An outdated legal theory could let Republicans subvert election results and redistricting processes

By: - March 30, 2022 3:28 am

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An obscure and heretofore discredited legal theory is shaping up to potentially become the next tool in efforts to give Republican-led state legislatures like that in Michigan sole authority over election law.

The Independent State Legislature Doctrine has been described by SCOTUSblog as positing “that the Constitution gives state legislatures nearly unfettered authority to write the rules for federal elections, with little or no oversight from state courts.”

“By this doctrine, the legislature would be sovereign,” said Mark Brewer, former Michigan Democratic Party chair and a longtime election lawyer.

Mark Brewer | Laina Stebbins

He told the Michigan Advance that if such a doctrine were implemented, legislatures could make whatever decision they wanted. “So you would have state legislatures in and of themselves having the ability to overrule not only a state court, but even a state Constitution.”

The doctrine is based on two clauses within the U.S. Constitution. The first is the Elections Clause in Article 1, which provides state legislatures the authority to set the “time, place and manner” of federal elections, but also gives Congress the power to “at any time by Law make or alter such Regulations.”

The second is the Presidential Electors Clause in Article 2, which reads: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” to select the president. 

Proponents of the theory interpret the clauses to mean that legis­latures are the sole state entity that can regu­late federal elec­tions, and as such can overrule state courts, and even state consti­tu­tions, on such matters. 

In Michigan, such an interpretation would mean the district maps recently enacted by the Michigan Independent Citizens Redistricting Commission could be undone by a vote of the Legislature, invalidating the will of residents who overwhelmingly voted to have the nonpartisan commission create maps and not a partisan legislature. 

That’s exactly the position that Republican legislators in North Carolina took when they appealed to the U.S. Supreme Court and requested reinstatement of the legislature’s original map for congressional districts, which had been rejected by both a state court and the North Carolina Supreme Court as being in violation of that state’s constitution. 

While numerous legal experts have called the doctrine a misreading of the Elections Clause (among them Ethan Herenstein and Thomas Wolf with the Brennan Center for Justice, who called the doctrine “merit­less as a matter of origin­al­ism, textu­al­ism, fair repres­ent­a­tion, and preced­ent”) it has nonetheless drawn support from at least three conservative Supreme Court justices, and interest from a fourth.

While the nation’s high court declined to take up the North Carolina case, Justice Samuel Alito dissented, describing the Independent State Legislature Doctrine as “an exceptionally important and recurring question of constitutional law.” He was joined in that dissent by fellow Justices Clarence Thomas and Neil Gorsuch. 

While Justice Brett Kavanaugh voted with the majority to turn down the North Carolina petition, he did indicate that SCOTUS should take up the doctrine and decide on it. 

U.S. Supreme Court | Susan J. Demas

In fact, the high court has already taken up the doctrine several times in the last century and decided it didn’t hold constitutional muster. A 1932 decision rejected it, as did a 2015 ruling in which the court, in a 5-4 decision, upheld the validity of the Arizona Independent Redistricting Commission. 

But there’s now a 6-3 conservative majority and is considered to be the most right-wing court in decades that has disregarded precedent in several cases.

And the doctrine gained new momentum in the aftermath of the 2020 election, in which the high court was asked to rule on several challenges to the results. While none of those were ultimately successful, the doctrine was cited in many of those cases, with Alito, Thomas and Gorsuch expressing some measure of support.

In most of those cases, the doctrine’s interpretation of the Presidential Electors Clause was at play. In fact, it may have been a topic of conversation during the much-publicized meeting between then-President Trump and Michigan GOP leaders, including Senate Majority Leader Mike Shirkey (R-Clarklake) and then-House Speaker Lee Chatfield (R-Levering), two weeks after the November 2020 election.

Brewer told Michigan Advance that he has no doubt the doctrine was part of Trump’s plan to overturn the 2020 election.

“That explains everything Trump was doing back in the fall of 2020 … summoning Chatfield and Shirkey to Washington,” said Brewer. “I’m sure that this was the topic of conversation. He was trying to persuade them and the legislature to cast Michigan’s electoral votes for him.”.

Brewer called it “a very dangerous, anti-democratic doctrine” that essentially undoes the balance of power between three co-equal branches of government.

