While this week brought good news about the Supreme Court’s franchise, it could very well be a temporary victory.
In a pair of orders issued Monday, judges allowed court-ordered Congressional cards to appear North Carolina and Pennsylvania, refusing to intervene in the decisions of these state supreme courts. Republicans in both states had asked the court to block those cards under a tortured right-leaning legal theory known as the Independent State Legislature (ISL) doctrine.
Make no mistake: This is a tremendous victory for voters in both states. The North Carolina state Supreme Court had rejected a GOP-drawn congressional map that guaranteed Republicans at least 10 and potentially 11 of the state’s 14 seats as a violation of the state constitution. In Pennsylvania, where the state Supreme Court unraveled the GOP’s extreme gerrymander of the past decade in 2018, that court mandated what most observers view as a balanced 9-8 card that favors neither side.
The orders point to an unlikely alliance. Although the Pennsylvania order has not been signed, it appears the three liberals were joined by Chief Justice John Roberts and Judge Amy Coney Barrett in denying the emergency request in the Carolina case. of the North, with the agreement of the judge Brett Kavanaugh. Justices Clarence Thomas and Neil Gorsuch joined Justice Alito’s dissent.
Still, as fair cards in North Carolina and Pennsylvania have dodged a bullet, there’s some chilling news: As we announced at the Salon last September, the doctrine of the independent state legislature remains a real threat to free elections. at Alito contestation called ISL – which indicates whether a state court has the power to overrule laws passed by a state legislature regarding federal elections, or whether the legislature has absolute control – “an exceptionally important and recurring question of constitutional law” .
RELATED: Beware the ‘Doctrine of Independent State Legislatures’ – It Could Checkmate Democracy
In his separate agreement with the Order of North Carolina, Kavanaugh – who was previously receptive to this doctrine — ruled it was too late for federal courts to intervene in North Carolina at this time, but that “both sides have made serious arguments” and the Supreme Court is expected to resolve it soon. That’s four voices right there, enough to put the case on the court calendar Next year. There is good reason to be alarmed that this court could then adopt a radical, undemocratic theory that threatens the very nature of our elections and facilitates the success of gerrymanders, voter suppression and electoral subversion.
What is the Doctrine of the Independent State Legislature?
The central legal theory underlying these efforts pushes for an expanded understanding of state power through “Independent state legislaturesThis is an interpretation of the U.S. Constitution that states’ legislatures alone have the authority to set all election rules (including the allocation of votes to the Electoral College), immune from judicial review by the state courts.
Many jurists believe this theory deserves condemnation, both as an undemocratic effort to bestow absolute power on often wildly gerrymandered state legislatures, but also as a departure from decades of constitutional precedent. . But these scholars have none of the nine voices that matter.
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Four conservative justices have already indicated their support: Alito, Thomas and Gorsuch in the North Carolina dissent published this week, and Kavanaugh in agreement. It would simply take either Roberts (whose scathing dissent in the Arizona Independent Redistricting Commission’s 2015 ruling considers him a strong maybe), or Barrett to establish this crackpot theory as the law of the land.
It doesn’t seem to matter to Alito or his fellow conservatives that their tortured and “quirky” reading of the Constitution’s election clause seems little more than an effort to entrench Republican lawmakers in power, and a huge departure from recent Alito votes on supporter and racial gerrymandering – it all depends on the likely partisan results.
Perhaps these emergency requests were not the right time for the court to squarely address this theory of radical state power. But the right time could come soon, especially if the justices decide to take over the North Carolina case in the next term.
If the Supreme Court were to adopt this theory, it would radically expand the power of state legislatures, giving them carte blanche to engage in partisan gerrymandering, voter suppression and electoral subversion, without judicial oversight. Such a move could also reduce the power of state courts, state constitutions, and state ballot initiatives to protect and expand fair elections and fair districts. It could even threaten the constitutionality of independent redistricting commissions.
The campaign to gain credibility
This push to expand state power is accompanied by efforts to build both the narrative intellectual credibility of the idea of hugely expansive state power, aided by strategic litigation brought by lawyers and conservative institutions in order to appear before friendly conservative courts. The end game? Nothing less than the dismantling of representative democracy itself, through a dormant and long-neglected level of government: the state legislatures.
Many jurists, including Nathaniel Persily, have derided the theory of the independent state legislature, point out that it gives “intellectual respectability to an otherwise senseless and undemocratic argument”. A forthcoming article on Akhil Amar and Vikram Amar’s Law Review goes into more detail, dismantling the theory as ahistorical and “totally indefensible.”
But this once fringe theory is making its way into the mainstream of the highly effective conservative legal project. It’s not just about the two emergency applications to the Supreme Court. Even the influential Harvard Law Review lent intellectual credence to that notion when she published a note in February on new legal theories that would expand states’ power over elections — and election results.
And the roots of this theory in conservative legal circles may go back further. Like books like Jane Mayer’s”black silver“Nancy MacLean”Chained Democracy” and that of Anne Nelson”shadow network reported, a central strategy in the conservation ecosystem over the past 50 years has been the establishment of academic bridgeheads where conservative ideas (and thinkers) can be sponsored, incubated and then disseminated with the imprimatur of intellectual legitimacy. Ideas matter, and getting them out into the mainstream takes both time and validation by opinion leaders. It may not be a coincidence that several of the most notable early defenders of this theory of extraordinary state power over elections after the Bush versus Gore decision were tied to the University of Chicago Law School, historically a conservative beachhead.
Republican lawmakers and their allies are also working to further normalize the rhetoric around radically expanded state power among the public. In November 2020, Donald Trump’s Department of Homeland Security declared the 2020 election the safest in the nation’s history. Yet radicalized Republican lawmakers and conservative media sources have bought in the big lie. These legislatures then used the Big Lie as a pretext for additional voting restrictions, to install partisan actors in positions that could prevent the certification of honest and accurate results, and to order costly audits and reports questioning the results of the elections.
Just last week, the far-fetched investigation into Wisconsin’s 2020 election came to an end. The final report (delivered to perhaps the most gerrymandered legislature in the land) is all the more astonishing because it was authored by a retired state judge. It affirms without ambiguity that the legislator has the absolute power to “decertify” presidential voters if the Legislature concludes that they were, vaguely, “not the list of voters that most closely matched the election if organized in accordance with all relevant laws of Wisconsin.”
While this report has no legal authority, it further disseminates these ideas, keeps them current, and serves to spread and normalize rhetoric that shocks conscience now, but may not for long. It’s yet another reminder that Republicans are actively and openly plotting for the next January 6 – and that next time they will be in a better position to achieve what was once unthinkable.
Democracy checkmate in state capitals
Republicans have no popular mandate for the policies they pursue in state legislatures, whether it’s banning the books or restricting reproductive rights. They fear the changing demographics of an increasingly multiracial nation. And so they broke faith with democracy and rig rules to entrench themselves in office almost in perpetuity.
Sometimes democracies crumble violently right in front of us. The threat we face is different: a crackpot legal theory that could be accepted by ideologues in robes sitting on the highest court in the land, blocking, one by one, all avenues for voters, courts, elections or anything else to stop them from turning our democracy into something unrecognizable. Let’s be clear: the Independent States Legislature theory aims to pave the way for unchecked power in the runaway state legislatures. So while voters won a rare and significant victory in the Supreme Court this week, pay close attention: the storm clouds have yet to dissipate.
Learn more about state legislatures – where democracy is in deep trouble: