Have you heard of the “independent state legislature” theory? This radical theory poses a potentially catastrophic danger to our form of government, if the U.S. Supreme Court allows it. It would obliterate checks and balances when it comes to federal elections
I had not heard of this idea even though for the last 16 years I have led the effort to end gerrymandering in Florida. Gerrymandering is the undemocratic practice where legislators rig district maps to favor their party.
When Florida lawmakers gerrymander, they essentially pick their voters, diminishing our ability to choose who represents us in Tallahassee and Washington. Legislators decide election outcomes when they draw the district lines — long before the first vote is cast.
I always thought that in a democracy, citizens should control election outcomes by voting and each vote should matter. So our effort, Fair Districts Florida, successfully amended the state constitution to prevent partisan and racial gerrymandering by the Florida Legislature.
Those Tallahassee politicians did not like our amendment. In 2012, they hatched a scheme to get around it. The state courts disapproved and ordered maps that complied with the new rules. (As a result, during the 2022 redistricting process, legislators showed much more respect for the rules that 63% of Floridians had voted for and our state courts had enforced.)
Florida legislators are not alone in their distaste for anti-gerrymandering laws. This year, the North Carolina legislature’s congressional map unfairly favored Republican lawmakers. Citizens challenged that map and the state’s supreme court held it violated the state constitution.
The court ordered a fairly drawn map for this year. Unhappy with that result, the North Carolina legislature sought a hearing before the U.S. Supreme Court. The case will be heard during the court’s next term.
North Carolina's “independent state legislature” theory asserts that state courts have no role in ensuring that redistricting maps comply with their state constitutions. They argue that state legislatures are not subject to state court review when it comes to federal elections.
They consider themselves above the law with unchecked authority in elections for president, senator and representative. Aren’t our three branches of government meant to provide checks and balances, with courts intended to be a check on legislative overreach?
Well, the Supreme Court of the United States might have other ideas. The Supreme Court’s willingness to consider the North Carolina redistricting case, Moore v. Harper, is greatly concerning. The theory has never been accepted by any court. For centuries citizens have relied on state courts to review legislative acts to ensure that state laws are followed in federal elections.
This fringe theory, if accepted, would eliminate checks and balances in federal election cases. It would close state courthouse doors to citizens who might want to challenge unconstitutional redistricting maps or other election matters.
But redistricting is not the only legislative function in jeopardy. Adoption of the “independent state legislature theory” in elections for president could mean that if a legislature does not agree with the majority vote in a presidential election, it might disregard the actual vote total, ignore existing state procedures for selecting electors and appoint alternate electors who would cast electoral votes for the legislature’s preferred candidate.
Shocking, right? Well, it might happen. In fact, it almost did happen in the 2020 election. But for the fact that state courts were still able to assert checks and balances on legislative power, democracy as we thought we knew it might not have survived.
Here is the nightmare scenario: Voters would no longer matter and partisan lawmakers would have unchecked power to decide outcomes of federal elections. That’s not democracy. It is legalized theft of an election.
As J. Michael Luttig, a conservative former federal appellate judge, warns, if the theory is adopted, it would permit “open defiance of the popular vote and thus the will of the American people.”
The only way for us to maintain democracy is to demand that our public officials are committed to democratic principles and committed to appointing judges who will uphold those principles. Voting and carefully choosing those we vote for this November is a good way to start.
Miami lawyer Ellen Freidin led FairDistrictsFlorida.org and its successful 2010 citizens’ initiative to outlaw gerrymandering. She is CEO and general counsel for Fair Districts Now.
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This article originally appeared on Palm Beach Post: Ellen Freidin: Supreme Court weighing theory that could doom elections