Voting rights advocates expressed concern Friday, a day after the U.S. Supreme Court said it would consider a conservative legal theory that gives state legislatures virtually unchecked power in federal elections, warning it could erode core American principles. democracy. The idea, known as the “independent legislature theory,” represents to some theorists a literal reading of the Constitution. But at its most extensive interpretation, it could cut governors and state courts out of the decision-making process about election laws, while giving state legislators are free to change rules to favor their own party. The impact could extend to presidential elections in 2024 and beyond, experts say, making it easier for a legislature to ignore the will of its state’s citizens. That enormous power would go to legislatures that are themselves undemocratic, many advocates say, because they are doomed to draw party districts, essentially ensuring that the candidates of the ruling party cannot be defeated. Republicans control both state legislatures in 30 states and have been at the forefront of promoting the theory. The Supreme Court’s choice to take up the case came less than a week after the country’s top court overturned Roe v. Wade, leaving state legislatures to decide whether abortion should be legal and two days after bombshell testimony before the committee investigating the January 6, 2021 attack on the US Capitol. The committee offered new evidence suggesting that President Donald Trump tried to halt the counting of electoral votes in Congress to give state legislatures time to send out alternate lists of voters as part of an attempt to overturn the results of the 2020 election. State legislatures have already introduced or enacted laws in a number of GOP-controlled states that voting rights groups say make it harder to vote. Experts say that if the Supreme Court adopts the independent legislature theory, it will give state legislatures ultimate control over election-related decisions like redistricting, as well as issues like voting qualifications and postal voting. “This is part of a larger strategy to make it harder to vote and to impose the will of state legislatures regardless of the will of the people,” said Suzanne Almeida, director of state operations for Common Cause, a nonpartisan group in favor of democracy. “It’s a major shift in the power of state courts to rein in state legislatures.” The case could also open the door for state legislatures to assert total control over electors in presidential elections, Marc Elias said. veteran Democratic suffrage attorney. “If you believe his strongest form [the theory] then legislators can do whatever they want and there is no judicial review of it,” Elias said. “The way I see it, the Republicans tried to overturn the 2020 election, but they were clumsy and now they’re learning from this where the pressure points and vulnerabilities are in our election systems and improving their tactics.” The case that will go before the high court is being initiated by North Carolina Republicans, who are appealing a ruling by the state’s highest court that struck down the state’s new congressional map as unconstitutional surgeon general. Republicans argue that the Constitution’s election clause, which says “Times, Places, and Manner of Holding Elections for Senators and Representatives, shall be determined in each State by the Legislature.” means that only legislatures have authority over election-related activities. Previous interpretations have taken the clause as meaning state governments as a whole, including the electorate and the executive, legislative and judicial branches. “This bogus ‘doctrine’ is an undemocratic Republican power grab masquerading as legal theory. It was cooked up in a right-wing legal hothouse by political operatives trying to give state legislatures the power to overturn the will of the American voters in future elections,” Sen. Sheldon Whitehouse (D.R.I.) said in a statement in Washington. Position. The theory, Whitehouse said, was used by Trump’s lawyer, John Eastman, as he sought to “overturn the last presidential election and could plant the seeds of chaos in time for the next one. The fact that the Court is even considering a case involving such an extreme idea shows how heavy handed are the right-wing donors who took the jobs of so many of the justices.” Among the most outspoken proponents of the independent state legislative theory is the Honest Elections Project, an alias of the 85 Fund, a conservative nonprofit associated with Leonard Leo, the former longtime head of the Federalist Society. 85 Fund reported more than $65 million in revenue in 2020, according to a tax filing, and its relationship with the Honest Elections Project is made clear in corporate filings in Virginia. The Honest Elections Project has supported the independent state legislative theory in amicus briefs filed in the Supreme Court Recent years. He mentioned the theory by name in a January brief in a dispute, also out of North Carolina, over whether state lawmakers could intervene in litigation challenging the state’s voter ID law. The high court ruled 8-1 in favor of the lawmakers on June 23, but did not weigh the merits of the voter ID laws or the legal theory. In its amicus brief, the Honest Elections Project noted that the Supreme Court had discussed the theory but never made clear “that the doctrine is our law.” “He should do it here,” the group urged in its interview. The Honest Elections Project made multiple references to a 2021 Fordham Law Review article explaining the theory. The article’s author, Michael T. Morley, is a professor at Florida State University College of Law and a fellow of the Federal Society. An earlier brief from the Honest Elections Project, in a 2020 election dispute between Pennsylvania Republicans and the state’s Democratic secretary of state, did not mention the theory by name, but argued that state legislatures have broad authority over federal elections — unconstrained by state constitutions . The lead attorney, David B. Rivkin Jr., a lawyer who served in the administrations of Ronald Reagan and George HW Bush, said the theory, if adopted by the Supreme Court, would not protect state election maps from challenges based on to racial discrimination or other claims rooted in the US Constitution or federal statute. But it would invalidate other grounds for rejecting state maps, including claims of partisan gerrymandering. The Supreme Court in 2019 ruled that federal courts lacked jurisdiction over partisan crime claims, leaving the issue to state courts. Voting rights advocates point to this decision, specifically a quote from Chief Justice John G. Roberts Jr., as evidence that the Supreme Court has previously believed that state courts have an oversight role. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in policing partisan gerrymandering, Roberts wrote for the majority in Rucho vs. Common Cause. Rivkin, in an interview, asserted his role in the completion of the theory. He dismissed concerns that it would pave the way for state legislatures to achieve the kind of electoral manipulation that Trump and Eastman are seeking. Rivkin said he didn’t put stock in “stupid arguments that Trump used.” “If you ask me as a strictly constitutional and analytical matter, the state legislatures can indeed regain the power to choose the electors themselves,” he said. “I can also tell you as a matter of fact, I don’t know of any state legislature that has done that.” Jason Snead, the executive director of the Honest Elections Project — created in 2020 to counter Democratic efforts to expand voting rights — similarly shot down predictions that state legislatures would usurp the power to choose electors. Snead, in an interview, argued that the doctrine “needs to be taken out of the context of January 6th and what happened that day, which was absolutely terrible.” “This is not a new idea,” he said. “We are talking about first principles and the constitutional text.” But the language of the Constitution dealing with elections has never been so interpreted. A version of the independent legislature theory got some traction during his time Bush vs. Gore lawsuit that determined the outcome of the 2000 election, in which the court participated with the Republicans. Justices William H. Rehnquist, Antonin Scalia and Clarence Thomas wrote a concurring opinion that the Supreme Court could overrule the state Supreme Court’s interpretation of its election laws to “preserve the state legislature’s authority over the manner in which the state conducts the presidential elections’. Fifteen years later, the court narrowly rejected a challenge by Arizona’s Republican-led state legislature using the independent legislature theory to argue against an independent redistricting commission drawing maps. In a 2020 case on mail-in ballot deadlines in Wisconsin, Justice Neil M. Gorsuch appeared to support the theory, writing: “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, nor other state officials — bear primary responsibility for setting election rules.” David Cohen, founder and CEO of Forward Majority, a nonprofit that aims to elect Democrats to state legislatures, said the fact that the conservative-leaning Supreme Court is entertaining the idea makes his group’s work that much more urgent. “To me, the scary versions of this are lawmakers throwing away valid American votes in order to achieve their partisan effect,” Cohen said. “We should all be incredibly concerned about any system that would allow this possibility.” Robert Barnes contributed to this report.
