If you care about our democracy in this country get ready to be really mad about what is coming from this Supreme Court.
The Republican Party is pushing the nonsensical “independent state legislature theory,” which could give state legislatures complete control of congressional redistricting and federal elections. Under their theory, it is possible that neither governors, nor courts, nor independent commissions get any say in the process. And now, conservative justices on the U.S. Supreme Court have agreed to hear a North Carolina case that tests this new legal “theory.”
The Supreme Court will take up a case, Harper v Moore in a few days. This is a case that could upend our current electoral system by giving state legislatures the super power to pass laws that would allow their state houses control over the election rules governing NATIONAL elections and gerrymandering without the ability for state courts or governors or independent commissions to exercise any oversight (unlike our system today). That oversight is crucial to curb laws that are overbroad or unfair to disenfranchised groups of voters or favor one party over another.
We can predict that Republican led state legislatures will try to use this power to create election laws that would keep Republicans in power nationally even if voters in their state did not vote for that outcome. We know this based on information exposed by the January 6th Committee. This radical shift in power to state houses that seems to be coming soon from the Supreme Court would be extremely dangerous and destructive to our democracy. Instead of needing a January 6th insurrection to install a Republican regime in perpetuity using the John Eastman ploy (substituting a fake, illegal slate of electors that GOP state legislatures want instead of what the voters voted for) the installation of Republican regimes in power in perpetuity could be accomplished legally by Republican state houses across the country generating laws that are essentially heads we win, tails we win outcomes for the party in power in the state houses.
How Could This Work?
Remember Bush v Gore? Yeah, go into the way back machine and recall how Gore’s loss depended on Florida and those hanging chads that some Floridians failed to punch out well enough to declare a clear winner in their state. How was that going to be resolved? That case went to the Supreme Court, remember? and that’s where we first got a glimpse of this radical reading of the Constitution from Justice Rehnquist. He wrote a concurring opinion and in that opinion he brought up the fringe idea that the Constitution gives the state legislatures the power to influence the outcome of national elections. In Bush v Gore there was uncertainty because of the hanging chads. The idea was that if there is uncertainty, the state legislature should be empowered by (a misreading of language in the Constitution) to make the final decisions. Depending on how the Supreme Court decides Harper, a state’s own courts or governors might no longer have the power to weigh in or counter or blunt the power of state houses when it comes to sorting out disputes in presidential elections or congressional maps.
Who would be the ultimate arbiter? Take a guess. Did you guess the Supreme Court of the United States? If you did, give yourself a pat on the back. You realized that the Supreme Court is pushing power down to the state houses (there are 30 states that have red state legislatures that are kept red thanks to gerrymandering) and allowing themselves (with five super ruby red Christian Nationalist Supreme Court justices) to function as the ultimate determiner of our national elections.
Does that smell bad to you? Does it make you wonder if this is the ultimate playbook the rightwing crafted and implemented to create a Christian Nation? Look, I don’t want to be cynical or push conspiratorial thinking but I just can’t help myself when it comes to the ISL theory and what I think we are about to get from this extremist Court.
The Independent State Legislative Theory was considered to be very squirrely thinking at the time of Bush v Gore. But as we have seen over the past years, right wing fringe thinking has become mainstream thinking in a radicalized Republican Party that is allied with a Christian Nationalist movement. This extremist minority is trying to do everything possible to keep white people in power in a rapidly changing nation with demographics that clearly show a rising tide of black and brown people destined to become the majority. To win as a minority party Republicans must cheat since they can’t afford to lose the hard core MAGA/white supremacist types who are the animating force of the GOP these days. When it comes to cheating, the GOP cheats by gerrymandering and voter suppression, disinformation and misinformation. And now we have the Independent State Legislative Theory which I believe is another tool in the toolbox that the radical right wing will employ to allow the Republicans greater access and, perhaps, never ending national political power.
What the Heck is the Independent State Legislature Theory? A Deeper Dive
The independent state legislature theory is a reading of the Constitution, pushed in recent years by a small group of advocates, that would give state legislatures wide authority to gerrymander electoral maps and pass voter suppression laws. It has even been used as political cover to try to overturn elections.
