Experts warn of anti-democratic peril from upcoming SCOTUS case

The Independent State Legislature Doctrine becoming legal precedent is a ‘frightening prospect,’ panelist says

By: - September 16, 2022 5:24 am

U.S. Supreme Court | Susan J. Demas

Updated, 12:41 p.m., 9/16/22

Despite seeing progress in advancing voting rights in the last several years, the organization that spearheaded the 2018 initiative that created the Michigan Independent Citizens Redistricting Commission says an upcoming case before the U.S. Supreme Court (SCOTUS) threatens to undo that effort — and much more.

Voters Not Politicians (VNP) held a panel discussion Wednesday night to highlight the implications to voting rights that may result from the case of Moore v Harper which will be heard by the right-wing court this fall.

The case centers on newly drawn maps for North Carolina’s 14 congressional seats. The North Carolina Supreme Court found the maps were gerrymandered, thus violating the state’s constitution.

Republicans in the state appealed that decision, arguing that state legislatures have the sole authority to define congressional districts.

That argument is based on a previously obscure legal theory known as the Independent State Legislature Doctrine (ISLD) previously reported on by the Advance. It interprets the Elections Clause in Article 1 of the U.S. Constitution and the Presidential Electors Clause in Article 2, 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.

An outdated legal theory could let Republicans subvert election results and redistricting processes

The discussion was moderated by Nancy Wang, executive director of VNP, which is also part of the Promote the Vote coalition behind Proposal 2 of 2022, an amendment to the state Constitution that seeks to expand voting access by requiring nine days of early in-person voting, allowing military or overseas ballots to be counted if postmarked by Election Day and requiring at least one drop box in every municipality and at least one drop box for every 15,000 registered voters in a municipality.

However, Wang said that if the high court were to embrace the ISLD in the Moore v. Harper case, all of that could be upended.

“We have the state parties and the state Legislature that have shown a willingness to use their power to keep themselves in power, even while it undermines our elections,” she said. “And now the Supreme Court has been thrown this Moore v Harper case and with it, the possibility that they could give our state legislature overarching, unchecked power to regulate our federal elections, to set rules that they want for our federal elections that we couldn’t do anything about, either by citizens initiative or constitutional amendment or state court or the governor.”

Joining in the discussion was the Brennan Center for Justice’s Deputy Director of Democracy Tom Wolf, who is currently focused on the ISLD and its upcoming SCOTUS review.

Wolf called it a “fringe” theory that first appeared as a non-precedental attachment in the Bush v Gore opinion in 2000 that ultimately paved the way to the White House for Republican George W. Bush. 

Despite being discredited at the time, Wolf said the ISLD came up again in 2015 when the court, in a 5-4 decision, upheld the validity of the Arizona Independent Redistricting Commission and then again in 2020 when operatives for the reelection campaign of former President Donald Trump cited it as a pretext for overturning election results.

While it didn’t prevail in either of those instances, the doctrine has received some measure of support by at least four right-wing justices: Chief Justice John Roberts and Associate Justices Samuel Alito, Clarence Thomas and Neil Gorsuch. 

Trump’s appointment of Amy Coney Barrett to the court could provide a potential fifth vote, creating the possibility of the ISLD becoming precedent, which Wolf finds disconcerting.

SCOTUS panel discussion | Screenshot

“It’s a remarkably anti-democratic position,” said Wolf. “This case is about whether the Supreme Court is going to continue to reinforce the system of checks and balances that has existed in this country since it’s beginning centuries ago, or whether it’s going to initiate a new rule that says for the first time that state legislators only get to decide what the rules for federal elections are.”

Wolf said if the doctrine is approved, the result will be legislative supremacy in which voter’s powers will be stripped away and handed to state legislators, with the U.S. Supreme Court becoming the ultimate arbiter of whether the legislators are behaving in a lawful manner. 

Gubernatorial vetoes, state court judicial review and voter-initiated ballot initiatives would all become null and void on any issue related to federal elections.

“That is a frightening prospect,” said Wolf.

Also speaking at the forum was writer Meaghan Winter, author of “All Politics is Local,” which makes the case that the Democratic Party for decades has been overfocused on federal elections, ceding control of state governments to the GOP and right-wing interests.

“For many years, starting soon after the Brown v Board of Education decision in the ‘50s, when the Supreme Court required the integration of schools, libertarian and what we would now call right-wing donors, decided that they would fund state level policy to push their agenda,” she said. “And by the 1970s, not only were they pushing racist bills about school segregation and funding, but they were also committed to changing the way our government functions.”

She said the ISLD is an extension of that effort.

“So I think that’s a really important thing to realize that this has been happening for decades,” said Winter. “These ideological actors, who are very well funded, have been focusing on changing the actual rules, not just electing someone that they favor and not just pushing a policy about this or that issue. They really have been trying to undermine the basic tenets of our democracy.”

Former state Sen. Buzz Thomas (D-Detroit) agreed that local races are critical.

“I absolutely agree that we have to frankly pay attention to state legislative races as Republicans have done for the past 20 years,” said Thomas. “They very meticulously focused in on state legislatures. But I think also, so much of this is predicated on the Big Lie and its criticism that our elections are run inappropriately, unfairly or that something’s wrong.”

Thomas said in the long term, providing more funding and resources for election officials was a key way to help alleviate the idea that elections are inherently faulty, but more needed to be done now.

... Now the Supreme Court has been thrown this Moore v Harper case and with it, the possibility that they could give our state legislature overarching, unchecked power to regulate our federal elections, to set rules that they want for our federal elections that we couldn't do anything about, either by citizens initiative or constitutional amendment or state court or the governor.

– Nancy Wang, executive director of Voters Not Politicians

“I think in the short-term, we really do need to pay attention to boards of canvassers here in Michigan,” he said. “We’ve seen through just the most recent ballot initiatives where the state board of canvassers deadlocked and was forced by the state Supreme Court, to reverse itself and put Promote the Vote and the Reproductive Freedom For All [abortion rights] initiative on the ballot, because they essentially overstepped what their role was.

“Republicans, in particular, have spent a lot of time rebuilding their membership on these boards of canvassers within local communities,” noted Thomas. “And, you know, a lot of times we forget that Michigan is a very decentralized state when it comes to election administration. There’s more than 1600 election jurisdictions. We’ve got 83 counties, so there’s lots of ways to get through the certification of elections or creating opportunities to not certify elections. And if we don’t get a handle on those issues, I think we run the risk of creating problems … that we can’t fix. It’s in our power to fix, and we should.”

Wolf concluded the event by focusing on one potential outcome from Moore v Harper.

“One really core implication of this case is that if the court rules the wrong way, it’s going to kneecap the national movement to stop partisan gerrymandering,” he said. “That’s probably the most extreme abuse in terms of something that we’re going to have very few options to deal with.” 

“For other things there’s still a federal constitutional law,” he said. “You can still push back against fake electors using the federal Constitution. You can still push back against racial discrimination using the federal Constitution. But I mean, you’re relying on the Supreme Court to do that. So we really need to avoid that outcome if we can, because we want belts and suspenders. We’re at the very least gonna lose the belt, while the Supreme court is busy also kind of cutting through the suspenders. So we don’t want that.”

Correction: This story has been updated that Wolf had the last statement.


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Jon King
Jon King

Jon King 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 2021 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, where he also serves on the Board of Directors for the Livingston Diversity Council.