The Supreme Court made no ruling on the merits, declining to hear the case because Texas had no standing to sue.īut if the Supreme Court adopts the ISL doctrine in Moore, the argument that Texas made will become a model in 2024. Texas argued that the election results in Pennsylvania, Georgia, Wisconsin, and Michigan were unconstitutional because “executive and judicial officials made significant changes to the legislatively defined election laws,” for example by changing deadlines for mail-in ballots because of the coronavirus pandemic. In litigation over the 2020 election, Texas and other Republican-led states showed exactly how that argument would work when they asked the Supreme Court to block the certification of Biden electors in four swing states. But in that case, ISL still offers plenty of room to overturn the people’s will. It might acknowledge that, once having passed a law providing for a popular vote for president, a state legislature could not strip voters of that power after they voted. If you give the legislature a blank check on the manner of appointing presidential electors, then a Republican majority could-in the most muscular version of ISL-simply disregard a Biden victory in the state’s popular vote and appoint Trump electors instead.Įven this Supreme Court might not go that far. (Until ISL came along, the long-standing answer was “yes.”) But advocates of the independent-state-legislature doctrine have their eyes on a bigger prize: the presidency. The immediate question in Moore is whether the state supreme court, applying the state constitution, can override the legislature’s choice on the manner of drawing election districts.
Where John Roberts and Amy Coney Barrett stand on the doctrine is unclear. A fourth justice, Brett Kavanaugh, wrote a concurrence in which he invited the North Carolina Republicans in the Moore case to return to the Supreme Court after losing an emergency motion. None of those writings carried the force of law, but together they served as invitations for a plaintiff to bring them a case suitable to their purpose. The idea that legislatures stand unbound by any limit from their own founding documents is a fringe debating point invented for Republican political advantage.Įven so, three justices-Samuel Alito, Neil Gorsuch, and Clarence Thomas-have spent two years campaigning for the independent-state-legislature doctrine in judicial statements and dissents. In another redistricting case four years earlier, the Court confirmed long-standing precedent that “legislative” powers are defined and controlled by state constitutions.
Common Cause, that “state constitutions can provide standards and guidance for state courts to apply” in redistricting cases. It has never been accepted by any state or federal court, and the Supreme Court itself ruled as recently as 2019, in Rucho v. constitutional functions.Īdam Serwer: Is democracy constitutional? State courts and state constitutions, by this reading, hold no legitimate authority over legislatures in the conduct of their U.S. The doctrine is based on a tendentious reading of two constitutional clauses, which assign control of the “Manner” of congressional elections and the appointment of presidential electors in each state to “the Legislature thereof.” Based on that language, the doctrine proposes that state lawmakers have virtually unrestricted power over elections and electors. Republican lawyers, taking note of their structural advantage among battleground-state lawmakers, set forth the “ independent state legislature” (ISL) doctrine. And if democracy is subverted in just a few states, it can overturn the election nationwide. The Moore case marks the debut in the nation’s highest court of a dubious theory that could give Republicans legal cover in 2024 to do as Trump demanded in 2020. Donald Trump then tried and failed, lawlessly, to muscle the GOP state legislators into discarding Biden’s victory and appointing Trump electors instead. Joe Biden won five of those six swing states in 2020. No comparable red-trending states are locked into Democratic legislatures. Six swing states-Pennsylvania, Michigan, Wisconsin, Arizona, Georgia, and North Carolina-are trending blue in presidential elections but ruled by gerrymandered Republican state legislatures. To understand the stakes, and the motives of Republicans who brought the case, you need only one strategic fact of political arithmetic. The Court’s right-wing supermajority is poised to let state lawmakers overturn voters’ choice in presidential elections. Harper, a North Carolina redistricting case, isn’t just bad news for efforts to control gerrymandering. Late last month, in one of its final acts of the term, the Supreme Court queued up another potentially precedent-wrecking decision for next year.