State Republicans want the court to toss the current map by endorsing the so-called independent state legislature theory, which holds that only state legislatures have the authority to adopt congressional district maps and enact federal election laws. Proponents of the theory believe that the elections clause in the U.S. Constitution gives state legislatures the sole authority to set the “time, place, and manner” of elections.
If adopted, the theory would preclude any state-level judicial review of the federal election laws or congressional district maps adopted by state legislatures. That would give state legislatures a free hand to draw partisan congressional district maps in almost whatever way they please since the Supreme Court already cut off federal courts from hearing partisan gerrymandering claims in 2019. It could also enable state legislatures to adopt almost any election law, even if it violated provisions of their state constitution.
“According to proponents of the theory, state legislatures are independent, completely unfettered actors when it comes to regulating federal elections,” Ben Berwick, a counsel at Protect Democracy, a nonpartisan nonprofit that opposes the adoption of the independent state legislature theory. “That is really novel, to put it nicely, and, to put it not as nicely, bunk and completely inconsistent with historical practice and even original understanding.”
This theory found itself before the Supreme Court and its six-vote conservative majority after it was raised by Republicans challenging changes to election procedure approved or made by state courts to accommodate voting in the 2020 election, at the height of the COVID-19 pandemic. These challenges were part and parcel of Trump’s effort to undermine faith in the electoral process ahead of the election and became an important rhetorical cudgel during the post-election effort to overturn the presidential results and then overthrow the government.
It is no surprise, then, that the many briefs filed in support of the court affirming the independent state legislature theory come from those who participated in the events of Jan. 6, 2021, and promoted Trump’s lies about the 2020 presidential election being “stolen” from him.
“Their ultimate goal is not to vindicate democracy or American constitutionalism; their goal is to eliminate checks and balances on legislatures,” Wolf said. “They don’t want state courts, they don’t want governors, they don’t want state constitutions and they don’t want voters telling state legislatures what to do.”
Notably, two briefs before the Supreme Court urging it adopt the theory come from lawyer John Eastman. The legal architect of Trump’s effort to overturn the presidential election and a featured speaker at the Jan. 6 rally that precipitated the attack on the U.S. Capitol, Eastman initially pushed for the Republican-controlled state legislatures in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin to submit alternative slates of electors to Congress in support of Trump’s election despite the actual votes of the people of those states. He argued that the Constitution’s electors clause gave uncontested authority to state legislatures to approve and submit electors to Congress.
When no state legislature did as Eastman and Trump wanted, they got the individual GOP electors to submit alternative elector slates to Congress. The process of submitting alternative, fraudulent electors to Congress is now part of the federal investigation into the effort to overturn the election. FBI agents seized Eastman’s phone in June. A federal district judge found that Eastman’s efforts amounted to “a coup in search of a legal theory” and that it was more likely than not that a court would find that he “dishonestly conspired to obstruct the joint session of Congress on Jan. 6, 2021.”
Though the independent state legislature theory does not provide “a license to coup,” according to Tom Wolf, deputy director of the democracy program at the Brennan Center, a nonprofit that opposes the independent state legislature theory, its adoption could give added rhetorical heft to the next attempt to overthrow the government.
“If the Supreme Court were to give this sort of authority to state legislatures, it’s not clear that the broader public would understand exactly what powers the legislatures are gaining and what they’re not gaining,” Wolf said. “It may become a pretext, or political cover or rhetoric that legislators use to then overturn elections.”
“Here’s what’s going on in the Supreme Court: The right-wing dark money ‘fictitious name’ front group ‘Honest Elections Project’ is boosting a MAGA theory giving state legislatures virtually unchecked power over federal elections,” Sen. Sheldon Whitehouse (D-R.I.) tweeted on Wednesday. “Remember that the Honest Elections Project is run by Leonard Leo, the Federalist Society Court-packer behind Alito, Roberts and all three of Trump’s Supreme Court picks. Now, he’s trotting out fringe legal theories before the justices he placed.”
This isn’t the first time Leo’s Honest Elections Project has called on the court to endorse the independent state legislature theory. Prior to the 2020 election, when Leo’s group was promoting lies and exaggerations about election fraud, it filed a brief in support of the theory when Pennsylvania Republicans challenged the state Supreme Court’s order to allow ballots mailed by Election Day and that arrived within the next 72 hours to be counted.
All of this happened before Barrett joined the court. She now stands as a potential deciding vote on the issue. The case of Moore v. Harper will be argued in the court’s fall term. The court will then decide whether or not to award a big win to supporters of Trump’s election lies and his attempt to overthrow the government on Jan. 6, 2021.
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