Congress should nip the independent state legislature theory in the bud

The U.S. Supreme Court will hear a case with dangerous implications for American democracy on Dec. 7, the anniversary of a previous day of infamy. The case, Moore v. Harper, will give the GOP-appointed majority the opportunity to grant state legislatures the sole state authority to set rules for federal elections. In states where legislatures are controlled by one party, that party could gerrymander to its heart’s content without approval by the governor or oversight by the courts. The decision could also set the stage for a repeat of the scheme pursued by election deniers to snatch the presidency in 2020 with alternate or “fake” elector slates.

The case tees up the preposterous theory that the framers of the U.S. Constitution intended to allow state legislatures, acting alone and without court review, to adopt congressional redistricting plans as well as oppressive election rules. Article I, section 4 of the Constitution says that the “times, places and manner of holding elections … shall be prescribed in each state by the legislature thereof.”

Ever since the ink began drying on that revered document in 1787, everyone assumed that state high courts had the authority to consider and rule upon legal challenges to voting rules and redistricting plans. Court review was an essential part of the checks and balances that drove the constitutional plan, but several members of the Court’s majority now seem to think that everyone was wrong in reading this language during the last 235 years.

A simple-minded idea, known as the “independent state legislature” theory (ISL), has surfaced among some Republicans who now contend that state legislatures, acting alone, have supreme state authority to set voting rules and redistricting plans for congressional elections in their states. The theory has been thoroughly discredited by serious constitutional scholars, but that has not discouraged the extremists who see it as a strategy for perpetuating their foothold in Congress and, perhaps, enhancing their presidential prospects. Their contention is based on the fact that there is no language in Article I, section 4, specifying that legislative actions are subject to court review.

It would be prudent for the GOP majority to consider that there is no language in the U.S. Constitution specifying that the Supreme Court has authority to rule upon the constitutionality of congressional acts. The Supreme Court simply assumed that authority in the early case of Marbury v. Madison. If today’s Court embraces the ISL theory, some future Democratic Congress could use its legislative power under Article III, section 2 to justify a severe restriction of the Supreme Court's jurisdiction in the voting arena and perhaps other hot-button areas. How else to rein in a rogue Court?

Having no viable legal grounds to entertain the ISL theory, it is virtually certain that the Court’s conservative majority decided to hear Moore v. Harper solely for political purposes. Before adopting ISL, they should consider what just happened in New York.

In an odd twist of fate, the GOP was able to take control of the U.S. House due in large part to a state court decision striking down a heavily gerrymandered New York redistricting plan. Had New York courts been precluded from reviewing and killing the plan, the Democrats may have picked up four additional House seats. The ISL idea is a two-edged sword that could come back to smite the GOP, while further poisoning politics in America.

Congress has the authority to fix the problem and should make it a priority in the lame duck session, before a new GOP House majority can prevent this essential remedial work. Article I, section 4 says that “Congress may at any time by law make or alter” the election rules adopted by a state legislature.

Congress could and should nip the ISL theory in the bud by making it clear that any rules or plans adopted by state legislatures are subject to regular state procedures for legislative enactments — executive approval and court review. This comports with the governmental system adopted by the drafters of the Constitution and has been the accepted practice throughout U.S. history.

There is urgency to act because it is likely that the GOP plan has a more devious second stage. That is, after obtaining a decision adopting the ISL theory in Moore v. Harper, some Republicans may try to use it as a means of snatching the presidency in 2024 if the Republican nominee does not win a majority of presidential electors.

Article II, section 1 of the Constitution provides that each state is to appoint presidential electors “in such manner as the legislature thereof may direct.” It has been the accepted practice that electors are chosen on Election Day, based upon the popular vote.

But the country witnessed an attempted departure from that practice by former President Trump and his servile followers, who sought to use alternate or “fake” slates of electors chosen by one-party legislatures in several purple states to overturn the election results.

Trump’s plot to steal the 2020 election with alternate electors could be replayed in favor of the GOP presidential nominee in 2024 in the event of a close election in a few purple states. The people who tried to overturn the 2020 election, including Ginni Thomas, wife of Justice Clarence Thomas, promoted this strategy in 2020, and it is highly plausible that they are working to perfect it for 2024. The Supreme Court’s adoption of the ISL theory would add some legitimacy to that effort. For the sake of American democracy, Congress must nip this corrupt scheme in the bud.

Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.