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Putting Elections in the Wrong Hands

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

April 26, 2022

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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.