Some election and constitutional law analysts have already suggested that state legislatures may have similar power over presidential elections. The U.S. Constitution allows state legislatures to determine how a state chooses its presidential electors, arguably leaving the legislature free to choose presidential electors on their own without a popular election.
The people wielded little power in congressional elections at America’s founding.
The Constitution has always required United States representatives be chosen by the people, but who could vote was severely limited.
Before the doctrine was recognized, one congressional district in a state could have several times the population as another district in the same state. A vote in the larger district would have a fraction of the power of a vote in the smaller district.
In the wake of the one-person, one-vote doctrine, each vote carries approximately the same weight.
Providing voting power to the people makes representatives more accountable and answerable to their constituents. Adopting the independent state legislature doctrine may reverse the accountability.
That section reads: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” It gives state legislatures the primary authority to run congressional elections, subject to congressional regulation through federal law.
For example, for much of the nation’s history, states could choose U.S. representatives through districts or through an at-large system. However, federal law now requires the representatives to be chosen solely through districts.
A strong version of the doctrine might give a state legislature the power to draw congressional districts without any oversight from state courts or the governor. Given that state courts apply a state’s constitution and state statutory law, a strong independent state legislature doctrine could leave the state legislature unfettered by state law in this area.
However, in a well-functioning democracy, state constitutional and statutory law should reflect the preferences of a state’s people. The Supreme Court reminded the Arizona legislature of this point in a 2015 ruling that allowed a citizen initiative in that state to bypass the legislature in redistricting, instead requiring congressional districts to be drawn by an independent commission. If the independent state legislature doctrine were to be adopted by the current Supreme Court, that power could not be exercised by citizens.
Limited federal protection
If the court adopts the independent state legislature doctrine, legislatures would still be subject to regulation by the U.S. Constitution and by federal law, such as the Voting Rights Act.
However, the court has limited the protections embedded in the Voting Rights Act. In the 2019 ruling, Rucho v. Common Cause, the Supreme Court deemed partisan gerrymandering a political question, not subject to regulation by the Constitution. In that ruling, the court noted that state constitutional and statutory law could be used to stop partisan gerrymandering.
Three years later, the court is set to hear a case that could remove state courts from oversight of partisan gerrymandering by state legislatures. Adoption of a strong independent state legislature doctrine would leave partisan gerrymandering unregulated at both the state and federal levels.
State legislatures, unconstrained by state law, could then create aggressively gerrymandered congressional districts, possibly leading to an ever more partisan Congress with accompanying gridlock and policy failures.
Disempowering the people
When the Constitution was ratified, the state legislature was the locus of state power. That power was exercised by a few men who were not answerable to the broad populace. The state legislature was responsible for acting in the citizenry’s best interests. However, the citizenry had no effective way to force legislators to act in the people’s interests.
Over time, citizens have gained more control over state legislatures through an expanded vote and by becoming a larger part of the lawmaking apparatus of many states.
In a 21st-century democracy, the constitutional grant of regulatory authority to a state legislature regarding congressional elections might be thought to be a grant of primary authority to a state legislature – but an authority subject to a variety of other limits imposed via state constitutional law, state statutory law, the courts and the citizenry.
At America’s founding, the Constitution made the power of the people a matter of grace provided by state legislatures. As America’s democracy matured, the power of the people became a matter of right under the Constitution.
The independent state legislature doctrine threatens to make the power of the people a matter of grace again, reinstating an anachronistic vision of democracy long thought to have passed.
Henry L. Chambers Jr. is a professor of law at the University of Richmond.
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