Projection on the Trump International Hotel Washington, D.C., after House Speaker Lee Chatfield, Senate Majority Leader Mike Shirkey and other Republicans met with President Trump in the White House, Nov. 20, 2020

He also noted that it only takes four votes on the Supreme Court to consider a case, and five votes to adopt it. While the court rejected the doctrine in 2015 in the Arizona case, two of the five justices who voted it down, Anthony Kennedy and Ruth Bader Ginsburg, are no longer there. 

Chief Justice John Roberts — a GOP-nominated justice who has sometimes sided with the liberal wing — issued a blistering dissent in that case in which he said the majority was relying on “disconnected observations about direct democracy, a contorted interpretation of an irrelevant statute, and naked appeals to public policy.” That could make him the fifth vote for approving the doctrine, although his reputation as an institutionalist might complicate such a presumption.

However, Trump’s appointment of Amy Coney Barrett to the court could mean another potential fifth vote, even though when questioned during her confirmation hearing about the 1932 case that cited the doctrine, Barrett said she had not heard of it. Presumably, that would change if the court takes up the issue.

While trying to predict future votes on such issues can be an exercise in futility, the fact that the doctrine seems to be gaining momentum remains a concern for legal experts.

Ben Geffen is an attorney with the Public Interest Law Center who has assisted fighting gerrymandered maps in Pennsylvania. He told the Michigan Advance that what is most perplexing in those advocating for this doctrine is that one of the potential results would be to allow federal courts to second guess state supreme courts on decisions regarding state constitutions.

“That’s a weird one,” said Geffen. “Both because it doesn’t have any guardrails on it and because it is being advanced by conservative attorneys who normally take exactly the opposite stance and favor a strong version of federalism in which as much power as possible is devolved from the federal government to the states and federal courts in particular are discouraged from meddling in state court affairs. This is the exact opposite of that.”

Geffen notes that the Elections Clause is very clear that Congress has the final authority in these matters and that even if SCOTUS were to break with past precedent and give voice to the doctrine, it could all easily be undone with legislation.

“Even that would not freeze out Congress from stepping in and practically overturning that Supreme Court decision by passing a good law that included strong protections for voting rights or even that just said Congress acting in its authority says that state courts and state constitutions have to be listened to in these matters.”

You would have state legislatures in and of themselves having the ability to overrule not only a state court, but even a state Constitution.

– Attorney Mark Brewer

But having authority and actually using it are two different things according to Geffen, who said the Freedom to Vote Act, which is currently stalled in the U.S. Senate, would outlaw partisan gerrymandering in all 50 states. 

“As we’ve seen, it’s very hard to get a bill like that passed through both houses of Congress,” he said. “The possibility exists, but it’s not an easy lift.”

While the immediate goal of the doctrine’s proponents might be to sway future elections, there are also broader implications such a philosophy could have.  

Steven Liedel is an election attorney and one-time legal counsel to former Democratic Gov. Jennifer Granholm. He told the Michigan Advance that proponents of the doctrine are purposely engaging in an overly literal reading of these clauses that would then open the door into other seemingly settled areas of Constitutional law..

“If that’s the view that you take, that if the Constitution references the legislature it only means the legislature, what sort of implications does that have for the First Amendment?” Liedel said. “The First Amendment says Congress shall make no law abridging the freedom of speech, press, religion, etc. Well, if it’s only Congress, then I guess the other branches (of government) are free to take actions that infringe on free speech, free press and religious rights. That’s where things flow from this.”

Liedel added that while the redistricting angle will likely be the quickest path to get the issue to the Supreme Court, the true goal for those pushing the doctrine is whether a majority of votes in any given state will continue to be the deciding factor when it comes to the Electoral College. 

“I have always viewed this more recently about the ability to overturn elections that they don’t like,” he said. “The redistricting process may be a convenient forum to get the issues raised and lay the groundwork … some of it from some of the same states and some of it from some of the same lawyers that were making arguments, or legislators who were making this argument after the 2020 election, now making it with regard to redistricting. Then they’ll just make that same argument in 2024 if they don’t like election results in a particular state and the legislature might be favorably inclined to do something different.”


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Jon King
Jon King

Jon King is the Senior Reporter for the Michigan Advance and has been a journalist for more than 35 years. He is the Past President of the Michigan Associated Press Media Editors Association and has been recognized for excellence numerous times, most recently in 2022 with the Best Investigative Story by the Michigan Association of Broadcasters. He is also an adjunct faculty member at Cleary University. Jon and his family live in Howell.