Beware the "Independent State Legislatures doctrine" — it could checkmate democracy

This Republican "weird trick" — giving state legislatures full power over elections — could be fatal to democracy


By Gaby Goldstein and David Daley | Salon Magazine | September 27, 2021



Last Friday, we finally learned that the draft report of the crassly partisan Maricopa County election "fraudit" commissioned by Arizona's state Senate Republicans failed to find voter fraud and indeed, yet again, found that Trump lost. But brazen Republican state legislatures won't stop there. These days it feels like a never-ending challenge to stay one step ahead of voter suppression and democracy dismantling efforts in Republican-controlled state legislatures.


A decade ago, Republicans gerrymandered themselves into unrepresentative majorities in state legislatures nationwide. Since then, they've been determined to keep that undue power, no matter how many constitutional guardrails they must smash along the way. Their latest scheme might be the most wild-eyed and dangerous yet.


Republicans have hit upon a legal theory that could allow them to negate state constitutions and citizen ballot initiatives that protect voters and provide them with a crucial voice. The end game? Securing a world in which only state legislatures can decide election law and declare victors. They're looking for an assist from the federal courts. And they just might get it.


This once-obscure theory — known as the Independent State Legislatures doctrine — had been a stealth effort in right-wing legal circles. But recent election-related litigation in state supreme courts and the federal courts, much of it related to the "Big Lie," has accelerated its prominence and highlighted its dangers.


Here's what the Independent State Legislature doctrine argues: The U.S. Constitution gives state legislatures the sole authority to set all election rules — including the assigning of Electoral College votes — independently, and immune from judicial review. Taken to its natural extreme, it holds that election laws set by state legislatures supersede any rights guaranteed in state constitutions or even initiatives passed by voters. It effectively concludes that there can be no possible checks and balances on state legislatures' authority when it comes to election law.


Sounds nuts, right? But four justices on the Supreme Court have already indicated some level of support for this doctrine — and the newest justice, Amy Coney Barrett, has yet to weigh in.


This emerging judicial doctrine is a serious threat to the integrity of future elections, and to democracy itself, which fundamentally relies on checks and balances between branches of our government. Make no mistake: It is part of a long-term conservative strategy to enlarge the power of state legislatures. Its rise comes at a moment of continued Republican dominance in states. Gerrymandered state legislatures nationwide are working overtime to pass ever more restrictive voting provisions and wacky proposals to reallocate electors by gerrymandered congressional district. And after Republican-controlled legislatures brutally gerrymandered state legislatures across the country in the 2011 round of redistricting, they are warming up to do it again now as the 2021 redistricting cycle gets underway. The Independent State Legislatures doctrine adds yet another arrow to the Republican anti-democracy quiver.


Republicans have engineered their way into power, and will use this doctrine to try to checkmate democracy. It's time to learn about this theory and gear up to fight back.


What is the doctrine?


Article I, Section 4 of the U.S. Constitution provides that state legislatures have the power to determine the "times, places, and manners of holding elections for Senators and Representatives." Further on, Article II, Section 1 provides that each state "shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...." As in many places, the Constitution is short here on details. (Thus the gigantic lineage of constitutional jurisprudence.) In the sections just quoted, state legislatures are meant to fill in the details.


Lawyers pursuing a conservative agenda have argued, perhaps not surprisingly, that these clauses should be read narrowly and literally. State legislatures, the argument goes, really do have the broad and exclusive authority to determine how to run elections. State legislatures receive these powers directly from the federal Constitution, wholly independently of state constitutions — therefore, state courts do not have the authority to review state election laws. Further, state legislatures can ignore state constitutional provisions that provide for broader voting rights than those