Can An Outlier Legal Theory Really Threaten America’s Democracy?

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In these strange times, unfortunately, the answer is yes.

While very few of us have the interest or bandwidth to be rabid U.S. Supreme Court-watchers, a decision handed down this week by Chief Justice John Roberts proved a momentous one, as it examined whether a fringe legal theory should have the power to upend the nation’s elections.

The issue at hand turned on an outlier theory, often referred to as I.S.L.T – short for “independent state legislature theory.” Sounds like a delightful thing to unpack, right?

I.S.L.T. has zero case law behind it and stems from what can only be called a creative reading of the U.S. Constitution’s Elections Clause, which holds that “the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”

As you can imagine, the Elections Clause has become very stimulating reading for a growing slice of the electorate hunting for ways to punch holes in America’s elections. 

Some of the liberties its adherents say I.S.L.T. bestows on state legislatures include: virtually unchecked power to run federal elections, the drafting of electoral maps for partisan advantage, banning various forms of voting like mail-in ballots and – you knew this one was coming – overturning the results of elections. 

A few weeks back, Power Corridor highlighted in its Friday “Power Reads” section a story in The New Yorker explaining some of the finer nuances of I.S.L.T. Some insights from the article:

I.S.L.T. [is] a line of legal reasoning that scarcely existed twenty-five years ago, but has since traveled from the fringes of legal discourse to the centers of power. Some advocates of the theory interpret a clause of the Constitution to mean that state legislatures can run federal elections almost however they choose…challenging election results on thin procedural grounds. Even when these actions violate state constitutions, the advocates say, state courts would be powerless to stop them. (It’s this lack of oversight that would render the legislatures “independent,” though a less euphemistic word for it might be “rogue.”) A still more drastic version of the theory—not one directly at issue in the case, but one that might follow from its logic—could allow a legislature to award its state’s Electoral College votes to any presidential candidate, even one who lost its popular vote.” 

Although I.S.L.T. is not legal doctrine (in other words, it has not been established by precedent in the common law), that’s not stopped compact groups of enthusiastic election-overturners from trying to use it to chisel away at the laws of our land.

Following the 2020 presidential election, former President Donald Trump’s lawyers urged the Supreme Court to disregard the “unlawful election results” of Pennsylvania, Wisconsin, Michigan and Georgia. (The situation, which did not end well for some states, brought America such embarrassingly laughable cases as “Texas v. Pennsylvania.”) 

The request made by Trump’s lawyers came on the heels of the disproved claims of election fraud. The lawyers argued that the Supreme Court should let the state legislatures decide on the outcomes of the elections instead. Their line of reasoning: I.S.L.T.

Similarly, I.S.L.T. cropped up again in defending attempts to dissolve the Wisconsin Election Commission and the partisan gerrymandering of North Carolina’s congressional map amid efforts to overthrow the 2020 election. (Gerrymandering is named for Elbridge Gerry, an American founding father and former vice president known for redrawing voting districts to give his favored party an advantage in elections – a move understood to be thoroughly un-democratic.) 

Which neatly brings us to the Supreme Court’s decision this week. This case focused on the gerrymandering of North Carolina’s 2022 congressional map, which the North Carolina Supreme Court found to be engineered to cement a long-term Republican advantage in a state known for extremely tight elections.

Republican lawmakers then sued, asking the Supreme Court to find that North Carolina courts and other state entities may not meddle with the election rules set by state legislatures when it comes to federal elections. Their rationale: I.S.L.T. 

The Supreme Court did not agree the I.S.L.T. argument held any water, striking a major blow to the theory. In a 6-3 opinion supported by liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, as well as conservative justices Brett Kavanaugh and Amy Coney Barrett, Chief Justice Roberts wrote that the North Carolina Supreme Court did not violate the Elections Clause of the U.S. Constitution when it invalidated North Carolina’s congressional map. 

“When state legislatures act pursuant to their Elections Clause authority, they engage in lawmaking subject to the typical constraints on the exercise of such power,” he wrote. “In sum, our precedents have long rejected the view that legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution.”

Case closed? Not exactly. In a twist that could only happen in America, as this case was making its way to the Supreme Court, the North Carolina Supreme Court flipped its majority to Republican and reversed its prior decision to back the defenders of the Republican-drawn congressional map. 

In other words, North Carolina’s gerrymandered map can now stand.

“In short, this case is over, and petitioners won,” Justice Clarence Thomas wrote in his dissenting opinion, joined in full by Justice Neil Gorsuch and in part by Justice Samuel Alito.

He argued that the case should have been dismissed as moot, as plans for the map were validated by the newly reconstituted North Carolina Supreme Court. “It follows that no live controversy remains before this court,” he said. 

Certainly a loss for I.S.L.T., but America’s shamefully skewed maps – which have outlived Gerry by two centuries – live on.

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