The Constitution delegates power to administer federal elections to the states, subject to Congressional override. There is, however, a disagreement about how much power is delegated and to which state actors exactly.
There are two relevant clauses. One is the Elections Clause, which reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”
The other is the Presidential Electors Clause, which reads, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”
The dispute hinges on how to understand the word “legislature.”
Proponents of the independent state legislature theory insist that these clauses give state legislatures exclusive and near-absolute power to regulate federal elections. The result? When it comes to federal elections, legislators would be free to violate the state constitution and state courts couldn’t stop them. (Brennan Center)
In other words, if the Supreme Court (consciously and cynically) misreads the word “legislature” to mean the state house legislatures not the entire system of representative state government, then the Supreme Court could grant state houses vast power to decide national election procedures and redistricting maps without being subject to review by state courts.
50 State Supreme Court justices have filed an amicus brief in this case protesting the Independent State Legislative Theory. These state judges are protesting the fact that they would be robbed of their current power to review state house laws that are unfair to voters or unconstitutional in some other way. Without that oversight, the Supreme Court would be the sole authority to rule on unfair election laws generated by state houses. MAGA Republicans are exerting great influence in red state legislatures. They will predictably do everything they can to gain and maintain power for the MAGA GOP in order to create a glidepath to put a Republican administration into power in 2024 and beyond.
Making the Eastman Playbook a Reality?
What Trump was trying to pull off to stay in power in 2020 was a game plan pushed by John Eastman, Guiliani and other Trump allies. They enlisted corrupt state legislative leaders in key battleground states to assemble Republican state legislators to submit a bogus alternate slate of Trump loyal electors to Pence. Pence was being heavily pressured to use these slates to create Electoral College uncertainty on January 6th. The plan was for uncertainty to be the predicate for throwing the final tally, the final say about who was president, over to the House of Representatives where Trump would win. Why? Because our Constitution has a backup system if there is uncertainty in the Electoral College– the decision about who wins the presidency gets thrown to the House and there, based on the number of state legislatures controlled by Republicans, Trump would have won because there are 30 red state legislatures that would have voted for him.
That playbook did not work in 2020. The Eastman plot was illegal because in 2020 the only chaos and uncertainty in the Electoral College was being injected by Trump and his allies. The election itself was a free and fair election that Biden won. Trump and his allies in the GOP knew they lost but pretended they won. They are maintaining the Big Lie to this day.
But if the Supreme Court decides that the so-called Independent State Legislature theory is the new law of the land, the John Eastman playbook could work in 2024.
As Jennifer Rubin writes:
The so-called “independent state legislature theory” would give state legislatures carte blanche to violate their own state constitutions, substitute their decision for the will of the voters and deprive state courts of the right to interpret their own laws and constitution. It is a recipe for chaos and further erosion of our democracies. (Jennifer Rubin columnist for the Washington Post)
Changing the Electoral Count Act Would Not Solve This Problem
Senators, including Amy Klobuchar, have worked diligently on the Electoral Count Act to make it more clear that a Vice President is only in a ceremonial role when it comes to the Electoral College counting votes from each state on January 6th. This is an effort to prevent another January 6th type insurrection from happening in the future.
Mitch McConnell is on board with these changes along with a number of Republican Senators. The problem is that shoring up the ECA will do nothing to prevent the Supreme Court from giving state houses the super power to ignore the will of the voters in their state if they choose to do so by making the Independent State Legislature Theory the law of the land. If ISLT becomes the law, there would be no need for an insurrection on Electoral Count Day. The insurrection will have taken place in those Republican states in advance of January 6th and their actions will not only be legal but they could be reviewable only by the Supreme Court. The ISLT could create an end run around the need for another January 6th insurrection in 2024. Much will depend on how broadly or narrowly the Court grants this power to states.
