A constitutional doctrine resuscitated during legal challenges before the U.S. Supreme Court in the wake of Florida’s disputed 2000 election is finding traction in post-2020 election integrity lawsuits.
Proponents are espousing “Independent State Legislatures Doctrine” in legal arguments seeking to cuff state courts from “acting like ‘super legislators’” and assert state legislatures’ right as “necessary parties” in election-related lawsuits.
“It comes back to a very basic textural reading of the Constitution that vests the ability to regulate elections to state legislatures,” said Jason Snead, executive director of Honest Elections Project (HEP), created in February 2020 by the Federalist Society to spearhead election integrity initiatives. “This is a live issue—a theory we endorse.”
The doctrine is rooted in parts of two articles of the U.S. Constitution.
Article I declares state legislatures have authority to determine “times, places and manners of holding elections for Senators and Representatives.” Article II states “each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” in presidential and vice presidential elections.
The doctrine has created a buzz among conservatives since the U.S. Supreme Court overturned a Florida Supreme Court ruling that cited “suffrage principles” in the state’s Constitution to allow manual recounts in the disputed 2000 election.
In throwing out the ruling, the U.S. Supreme Court determined that when the state Legislature enacted the law governing presidential electors, it was “not acting solely under the authority given it by the people of the state, but by virtue of a direct grant of authority made under Article II of the United States Constitution.”
Most legal scholars argue that 130 years of court rulings have made application of that doctrine using an originalist interpretation of the Constitution moot.
“The founding generation’s original understanding of Article II did not include special solicitude toward state legislatures. Moreover, the doctrine’s actual origins in the Civil War Era and its subsequent history reveal it has never been anything but a trifle which politicians and courts call upon to lend legal weight to sentiments otherwise unrecognized by law,” wrote attorney Hayward Smith, in an article to be published in legal journals in May.
Opponents say the 14th Amendment states each citizen’s vote must be counted and cite safeguards in the Constitution and in federal law, such as the Electoral Count Act’s “safe harbor” provision, that ensure that the popular vote determines Electoral College electors.
Critics say the doctrine gives “intellectual cover” to a gambit by Republicans to grant state legislatures power to override popular votes.
“The benefit of technical arguments under the independent state legislature doctrine to subvert election results is that they have an aura of respectability and expertise,” University of California–Irvine School of Law legal scholar Richard Hasen wrote in an October Harvard Law Review Forum article, calling the doctrine “a strong vehicle for a bloodless coup.”
But HEP’s Snead and Hans von Spakovsky, Heritage Foundation senior legal fellow and election law reform initiative manager, say much of the criticism is politically motivated hyperventilation over arguments they’re not making.
Von Spakovsky said state legislatures are restricted from participating in lawsuits lodged against the state “unless a law passed by legislature violates the state Constitution.”
“State election laws are in place because state legislators put them in place, but they cannot defend those laws in court. State legislatures should be a necessary party in any lawsuit filed against one of its election laws,” he said. “The ability of state courts—courts in general—to intervene in lawsuits over legislation that govern elections, I think, is much more limited than what the courts think.”
In October 2020, amicus briefs espousing the doctrine were filed before the U.S. Supreme Court in an unsuccessful challenge of the Pennsylvania Supreme Court’s ruling upholding an extension of the state’s absentee ballot deadline, and before the U.S. 8th Circuit in overturning Minnesota Secretary of State Steve Simon’s decree allowing absentee mail-in ballots to be counted after the deadline.
In that 8th Circuit ruling, justices affirmed that “there is no pandemic exception to the Constitution” and changes to election laws not approved by state lawmakers are “unlawful and unconstitutional.”
The doctrine will be presented when the U.S. Supreme Court hears Berger v. North Carolina State Conference of the NAACP on March 21. The Republican-led Legislature is challenging the 4th U.S. Circuit’s rejection of its petition to intervene, ruling the state’s attorney general is adequate representation in defending the state’s voter ID law.
“An attorney general should not be able to enter into a settlement without the state legislature agreeing,” von Spakovsky said. “It’s no different than in an auto accident. My lawyer cannot enter into a settlement without me agreeing to it.”
The outcome “should conform to the independent state legislature doctrine,” Snead said. “We’ve fought to get it all the way to the Supreme Court.”