(CNN) — The Supreme Court is on a streak of transforming the lives of Americans.
It curtailed the ability of states to regulate the carrying of weapons.
It gave states the power to ban abortion.
It undermined the power of the Environmental Protection Agency and other government agencies to regulate polluters.
What follows could be a complete reimagining of American democracy, in which, if the Supreme Court adopts a legal theory based on the word “legislature,” state legislators could, in theory, have a new power to ignore the voters and elect presidents.
The conservative-majority court has agreed to hear a North Carolina case pitting the GOP-controlled state legislature against state courts that struck down congressional maps they say were rigged.
This is what you need to know:
What is the independent state legislature theory?
The Constitution specifically refers to the “legislature” of each state that determines the time and manner of federal elections.
Supporters of the “independent state legislature claim” argue that since the Constitution does not name other parts of state government, including the courts, they should have no power to control the legislature on the issue of federal elections. Even if a state’s constitution or laws give power to the courts or a governor, the theory argues that legislatures should be able to override them.
The root of this idea, according to the liberal-leaning Brennan Center for Justice, stems from a concurring opinion by then Chief Justice William Rehnquist in the Bush v. Gore decision, which settled the 2000 presidential election. .
Why is this coming up now?
The map of Congress drawn up by the GOP-controlled North Carolina legislature to benefit Republicans was rejected by the state Supreme Court earlier this year. Although the state is divided politically, the map of the legislature would have resulted in Republicans winning two seats in Congress. L
State courts finally adopted a more expertly balanced map that could see Democrats win a seat in North Carolina. Republican state lawmakers want the US Supreme Court to allow them to bypass the state court and use the Republican-favoring map for future elections after this year’s midterms.
What is the most extreme scenario?
Here’s what Vogue’s Ariane and CNN’s Gregory Krieg wrote: “If the theory is accepted by the Supreme Court’s conservative supermajority, critics say, rogue lawmakers would be free to act without restraint from their home courts.” state”.
The editorial board of The Washington Post said Tuesday that the Supreme Court, which has already said it lacks the authority to address gerrymandering, could now take that power away from state courts as well.
The bottom line, according to the paper: “…state legislatures, their very composition the result of strong gerrymandering, could contort congressional districts to their will to ensure one party has the upper hand, playing with how much really worth the vote of each individual”.
What is the argument for?
The text of the Constitution matters, even if this new interpretation destabilizes American democracy.
“The Election Clause does not give state courts, or any other body of state government, the power to challenge the determinations of the legislature,” the Republican lawmakers argue in the case.
Here is a very detailed academic article favorable to the idea of independent state legislatures, written by Florida State Law Professor Michael Morley.
Why is this theory gaining ground?
Evan Bernick, a law professor at Northern Illinois University School of Law, has written a new book focused on the 14th Amendment. He told me in an email that this theory “taps into a tradition that is (sadly) as old as the Founders, but has taken on new life in recent years.
This is a tradition where only a subset of the people are allowed to rule and the rest are looked down upon as less than the true ‘people’.”
Who would benefit if the Supreme Court adopts this doctrine?
The Republicans. While Democrats currently hold a slim majority in the federal legislature, Republicans have a clear advantage at the state level, where they control more than 60% of state legislatures.
What does the Constitution mean by “legislature”?
I spoke with Vikram Amar, dean of the University of Illinois College of Law. He recently published an article with his brother, Akhil Amar, of Yale Law School, in which he dissected and dismissed as “garbage” the notion of independent state legislatures.
Amar argued that conservative judges who consider themselves to be originalist interpreters of the text of the Constitution cannot legitimately impose this new doctrine, which he refers to as “ISL” for short, on the country.
Also, the people who wrote the Constitution had a broader view of the term “legislature” that is consistent with allowing the courts to protect the rights of voters in their states.
“It is inconsistent with the practices of state legislatures and state constitutions in 1787, and it is disregarding 100 years of clear precedent from 1916 to 2019,” Amar said of the ISL.
Legislatures that ignore the courts. Why does this sound familiar to us?
Supporters of former President Donald Trump built on the doctrine by proposing that GOP-controlled legislatures in key states ignore the results of the 2020 presidential election and simply appoint their own slate of voters to avoid the election he lost and keep Trump in the White House. Amar referred to this plan as “ISL on steroids.”
But that could become a reality if the Supreme Court fully embraces the notion of an independent state legislature. Amar floated a hypothesis in which a legislature would simply decide before an election that it would not be voter-bound and then present its own list of electors.
“If the ISL proceeds, they can do it,” Amar said. “If it doesn’t proceed, they probably can’t do it because in most states, the state constitution will say that electors are selected by the people.”
Are voters often at odds with their legislatures?
One could argue that since legislatures are elected by voters, they should not be hampered by state courts in the presidential selection process. Courts, after all, are less accountable to voters than legislators.
Moreover, voters have routinely voted for a president other than the party that controls their legislature. President Joe Biden won the White House because several states with GOP-controlled legislatures in 2020, including Georgia, Arizona, Pennsylvania, Michigan and Wisconsin, chose him over Trump.
What is the role of constituency rigging in all of this?
Amar argued that state legislatures are heavily rigged, often giving one party more control over a state that is not matched by the support it has among citizens.
“You can have the hearts and minds of 40% of the state, but if you currently control the legislature, you can distribute that 40% of support that you have in a way that reliably wins 60% of the districts,” he said.
Is this the new form of democracy?
A complete reinterpretation of the Constitution to give legislatures superpower over elections would be extreme. But there is increasingly outspoken opposition to the idea that the voters rule the roost. Politicians seem to have no problem favoring the idea that only voters they agree with should rule and voters they disagree with should be blocked.
In a somewhat related vein, Senate Minority Leader Mitch McConnell, who effectively created the Supreme Court’s conservative majority, has essentially promised that a Republican-controlled Senate would not confirm a Supreme Court nominee from a Democratic president elected by voters.
What will the court do with the independent state legislature theory?
CNN’s De Vogue noted in March that four Supreme Court justices, Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, “expressed some sympathy in three separate disputes with the notion that state courts had overstepped their bounds by resolve demands on electoral norms”.
Amar told me that Kavanaugh has been remarkably quiet more recently.
Also, there is some question about the views of the new conservative judge, Amy Coney Barrett.
What is certain is that the high court will directly consider this theory in its next term.