What We Can Do to Counter This Attack On Our Democracy
We should not be caught flat footed here. We know that 3 of the current Supreme Court justices like the idea of the Independent State Legislative Theory because they have said so: Thomas, Alito and Gorsuch. Kavanaugh seems to be waffling but he might be convincible. We do not yet really know how Amy Coney Barrett views this radical right wing idea. She is a deeply Christian woman who clearly has a rightwing alliance when it comes to cultural issues. We have already seen that this Court is unfettered about overturning precedent. They did that in the Dobbs case by overturning almost 50 years of precedent established with Roe.
Much will depend on the willingness of Kavanaugh and Barrett to abandon democracy in the service of Christian Nationalism with the goal of having our country run by a right wing Christian minority. Much would also depend on how broad or how narrow the decision is by the Court. Marc Elias and his team will be arguing the case before the Supreme Court. They will make the case for a narrow decision if the Court decides to embrace the Independent State Legislative Theory. They have good, logical, fact based, precedent based arguments. But this is a radical Court and it might decide to exert its power now while it can by taking a more maximalist approach.
I don’t think we should wait to see how narrow or broad the coming decision will be. We have already seen how much this ultra right Supreme Court favors granting power to the states and breaking down the power of the national government. We know the 6 extremists are reveling in their power despite polls that show the Court is losing the faith of the American people.
Gallup reports: only 40% of those polled said they approved of the job done by the court, an 18-percentage point drop from 2020, tying for the lowest approval numbers found by Gallup.
I think we should expect that Barrett and Kavanaugh will join Gorsuch, Alito, and Thomas to decide that some version of the Independent State Legislature Theory will become available to state legislatures to use to solidify their power.
[T]here is little doubt that the maximalist version of such a doctrine – in which state constitutions and voter-initiated constitutional amendments or statutory initiatives are unconstitutional if they impose any substantive constraints on state legislatures’ regulation of federal elections – would be highly destabilizing to the federal election process.
All the substantive rules in such sources regulating federal elections would no longer be in effect, until
state legislatures decided which of these rules to enact. The ability of voters and state constitutions
to constrain state legislatures from self-interested manipulation of the laws regulating federal
elections would be ended. That is a troubling prospect. [Richard Pildas- Testimony before Congress]
We the People need to be pro-active. There are three key states that need at least one of the chambers to be flipped from red to blue in the midterm election THIS NOVEMBER for us to hold the line against this likely coming assault on our democracy. Those states are Arizona, Michigan and Pennsylvania. We also have to hold onto every Democrat in Nebraska’s state house.
There are groups that are already fighting back:
1) The States Project. It has a plan to protect the path to 270. You can go to their website here: If you believe that voters should matter in a democracy, join us.
2) The DLCC is also working to increase the number of state house legislators who believe in maintaining a true democracy. You can help the DLCC. A quick google search will show how to help.
3) The NDRC (National Democratic Redistricting Committee) is working hard to counter ISLT. Marc Elias has a team of attorneys who will do their best to get a narrow ruling that would limit the damage from this Supreme Court opinion.
On October 4th the Supreme Court has scheduled arguments in Harper v Moore. Stay tuned for that. We will not get the final ruling right away. But you can often tell how the Court is will decide a case or at least how it is leaning by the questions justices ask during oral argument.
What Could Limit the Harm from ISLT?
There is a chance that if we get out the vote for Democratic state legislative representatives in 2022 who would not allow state houses to pass state laws that thwart the will of the voters we could keep our democracy intact. So vote for Democrats up and down the ballot and help everyone you know to understand the danger we face by sharing this post!
This really should not be a politicized issue. This is a danger to our country that arose from extremism that has taken hold of the GOP. Trump and McConnell and the Federalist Society got Gorsuch, Kavanaugh and Barrett on the Court. They joined Thomas and Alito to form a bloc on the Court that is determined to undo progressive advances. Dobbs shocked us as an assault on women’s freedom. But this court is not finished shocking us. And Harper is likely to be a hit job on our representative democracy moving our country closer to autocracy or what is termed an “illiberal democracy” where governing power is not determined by the will of the voters. Please share this post and do what you can to get out the vote in November.