ing right there! — but that’s what they meant.) “Whenever the State Legis­latures had a favor­ite meas­ure to carry, they would take care so to mould their regu­la­tions as to favor the candid­ates they wished to succeed.”

Add in the fact that the Framers had a real thing for checks and balances, and it should be clear that they would not, under any circum­stances, have given state legis­latures near abso­lute power over elec­tions — the lifeblood of our demo­cracy.

And yet, that’s exactly what a small circle of schol­ars and activ­ists would have us believe. Accord­ing to the “inde­pend­ent state legis­lature theory” (ISLT), neither governors, state judges, nor even state consti­tu­tions can stop legis­lat­ors from, for example, entrench­ing their power through gerry­man­der­ing or restrict­ing voting access.

The implic­a­tions of this argu­ment should frighten you. Look, for example, at a case wend­ing its way through the Kansas courts. Repub­lic­ans, who currently hold a veto-proof legis­lat­ive major­ity, drew a congres­sional map with only one compet­it­ive district. In the process, they carved up Wyan­dotte County, a major­ity-minor­ity district since the 1980s, in an effort to oust the state’s sole Demo­cratic repres­ent­at­ive. When public interest groups argued that the map viol­ates several provi­sions of the state consti­tu­tion, the state respon­ded, essen­tially, that the Kansas Consti­tu­tion does­n’t matter. 

Where do they get the nerve? From a misread­ing of a single word in the U.S. Consti­tu­tion. The Elec­tions Clause gives “legis­latures” the power to set the “times, places, and manner” of elec­tions. (And — to under­line how little the Framers’ trus­ted state legis­latures — Congress “may at any time by Law make or alter such Regu­la­tions.”) Since the found­ing, “legis­latures” has been under­stood to mean “state govern­ments.” 

ISLT proponents claim ahis­tor­ic­ally that, although the Consti­tu­tion does­n’t say so, this deleg­a­tion to legis­lat­ors was inten­ded to free them from the proced­ures and constraints that govern other exer­cises of their power. In other words, when it comes to elec­tion admin­is­tra­tion, the governor cannot veto, the state consti­tu­tion does not apply, and state judges have no power. It’s a lot to read into a single word.

The ISLT is radical, and it has no basis in any main­stream school of consti­tu­tional inter­pret­a­tion. From the found­ing through today, state consti­tu­tions and state courts have consist­ently checked elec­tion legis­la­tion. So, it’s no surprise that a century’s worth of Supreme Court preced­ent rejects the theory. But at least four sitting U.S. Supreme Court justices are ISLT-curi­ous, so voting rights advoc­ates must ensure the Court does­n’t back­track.

Voters across the coun­try are trying to take back their elec­tions. They are amend­ing their consti­tu­tions to demand fair maps and taking their own lawmakers to court to ensure access to the ballot. The inde­pend­ent state legis­lature theory would wipe those reforms away — along with count­less state consti­tu­tional provi­sions that govern our elec­tions. What’s more, it could inval­id­ate all legis­lat­ive deleg­a­tions of power to admin­is­ter elec­tions. That means the secret­ar­ies of state and commis­sions respons­ible for running elec­tions in so many states would suddenly have no author­ity to make decisions — even if the legis­lat­ors ask them to do so. 

There has been enough chaos in our elec­tions over the last couple of years. Let’s not sow any more.