Four Supreme Court justices seem to think the federal constitution gives state legislatures nearly unchecked authority to set election laws
elected a new House of Representatives in November, around 90% of the 435 races were foregone conclusions. Owing in large part to aggressive gerrymandering by state legislatures—a process by which politiciansto favour their own party—less than 40 districts saw competitive races. This supercharged gerrymandering came under review by the Supreme Court in 2019, but a 5-4 majority decided that policing electoral maps was not the job of federal courts.
When on March 7th the Supreme Court declined to reinstate the Republican-drawn map in North Carolina , Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissented, throwing their support behind the independent-state-legislature theory. The dissenters claimed that the constitution “specifies a particular organ of a state government”, the legislature, to determine the contours of elections, “and we must take that language seriously”.
Article I of America’s constitution provides that the “times, places and manner of holding elections” for Congress “shall be prescribed in each state by the legislature thereof”. Advocates of the independent-state-legislature theory say this clause assigns sole responsibility for redistricting to the state legislature; other branches of the state government, including the courts, must watch from the sidelines.
With four apparent supporters on the Supreme Court, the independent-state-legislature theory may be one vote away from upending more than 200 years of election law in America. Chief Justice John Roberts is unlikely to supply a fifth vote: he wrote the opinion ininviting state courts to do what the doctrine insists they cannot. But Justice Amy Coney Barrett has remained mum on the question. If she were to join her four colleagues, the implications could be momentous.
Even presidential elections could ultimately be affected. Although all states currently allocate their electoral votes by consulting their state’s popular vote, nothing in the constitution explicitly requires this. Were legislatures to become supreme and unfettered, they could thwart electoral democracy by choosing slates of electors themselves without oversight from governors or state courts. Such a disenfranchisement of voters may seem like a remote possibility.
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