‘Independent State Legislature Theory’ Fails – True Constitutionalists Should Applaud

The U.S. Supreme Court’s Moore v. Harper decision got headlines for torpedoing a fringe legal theory that state legislatures could act without oversight or check on their power to laws regulating elections. But it also upheld a more fundamental concept: that ours is a system of checks and balances which no creative reading of the Constitution can undo. (RELATED: California Governor Proposes Constitutional Amendment To Curb Gun Rights)

As SCOTUSblog’s Amy Howe writes, the so-called “independent state legislature theory” would have allowed state legislators to act on election matters free of any court oversight:

[North Carolina Republican] legislators came to the U.S. Supreme Court last year, challenging the state supreme court’s decision. They argued that when it set aside the legislature’s congressional map, the state court violated the “independent state legislature” theory. That theory, which the Supreme Court has never endorsed in a majority opinion, rests on two provisions of the Constitution. In Moore, the legislators point to one of those provisions, Article I’s elections clause, which provides that the “Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof.” Article II’s electors clause provides that states shall appoint presidential electors for the Electoral College “in such Manner as the Legislature thereof may direct.” These provisions, the theory’s proponents contend, mean that state courts lack the power to supervise how state legislatures run elections for Congress or the president – including, as in this case, the power to set aside congressional powers.

That’s an important point as the nation revs up for the 2024 presidential race. In the aftermath of the 2020 election, Republicans peddled the independent state legislature theory as a justification for trying to reverse the election results in states Donald Trump lost to Joe Biden. As former Federal Appeals Court Judge Michael Luttig wrote:

The cornerstone of the plan was to have the Supreme Court embrace the little known “independent state legislature” doctrine, which, in turn, would pave the way for exploitation of the Electoral College process and the Electoral Count Act, and finally for Vice President Mike Pence to reject enough swing state electoral votes to overturn the election using Pence’s ceremonial power under the 12th Amendment and award the presidency to Donald Trump.

The independent state legislature doctrine says that, under the Elections and the Electors Clauses of the Constitution, state legislatures possess plenary and exclusive power over the conduct of federal presidential elections and the selection of state presidential electors. Not even a state supreme court, let alone other state elections officials, can alter the legislatively written election rules or interfere with the appointment of state electors by the legislatures, under this theory.

That legal strategy flopped in courtroom after courtroom in 2020. Now, it’s bombed on the biggest legal stage of them all. And that’s a good thing for anyone who believes that a robust system of checks and balances is essential not just to a limited government but defending individual liberty.

Those who call themselves constitutionalists should applaud Chief Justice John Roberts’ when he wrote:

Marbury v. Madison…famously proclaimed this Court’s authority to invalidate laws that violate the Federal Constitution. But Marbury did not invent the concept of judicial review. State courts had already begun to impose restraints on state legislatures, even before the Constitutional Convention, and the practice continued to mature during the founding era. James Madison extolled judicial review as one of the key virtues of a constitutional system, and the concept of judicial review was so entrenched by the time the Court decided Marbury that Chief Justice Marshall referred to it as one of society’s “fundamental principles.”

To blithely cast aside a fundamental principle in the pursuit of power unmasks the theory’s proponents as mere partisans seeking to get what voters refused to give them.

The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.

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