Former DHS official tears apart a crackpot legal theory that could 'have catastrophic effects for democracy'

21 November 2022

In the case Moore v. Harper, the U.S. Supreme Court will not only examine congressional redistricting in North Carolina — it will also be examining a far-right legal idea known as the independent state legislature doctrine. In its most severe form, the ISL (or ISLT) argues that only state legislatures should govern elections at the state level; a state’s executive branch (the governor’s office) and its judicial branch (judges, state supreme courts), according to that line of thinking, should have no say in the matter.

The ISL has become increasingly popular on the MAGA far right. But the ISL is by no means embraced by all conservatives, and former Department of Homeland Security (DHS) official Paul Rosenzweig makes a conservative argument against the ISL in an article published by The Bulwark on November 21.

Attorney Rosenzweig describes the ISL as an “attempt to create new rules about elections in the middle of the game” that could “have catastrophic effects” if the U.S. Supreme Court agrees with it in Moore v. Harper.

“The ISLT finds its alleged origin in the text of the Constitution,” Rosenzweig explains. “The Elections Clause (Article I, Section 4) says: ‘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’…. In its strongest form, ISLT proponents say that this text means that state legislatures have plenary and exclusive power over the conduct of federal redistricting for Congress — the principal question at issue in Moore — the conduct of presidential elections, and the selection of presidential electors.”

Rosenzweig continues, “The key to this argument is the alleged ‘exclusivity’ of the legislature’s authority. Under a strong form of the ISLT, neither state election officials, acting pursuant to state law, nor even a state supreme court — interpreting state law and, if applicable, the state constitution — can supplant that legislative authority.”

The former DHS official slams the ISL as a “two-fold threat to democracy.”

“First, it means that state courts cannot ‘change” what the legislature has enacted, and it is the legislature that can decide whether or not the courts are making a ‘change,’” Rosenzweig notes. “In Moore, the question is whether the North Carolina Supreme Court allegedly improperly supplanted the gerrymandered districts drawn by the state legislature. This part of the theory upends traditional conservative notions of judicial review, where the legislature sets the rules, but the courts serve as the ultimate arbiters of statutory and constitutional interpretation…. Second, and even more ambitiously, the ISLT opens up the possibility that a state legislature can overturn the decision of duly empowered state elections officials in deciding whom to seat as presidential electors.”

Rosenzweig adds, “If, again hypothetically, a secretary of state certified a particular result, the state legislature would have the authority to independently determine that ‘fraud’ had occurred and disregard the results determined by the state election authorities. And because the state courts could not intervene, it is likely that the legislature’s actions would prevail even if they were arbitrary, motivated by partisanship, and without any real evidence…. Say what you will about the ISLT as a political device for the accumulation of power, but there is absolutely nothing about the theory that ought to appeal to conservative lawyers. The hallmarks of conservative legal thought are textualism, originalism, historicity, and judicial modesty; the ISLT comports with none of these.”

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