Democracy advocates raise alarm after Supreme Court takes election case

The Washington Post

14:35 JST, July 2, 2022

Voting rights advocates expressed alarm Friday, a day after the U.S. Supreme Court said it will consider a conservative legal theory giving state legislatures virtually unchecked power over federal elections, warning that it could erode basic tenets of American democracy.

The idea, known as the “independent legislature theory,” represents to some theorists a literal reading of the Constitution.

But in its most far-reaching interpretation, it could cut governors and state courts out of the decision-making process on election laws while giving state lawmakers free rein 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 disregard the will of its state’s citizens.

This immense power would go to legislative bodies that are themselves undemocratic, many advocates say, because they have been gerrymandered to create partisan districts, virtually ensuring the party-in-power’s candidates cannot be beaten. Republicans control both legislative chambers in 30 states and have been at the forefront of pushing the theory.

The Supreme Court’s choice to take up the case came less than a week after the nation’s highest court overturned Roe v. Wade, leaving it to state legislatures to decide whether abortion should be legal, and two days after bombshell testimony before the committee investigating the Jan. 6, 2021, attack on the U.S. Capitol.

The committee has offered fresh evidence suggesting President Donald Trump sought to disrupt the Congressional counting of electoral votes to allow state legislatures time to send alternate slates of electors as part of a bid 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 more difficult to cast a ballot. Experts say if the Supreme Court adopts the independent legislature theory, it would give state lawmakers ultimate control over election-related decisions like redistricting, as well as issues such as voting qualifications and voting by mail.

“This is part of a broader strategy to make voting harder and 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 pro-democracy group. “It is a significant change to the power of state courts to rein in state legislatures.”

The case could also open the door for state legislatures to claim ultimate control over electors in presidential elections, said Marc Elias, a veteran Democratic voting rights attorney.

“If you believe the strongest form of [the theory] then the legislators can do what they want and there’s no judicial review of that,” Elias said. “The way I view it, Republicans tried to subvert the 2020 election, but were clumsy and they are now learning from that where the pressure points and vulnerabilities are in our election systems, and refining their tactics.”

The case that will go before the high court originates with North Carolina Republicans, who are appealing a state supreme court ruling that struck down the state’s new congressional map as an unconstitutional gerrymander.

The Republicans argue that the Constitution’s elections clause, which says that “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” means the legislatures alone have power over elections-related activities. Past interpretations have taken the clause to mean state governments as a whole, including voters and the executive, legislative and judicial branches.

“This phony ‘doctrine’ is an anti-democratic Republican power grab masquerading as legal theory. It was cooked up in a right-wing legal hothouse by political operatives looking to give state legislatures the power to overturn the will of American voters in future elections,” said Sen. Sheldon Whitehouse, D-R.I., in a statement to The Washington Post.

The theory, Whitehouse said, was wielded by Trump attorney John Eastman as he sought to “overturn the last presidential election, and it could plant 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 beholden it is to the right-wing donors who got so many of the justices their jobs.”

Among the most outspoken advocates of the independent state legislature theory is the Honest Elections Project, an alias of the 85 Fund, a conservative nonprofit linked to Leonard Leo, the former longtime head of the Federalist Society. The 85 Fund reported revenue of more than $65 million in 2020, according to a tax filing, and its relationship with the Honest Elections Project is made clear in corporate records in Virginia.

The Honest Elections Project has made the case for the independent state legislature theory in amicus briefs submitted to the Supreme Court in recent years. It cited the theory by name in a January brief in a dispute, also arising from 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 in on the merits of 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.”

“It should do so here,” the group urged in its brief.

The Honest Elections Project made multiple references to a 2021 article in the Fordham Law Review explaining the theory. The article’s author, Michael Morley, is a professor at the Florida State University College of Law and a contributor to the Federalist Society.

An earlier brief from the Honest Elections Project, in a dispute over the 2020 election between Pennsylvania Republicans and the state’s Democratic secretary of state, did not cite the theory by name but argued that state legislatures have sweeping authority over federal elections – unrestricted by state constitutions.

The lead attorney on the brief, David Rivkin, a lawyer who served in the administrations of Ronald Reagan and George H.W. Bush, said the theory, if embraced by the Supreme Court, would not shield state electoral maps from challenges based on racial discrimination or other claims rooted in the U.S. Constitution or federal statute. But it would nullify other grounds for rejecting state maps, including claims of partisan gerrymandering. The Supreme Court in 2019 ruled that federal courts had no jurisdiction over claims of partisan gerrymandering, leaving that issue to state courts.

Voting rights advocates point to that decision, specifically a quote from Chief Justice John Roberts, as evidence that the Supreme Court has previously believed 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 v. Common Cause.

Rivkin, in an interview, touted his role in honing the theory. He dismissed concerns that it would pave the way for state legislatures to achieve the kind of election manipulation sought by Trump and Eastman. Rivkin said he placed no stock in “idiotic arguments used by Trump.”

“If you ask me as a strictly constitutional and analytical matter, state legislatures can indeed recapture the power to choose electors themselves,” he said. “I can also tell you as a pragmatic matter, 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 brushed off predictions that state legislatures would usurp power to choose electors. Snead, in an interview, argued that the doctrine “should be taken out of the context of Jan. 6 and what happened that day, which was absolutely terrible.”

“This is not a novel idea,” he said. “We’re talking about first principles and constitutional text.”

But the language in the Constitution pertaining to elections has never been interpreted that way. A version of the independent legislature theory got some buy-in during the Bush v. Gore lawsuit that determined the outcome of the 2000 election, in which the court sided with Republicans. Justices William Rehnquist, Antonin Scalia and Clarence Thomas wrote a concurring opinion that the Supreme Court could overrule a state Supreme Court’s interpretation of its election laws to “preserve the state legislature’s power over how the state runs its presidential elections.”

Fifteen years later, the court narrowly rejected a challenge from Arizona’s Republican-led state legislature using the independent legislature theory to argue against an independent redistricting commission drawing maps.

In a 2020 case about mail-in ballot deadlines in Wisconsin, Justice Neil Gorsuch seemed to endorse the theory, writing, “The Constitution provides that state legislatures – not federal judges, not state judges, not state governors, not other state officials – bear primary responsibility for setting election rules.”

David Cohen, the founder and CEO of Forward Majority, a nonprofit aimed at electing Democrats in 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 legislators who throw out valid American votes in order to achieve their partisan outcome,” Cohen said. “We should all be incredibly worried about any system that would allow for that possibility.”