After the unrelenting crusade by election deniers to overturn the 2020 election, which reached its low point, if not its end, with the January 6 riot, many Americans concerned about our democracy approached the 2022 midterms with trepidation. They breathed a sigh of relief as voters in key states like Pennsylvania, Michigan, and Arizona rejected prominent election deniers for statewide offices like governor or secretary of state that held authority over elections.
The 2022 election results were accepted, even by most losing candidates who had questioned the fairness of the 2020 election, yet in the end, conceded defeat in this one.
Though the worst fears for 2022 were unrealized, there remains cause for concern. Numerous officials who questioned the 2020 election results across the country were elected or reelected. A poll taken since the election found that nearly 4 in 10 voters (including 73% of Republicans) do not trust that America’s elections are “fair and accurate,” leaving open the potential for election denialism in future elections.
Against that background, a new and possibly more serious threat to our representative democracy looms, and it is being played out before the U.S. Supreme Court. In a case from North Carolina challenging that state’s congressional redistricting process, Moore v. Harper, state legislators disputing the state’s congressional map are invoking a legal theory long considered extreme: the Independent State Legislature Doctrine.
The doctrine would interpret language in the Constitution that delegates power to administer federal elections to the “Legislature” of each state. Another Constitutional provision authorizes the “Legislature” to determine how Electoral College electors are to be appointed in presidential contests. In this context, “Legislature” has long been interpreted as meaning a state’s normal lawmaking process, which includes concurrence by the governor and review by state courts.
The Independent State Legislature Doctrine flips that centuries-old interpretation on its head, giving state legislatures complete and unfettered power over elections, political maps, and even decisions over state certifications of election results for president and other federal offices. It would strip governors of their power to veto legislation relating to elections and deny state courts of the authority to determine if such laws violate their state constitutions.
Adoption of the Independent State Legislature Doctrine would ignore the sacred system of checks and balances upon which our system of government has long relied, but it also threatens another bedrock principle of our democracy: that the results of elections represent the will of the people. It could conceivably legitimize attempts by state legislatures to reject presidential electors chosen by the voters of their states and replace them with electors willing to vote for the presidential candidate the legislature chooses.
State appellate courts play an incredibly important role in interpreting election law, in providing clarity for local election officials outside the raw partisan politics of the state legislature, and in litigating critical, often time-sensitive questions about election administration. To potentially usurp this important role from seasoned jurists should make all citizens concerned about the direction our nation is heading.
The implications of the Independent State Legislature Doctrine are so profound and far-reaching that the Conference of Chief Justices, a bipartisan group representing the top state judicial officials across the country, took the unusual step of filing a brief in the Moore v. Harper case urging the Supreme Court to reject the theory as running counter to the text of the U.S. Constitution, the intentions of its Framers, and Supreme Court precedent.
For what this could mean in a state like Pennsylvania, we need look no further than further than how many state legislators reacted to the 2020 election. Even in the absence of any verifiable evidence of election fraud or irregularities, the Republican state Senate sent a letter to Congressional leaders calling on them to delay the January 6 certification of the presidential results. At least 57 Republican State House members signed a letter to Pennsylvania’s delegation urging that its members object to the Electoral College votes received from Pennsylvania. Several other key battleground states had similar experiences.
Some Republican Pennsylvania legislators have embraced the Independent State Legislature Doctrine to expand their power. They have filed a brief in Moore v. Harper, arguing that state legislatures should have exclusive and unchecked power over election matters.
If the Supreme Court values that right that allows each of us to cast a vote and the democratic republic that it protects, it must reject the Independent State Legislature Doctrine and preserve our system of checks and balances.
Madame Justice Sandra Schultz Newman
Sandra Schultz Newman was elected as a Republican and become the first female justice on the Supreme Court of the Commonwealth of Pennsylvania. She has tried or heard thousands of cases in more than 30 years in court on both sides of the bench and is certified in both basic and advanced divisions by the Harvard Law Mediation Program.
Ari Mittleman is the Executive Director of Keep Our Republic, a civic education non-profit. He is a political consultant with a focus on public relations and advocacy campaigns. He formerly served as senior staff for U.S. Senator Bob Casey of Pennsylvania and is a specialist in the Balkans region.