While this week has brought good news on voting rights from the Supreme Court, it may very well be a temporary win.
In a pair of orders issued on Monday, the justices allowed court-ordered congressional maps to stand in North Carolina and Pennsylvania, refusing to interfere with decisions by those state supreme courts. Republicans in both states had asked the court to block those maps under a tortured legal theory that has been advancing on the right, 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 unwound last decade's extreme GOP gerrymander in 2018, that court mandated what most observers consider a balanced 9-8 map that does not favor either party.
The orders indicate an unlikely alliance. While the Pennsylvania order was unsigned, it appears the three liberals were joined by Chief Justice John Roberts and Justice Amy Coney Barrett to deny the emergency application in the North Carolina case, with a concurrence by Justice Brett Kavanaugh. Justices Clarence Thomas and Neil Gorsuch joined Justice Alito's dissent.
Yet while fair maps in North Carolina and Pennsylvania dodged a bullet, there is frightening news: As we first warned in Salon last September, the Independent State Legislature doctrine remains a live threat to free elections. Alito's dissent called the ISL — which speaks to whether a state court has the power to reject laws adopted by a state legislature concerning federal elections, or whether the legislature has unfettered control — "an exceptionally important and recurring question of constitutional law."
In his separate concurrence with the North Carolina order, Kavanaugh — who has been previously receptive to this doctrine — held that it was too late for the federal courts to intervene in North Carolina right now, but that "both sides have advanced serious arguments" and the Supreme Court should resolve it soon. That's four votes right there, enough to put the case onto the court's calendar next year. There is significant reason to be alarmed that this court could then adopt a radical and antidemocratic theory that threatens the very nature of our elections and makes it easier for gerrymanders, voter suppression and electoral subversion to succeed.
What is the Independent State Legislature doctrine?
The central legal theory underpinning these efforts pushes for an expanded understanding of state power through "Independent State Legislatures." It is an interpretation of the U.S. Constitution that argues state legislatures have sole authority to set all election rules (including assigning of Electoral College votes), immune from any judicial review by state courts.
Many legal scholars believe this theory deserves condemnation, both as an antidemocratic effort to hand absolute power to often wildly gerrymandered state legislatures, but also as a departure from decades of constitutional precedent. But those scholars don't have any of the nine votes that matter.
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Four conservative justices have already indicated support: Alito, Thomas and Gorsuch in the North Carolina dissent issued this week, and Kavanaugh in his concurrence. It would just take either Roberts (whose stinging dissent in the 2015 Arizona Independent Redistricting Commission decision puts him down as a strong maybe), or Barrett to establish this crackpot theory as the law of the land.
It hardly seems to matter to Alito or his fellow conservatives that their tortured, "originalist" reading of the Constitution's Elections Clause seems little more than an effort to entrench Republican lawmakers in power, and veers wildly from Alito's recent votes on partisan and racial gerrymandering — all depending on the likely partisan outcomes.
These emergency applications may not have been the right moment for the court to squarely address this theory of radical state power. But the right moment could be coming soon, especially if the justices do decide to take up 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 election subversion, free from judicial review. Such a ruling could also shrink 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 build credibility
This push to enlarge state power is coupled with efforts to build both narrative intellectual credence for the idea of wildly expanded state power, assisted by strategic litigation brought by conservative lawyers and institutions with the aim of getting before friendly conservative courts. The end game? Nothing short of the unraveling of representative democracy itself, through a sleepy and long-overlooked level of government: state legislatures.
Many legal scholars, including Nathaniel Persily, have derided the Independent State Legislature theory, pointing out that it gives "intellectual respectability to an otherwise insane, antidemocratic argument." An upcoming law review article by Akhil Amar and Vikram Amar goes into more detail, dismantling the theory as ahistorical and "utterly indefensible."
But this once-fringe theory is making its way to the mainstream of the highly effective conservative legal project. It's not just the two emergency applications at the Supreme Court. Even the influential Harvard Law Review lent intellectual credibility to this notion when it published a note in February on novel legal theories that would expand the power of states over elections — and election results.
And the roots of this theory in conservative legal circles might stretch back farther. As books like Jane Mayer's "Dark Money," Nancy MacLean's "Democracy in Chains" and Anne Nelson's "Shadow Network" have reported, a central strategy in the conservative ecosystem for the past 50 years has been the establishment of academic beachheads where conservative ideas (and thinkers) can be sponsored, incubated and then disseminated with the imprimatur of intellectual legitimacy. Ideas matter, and getting them into the mainstream takes both time and validation by thought leaders. It is perhaps no coincidence that several of the most notable early defenders of this theory of extraordinary state power over elections after the Bush v. Gore decision were linked to the University of Chicago Law School, historically a conservative beachhead.
Republican legislators 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 own Homeland Security Department declared the 2020 election the most secure in the nation's history. Yet radicalized Republican state legislators and conservative media sources have mainstreamed the Big Lie. Those legislatures have then used the Big Lie as a pretext for additional voting restrictions, to install partisan actors in positions that could prevent honest, accurate results from being certified, and order expensive audits and reports re-litigating the election results.
Just last week, Wisconsin's wacky 2020 election probe came to its end. The final report (delivered to perhaps the most gerrymandered legislature in the nation) is all the more astonishing considering it's written by a retired state judge. It baldly asserts that the legislature has the sweeping authority to "decertify'"presidential electors if the legislature concludes they were, vaguely, "not the slate of electors that best accorded with the election if run consistent with all relevant Wisconsin laws."
While this report bears no legal authority, it further disseminates these ideas, keeping them in the news and serving to spread and normalize a rhetoric that shocks the conscience now, but might not do so for much longer. It's yet another reminder that Republicans are actively and openly plotting for the next Jan. 6 — and that next time, they'll be in a stronger position to achieve the once-unthinkable.
Checkmating democracy in the state capitals
Republicans lack a popular mandate for the policies they pursue in state legislatures, whether those involve banning books or restricting reproductive rights. They fear the changing demographics of an increasingly multiracial nation. And so they have broken faith with democracy and are rigging rules to entrench themselves in office in near-perpetuity.
Sometimes democracies unravel with violence, right in front of us. The threat we face is a different one: A crackpot legal theory that could be accepted by robed ideologues installed on the nation's highest court, blocking, one by one, every avenue for voters, courts, elections or anything at all to stop them from turning our democracy into something unrecognizable. Let's be clear: the Independent State Legislature theory aims to clear a pathway for unchecked power in runaway state legislatures. So while voters won a rare and important victory at the Supreme Court this week, pay close attention: The gathering storm clouds haven't dissipated yet.
Read more on state legislatures — where democracy is in deep trouble: