Gaby Goldstein

This Republican 'weird trick' could be fatal to democracy

Last Friday, we finally learned that the draft report of the crassly partisan Maricopa County election "fraudit" commissioned by Arizona's state Senate Republicans failed to find voter fraud and indeed, yet again, found that Trump lost. But brazen Republican state legislatures won't stop there. These days it feels like a never-ending challenge to stay one step ahead of voter suppression and democracy dismantling efforts in Republican-controlled state legislatures.

A decade ago, Republicans gerrymandered themselves into unrepresentative majorities in state legislatures nationwide. Since then, they've been determined to keep that undue power, no matter how many constitutional guardrails they must smash along the way. Their latest scheme might be the most wild-eyed and dangerous yet.

Republicans have hit upon a legal theory that could allow them to negate state constitutions and citizen ballot initiatives that protect voters and provide them with a crucial voice. The end game? Securing a world in which only state legislatures can decide election law and declare victors. They're looking for an assist from the federal courts. And they just might get it.

This once-obscure theory — known as the Independent State Legislatures doctrine — had been a stealth effort in right-wing legal circles. But recent election-related litigation in state supreme courts and the federal courts, much of it related to the "Big Lie," has accelerated its prominence and highlighted its dangers.

Here's what the Independent State Legislature doctrine argues: The U.S. Constitution gives state legislatures the sole authority to set all election rules — including the assigning of Electoral College votes — independently, and immune from judicial review. Taken to its natural extreme, it holds that election laws set by state legislatures supersede any rights guaranteed in state constitutions or even initiatives passed by voters. It effectively concludes that there can be no possible checks and balances on state legislatures' authority when it comes to election law.

Sounds nuts, right? But four justices on the Supreme Court have already indicated some level of support for this doctrine — and the newest justice, Amy Coney Barrett, has yet to weigh in.

This emerging judicial doctrine is a serious threat to the integrity of future elections, and to democracy itself, which fundamentally relies on checks and balances between branches of our government. Make no mistake: It is part of a long-term conservative strategy to enlarge the power of state legislatures. Its rise comes at a moment of continued Republican dominance in states. Gerrymandered state legislatures nationwide are working overtime to pass ever more restrictive voting provisions and wacky proposals to reallocate electors by gerrymandered congressional district. And after Republican-controlled legislatures brutally gerrymandered state legislatures across the country in the 2011 round of redistricting, they are warming up to do it again now as the 2021 redistricting cycle gets underway. The Independent State Legislatures doctrine adds yet another arrow to the Republican anti-democracy quiver.

Republicans have engineered their way into power, and will use this doctrine to try to checkmate democracy. It's time to learn about this theory and gear up to fight back.

What is the doctrine?

Article I, Section 4 of the U.S. Constitution provides that state legislatures have the power to determine the "times, places, and manners of holding elections for Senators and Representatives." Further on, Article II, Section 1 provides that each state "shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...." As in many places, the Constitution is short here on details. (Thus the gigantic lineage of constitutional jurisprudence.) In the sections just quoted, state legislatures are meant to fill in the details.

Lawyers pursuing a conservative agenda have argued, perhaps not surprisingly, that these clauses should be read narrowly and literally. State legislatures, the argument goes, really do have the broad and exclusive authority to determine how to run elections. State legislatures receive these powers directly from the federal Constitution, wholly independently of state constitutions — therefore, state courts do not have the authority to review state election laws. Further, state legislatures can ignore state constitutional provisions that provide for broader voting rights than those guaranteed by the federal Constitution or federal law.

Again, it sounds nutty, right? But in the 2000 Supreme Court case that decided the presidential election, Bush v. Gore, then-Chief Justice William Rehnquist, along with Justices Antonin Scalia and Clarence Thomas, made this exact case: State legislatures have the sole power to run elections, including picking electors — and this cannot be altered by state courts.

In the intervening years, conservative lawyers have continued to build the case for this doctrine. And in February of this year, when the Supreme Court dismissed as moot the Pennsylvania case regarding 2020's absentee ballot extension, Justices Samuel Alito, Neil Gorsuch and Thomas dissented, citing the Independent State Legislatures theory and arguing that it should be settled before the next election. Further, last October, when the Court declined to disturb a separate ballot-deadline in Wisconsin, Justice Brett Kavanaugh dissented and, in a footnote citing Bush v. Gore, stated that "the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws." His words make clear his strong support for this doctrine.

The doctrine could also have devastating consequences for fair maps. Redistricting reformers have eyed state supreme courts as one road to fair maps, free from partisan gerrymandering, now that the federal courts have been shuttered. That path could quickly be blocked under this doctrine. It's even possible that this doctrine could be used to challenge nonpartisan redistricting reform established by citizen ballot initiative, or any redistricting process other than one approved by a state legislature. The theory was rejected by the court's majority when invoked to challenge the Arizona independent commission in 2015, but two of the votes from that majority, Justices Anthony Kennedy and Ruth Bader Ginsberg, are no longer on the court. Chief Justice John Roberts was the lead — and angry — dissenter in that case -- indicating his likely support for a strong Independent State Legislature doctrine.

What's the big deal?

The Independent State Legislatures doctrine used to be a fringe theory, but not anymore. Multiple Supreme Court justices are on the record in support of it. Right-wing legal activists from the Federalist Society and its "Honest Elections Project" are pushing for it in legal briefs authored by white-shoe law firms (BakerHostetler, counsel for the Honest Elections Project, has defended Republican gerrymandering in Pennsylvania and North Carolina.) And some GOP-controlled state legislatures, including Arizona, are considering bills that would allow them to intervene in presidential elections to choose electors themselves if election results are "unclear." If a state were to pass this type of law, it would set the stage for a court to agree that the Independent State Legislature doctrine requires that in some circumstances, state legislatures rather than voters should determine election outcomes.

As Jane Mayer reported recently, right-wing funders like the Bradley Foundation and the American Legislative Exchange Council (ALEC) have been working with Republican state legislators to advance ways to re-engineer how states allocate Electoral College votes. Last year, a GOP state representative from Arizona, Shawna Bulick, sat on an ALEC-convened working group that discussed the Electoral College, and this year, she introduced a bill that would have given the state legislature power to undo the certification of presidential electors by a simple majority vote up until the inauguration.

It died in committee — this time. But next time? Introducing legislation that fails serves to normalize it and is often part of a longer-term strategy to build support over time.

This is all part of a coordinated and well-funded strategy to enlarge the power of state legislatures. Conservatives, of course, have already established a commanding advantage in state legislatures through gerrymandering and long-term investment in down-ballot races. Now these bodies are taking advantage of any audacious power play they can imagine — or any wild-eyed reading of the U.S. Constitution — that might keep themselves entrenched in office, no matter how outrageous the scheme or how antithetical it may be to the founding ideals they claim to venerate.

How we fight back: Building progressive power in state legislatures

Our state legislatures have become wildly imbalanced. Republicans already enjoy structural advantages in the U.S. Senate and the Electoral College. And many state and federal courts have been captured by conservative ideology.

We cannot allow the courts to imbue unrepresentative state legislatures with the ultimate power to award electors, regardless of the popular vote. We cannot allow state constitutions to be neutered of their power to check the most egregious gerrymanders and we cannot allow ballot initiatives that provide for citizen mapmaking commissions to be prohibited. The Independent State Legislatures doctrine threatens to do all three.

Good news: We can fight back. Redistricting is underway across the country, and we can fight for fair maps to keep Republican legislatures from gerrymandering their way into enduring majorities. Attend legislative hearings (many have a remote option) and submit testimony — public accountability and pressure works. Support state-based organizations on the ground fighting for fair maps. And invest some time and resources into progressive state legislators and candidates. Fighting gerrymandering and building back the progressive state bench will take time, money and long-term commitment. But to ensure that representative democracy is not smothered and swallowed whole, there is no alternative.

The Roberts Court is destroying voting rights — winning back state legislatures is the only remedy

This week, a conservative majority on the U.S. Supreme Court that has dedicated itself to making it more difficult for Americans to vote struck again and drove a nail further into the heart of the already-gutted Voting Rights Act. As Republican state legislatures nationwide continue to pass restrictive laws that place additional burdens especially on voters of color, this Court, over a decade of shameful, pinched jurisprudence, has slowly eviscerated the crucial tools enacted to curb the worst instincts of lawmakers.

In a 6-3 decision that broke along sadly predictable partisan lines, the Court upheld on Thursday a pair of voter suppression laws from Arizona that banned ballot collection and severely regulated out-of-precinct voting, despite clear evidence that these laws disproportionately burdened minority voters.

The burdens and racial intent in these cases were clear to lower courts and less determined partisan judges. Arizona officials relocate the voting precincts of Black and Latino residents at a wildly higher rate than white precincts, resulting in considerable and predictable confusion. And Native American and rural Arizonans — where household mail service is rare and often unreliable — rely on volunteers and community members to return their ballots. There has been no — zero — proof of fraud in this important service.

None of that mattered to this Court, and indeed, the decision is not surprising to those following the Roberts Court's steady trajectory rightward in voting cases and other civil rights.

What this decision reinforces, however, is that Section 2 of the Voting Rights Act will no longer serve as a necessary protection against legislation designed to suppress the vote of racial minorities. Even when the facts are as clear as they are here. And even in states like Arizona, where lawmakers have a century of experience in designing voting restrictions carefully crafted to preserve white political power.

That means this decision must serve as a last chance, five-fire alarm bell to progressives — indeed, all Americans who care about protecting the foundational right to vote and perhaps the most valuable piece of civil rights legislation in our history—about the urgent need to invest in state legislatures, which are ever increasing in power. State legislatures are the final boss in the Republican quest to vanquish democracy. We cannot cede this fight to them.

Brnovich: The case and decision

The path to Brnovich began in 2013, when the Supreme Court struck down the "pre-clearance" requirement under Section 5 of the Voting Rights Act in Shelby County v. Holder. Suddenly, states with a history of suppressing minority voters — including Arizona — were free to change voting rules without obtaining DOJ's prior approval. They moved fast and took full advantage. Arizona quickly passed the laws at issue: first, making it a felony to return someone else's signed ballot (known as ballot collection), and second, disenfranchising people who accidentally cast a ballot in the wrong precinct.

Importantly, the plaintiffs in the case presented clear and extensive evidence demonstrating that Latino and Native American voters are disproportionately burdened by the elimination of ballot collection, and that minority voters are twice as likely to vote in the wrong precinct as white Arizonans. These restrictions, the plaintiffs argued, violated Section 2 of the Voting Rights Act, which protects minority groups from voting laws and practices that are discriminatory.

Nonetheless, Justice Samuel Alito stated for the majority that "Arizona's out-of-precinct policy and HB 2023 do not violate §2 of the VRA, and HB 2023 was not enacted with a racially discriminatory purpose." In doing so, the Court has upheld discriminatory voting laws and weakened Section 2 of the Voting Rights Act -- which will make future challenges even harder.

Latest in a long line of coffin nails for Voting Rights Act

A central goal of conservative jurisprudence is the carving back of federal protections, and the empowerment of states over vast swaths of social and civil life. This decision is part of a long trajectory of the Court limiting federal protections and devolving power back to states. Voting rights are a clear example of this trajectory, and the Brnovich decision now lays against its forebears, particularly the Shelby County v. Holder decision. And indeed, Chief Justice Roberts has been patiently preparing to dismantle Section 2 of the Voting Rights Act for 40 years. His careful long game may end in checkmate for majority rule as we know it.

Arizona: Ground zero

It is fitting that this latest decision upholds Arizona laws. Despite eking out a Biden victory, Arizona remains a Republican trifecta controlled by arch-conservatives in the legislature and governor's mansion. In a state where just a few votes can be dispositive to an election (just look at Biden's 10,457-vote margin), this red trifecta has gone into voter suppression and conspiracy overdrive since the 2020 election. A drawn-out "fraudit" of the election has worked to undermine trust in democracy and has served as a blueprint to other GOP-controlled states. And a suite of laws have carved back voting rights and access, including a new bill to strip the (currently Democratic) secretary of state's power around key aspects of election administration.

State legislatures matter — now more than ever

As Rick Hasen has explained, Alito's opinion in the 2018 Abbott v. Perez case makes it essentially impossible for a court to find racially discriminatory intent in voting laws when race and party categories overlap. But, obviously, given long-existing patterns of racial voting polarization, they will often overlap. This means that state legislatures can use this naturally-occurring circumstance to shield discriminatory intent to their heart's content, without concern for violating Section 2. They can discriminate based on race while pretending they're simply using partisanship. This has been the recent GOP strategy on gerrymandering. It will now be the go-to move in red state legislatures nationwide on voter suppression. This Court won't stop it. They've rolled out green lights and eliminated any speed limit.

The bottom line is that the Brnovich decision must serve as a loud warning: The Roberts Court cannot and will not protect voting rights. And the truly breathtaking deadlock in the Democratic federal trifecta over a new federal voting rights law makes clear that we absolutely cannot wait for Congress to act either. The answer is clear: On voting rights and so much more, the buck does and will continue to stop with state legislatures. We must elect legislators who will fight to protect voting rights — down-ballot, where it matters most and is too often overlooked — or risk becoming a nation filled with democracy deserts, where your right to vote depends on where you live and your access to the polls depends on the color of your skin.

This is John Roberts' America. The stakes could not be higher. No one is coming to bail us out.


Happy Holidays!