The one good thing about the independent state legislature theory | Bruce Ledewitz

The doctrine, for all its faults, would protect the public from judicial partisanship

December 16, 2022 6:30 am

A view of the front portico of the United States Supreme Court building in Washington, DC.

On Dec. 7, the U.S. Supreme Court heard oral argument in Moore v. Harper, the North Carolina congressional redistricting case that is giving the Court the opportunity to adopt the Independent State Legislature Doctrine.

That doctrine holds that when the U.S. Constitution granted authority to the “legislature” of a state to craft the election rules for voting in congressional and Presidential elections, that excluded any other state actors, such as state courts, from reviewing anything the legislature does.

Critics warned darkly that adoption of the doctrine would mean the end of democracy, as state legislatures would not only be emboldened in partisan gerrymandering of congressional districts but would create all sorts of other restrictions on voting, to the detriment of vulnerable groups.

Thankfully, and a little surprisingly, several Justices, and Justice Any Coney Barrett in particular, expressed skepticism about the doctrine during oral argument and the court seems less likely now to adopt it, at least in its fullest import.

That is a good thing, because the doctrine lacks coherence and historical justification and would undoubtedly unleash the worst partisan instincts of state legislatures.

However, opponents of the doctrine generally fail to acknowledge the one good thing that adoption would accomplish: it would serve as a check on partisan state Supreme Courts.

Pa. takes a back seat as U.S. Supreme Court takes on the independent state legislature doctrine

People forget that state courts are not angels either. The first important expression of the Independent State Legislature Doctrine was written by Chief Justice William Rehnquist expressly to check one such partisan overreach.

In 2000, the presidential election hung in the balance as Republican candidate George W. Bush narrowly won the state of Florida and its electoral votes. However, voting machines in the state had rejected an unusually high number of votes because of a ballot that required voters to push through holes to record their choices. These problematic votes represented the famous “hanging chads.”

Recounts were held under Florida law but did not change the outcome. Then, the Florida Supreme Court ordered manual recounts of the so-called undervotes to determine whether a voter whose vote had been rejected had actually intended to cast a vote. This process was not provided for in state election law.

To Republicans, the Florida Supreme Court was in effect asking county election officials to “find” enough votes for Gore to win Florida, just as President Donald Trump would later ask the Georgia Secretary of State in 2020. 

The United States Supreme Court stayed the action of the Florida Supreme Court.

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It was in this context that Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, argued that the intervention of the state Supreme Court violated what would come to be known as the Independent State Legislature Doctrine by substituting its own election procedures for those the Florida legislature had instituted for Presidential elections.

Pennsylvania has seen its share of perceived partisan decisions by its state Supreme Court. In 2018, the court found that Pennsylvania’s highly gerrymandered congressional map violated the state Constitution—the same underlying issue that is pending in Moore. 

That finding was not controversial. Not only did the five Democratic Justices on the court agree, but then-Chief Justice Thomas Saylor, joined by fellow Republican Justice Sallie Updyke Mundy, indicated that he was also be tempted to hold the Pennsylvania map unconstitutional.

The reason Saylor dissented was that a bare majority of the court had not only given the General Assembly and the Governor just three weeks—from Jan. 22 to Feb. 15, 2018—to come up with a new map, the majority Justices announced that if the parties did not do so, they would draw their own map, in time for the 2018 congressional primaries and election.

Even worse, the majority did not even issue a written opinion explaining what the Constitution required until Feb. 7 and even then, the litigation was so rushed that the majority was unable definitively to define the legal requirements of an adequate map.

In other words, it appeared the majority justices were determined to draw their own map.

That expedited timetable and truncated process were too much not just for Saylor and Mundy but for the late Democratic Justice Max Baer, who filed a partial dissent.

Then, in September, 2020, a different four justice, Democratic majority extended the time that mail-in ballots could be received from 8 p.m. on election night, the time and day specified by the General Assembly, to the following Friday. This time Democratic Justice Christine Donohue, joined again by Saylor and Mundy, dissented.

Finally, in 2022, this time on a straight party-line vote of 5-2, a Democratic majority upheld mail-in voting against a claim that Act 77 violated the Pennsylvania Constitution.

The point is not that each of these decisions was wrong. Rather, the point is that Democratic justices on the Pennsylvania Supreme Court consistently come down on the side of the Democratic Party in politically fraught cases. And, in the case of partisan gerrymandering, some Justices had even run for election to the court on a platform of ending the practice.

All this may be why Justice Samuel Alito hinted during oral argument in Moore at his distrust of state Supreme Courts: “Do you think,” he asked, “that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting?”     

The Independent State Legislature Doctrine, for all its faults, would protect the public from judicial partisanship. 

The oral argument in Moore touched on alternatives to the doctrine that would allow the Supreme Court some oversight concerning state court decisions that impact federal elections. 

Generally speaking, the Supreme Court can always reverse arbitrary state court decisions that impinge on federal interests.  

Whenever a state court changes state election law, there is the potential for violating the federal interest in leaving election law to state legislatures.

A good faith application of state constitutional provisions by a state court should be permitted, but announcing new practices under previously unenforced state constitutional provisions to achieve a state court’s view of better policy, or worse, a partisan result, should not be permitted.

The standard could be that in order for a state court to disallow or otherwise change state election law in a federal election, the state court must demonstrate that its decision arises from established state constitutional sources and precedent. 

Under that standard, which would presumably have led the U.S. Supreme Court to reverse the expedited timetable in 2018 and the three-day extension in 2020, we would avoid the worst of the Independent State Legislature Doctrine, while retaining its one good thing of controlling runaway state courts.

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Bruce Ledewitz
Bruce Ledewitz

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne Kline Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. He hosts the “Bends Toward Justice” podcast. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Kline Duquesne Law School.