By Henry L. Chambers Jr., Austin E. Owen Research Scholar and Professor of Law

April 10, 2023

The rules of (civic) engagement

The independent state legislature doctrine could reverse 200 years of progress and take power away from the people.

In a case heard on Dec. 7, 2022, Moore v. Harper, the U.S. Supreme Court could decide that state legislatures have control over congressional elections, including the ability to draw voting districts for partisan political advantage, unconstrained by state law or state constitutions.

At issue is a legal theory called the “independent state legislature doctrine,” which is posed through the court’s consideration of a dispute over gerrymandered North Carolina congressional districts. In early 2022, North Carolina state courts found the legislature violated the state constitution when it drew gerrymandered congressional districts favoring Republicans. The legislature has claimed that the U.S. Constitution gives it authority, unfettered by state courts’ interpretation of the state constitution or laws, to regulate congressional elections, and is asking the Supreme Court to agree.

If the court agrees, it could free state legislatures to take power away from voters — “We the People” in constitutional parlance — and reverse a two-century trend toward expanding the power of the people in congressional elections.

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.

Power of the people in early America

The people wielded little power in congressional elections at America’s founding.

The unamended Constitution required United States senators be chosen directly by their state legislatures, not by voters directly. That was the case until the 17th Amendment was ratified in 1913, which requires U.S. senators to be elected by the people.

The Constitution has always required United States representatives be chosen by the people, but who could vote was severely limited.

America’s late-18th century vision of democracy treated voting as a privilege to be doled out by the state, not a right. Voting was typically limited to a narrow band of people — adult white men with property.

Some states, including North Carolina and New Jersey, allowed women or free Black men, or both, to vote in the late 18th and early 19th centuries. Nonetheless, who could exercise power in congressional or state elections was a matter of grace provided by state legislatures.

Power of the people today

As U.S. democracy matured, the people gained power as the electorate expanded through various constitutional amendments.

Voting remains a right provided by each state. However, the states can no longer limit the right to vote based on race, sex, failure to pay a poll tax or age if a voter is 18 years or older.

Functionally, adult citizens who have not been convicted of a crime have the right to vote in federal and state elections.

In addition, the value of a vote is protected. In the 1960s, the Supreme Court recognized the one-person, one-vote doctrine under the Constitution. That doctrine requires each congressional district in a state to contain approximately the same number of residents.

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.

Undoing accountability

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.

Those who advocate the legitimacy of this doctrine say it rests on the Constitution’s grant to state legislatures of regulatory power over congressional elections in Article I, Section 4.

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.

State constitutional and statutory law should reflect the preferences of a state's people.

In addition, state legislative power has been treated as though it is constrained by other state governmental actors. In many states, governors may veto redistricting maps they deem unfair or improper. Similarly, as in the North Carolina case, courts may deem such maps unlawful or unconstitutional. 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.

This essay was first published by the nonprofit independent news organization The Conversation and was distributed by the Associated Press. It appeared in nearly 50 additional print and online publications from New Hampshire to Hawaii.

Q&A

Interview by Matthew Dewald

As the court’s decision on Moore is pending, Professor Chambers talks about voting, election reform, and what surprises today’s students studying election law.

Proponents of the independent state legislature doctrine argue that there are areas in which state legislatures aren’t constrained by a state’s laws or constitution — and that regulating congressional elections is one of them. Are there examples of areas in which a lack of constraint is broadly accepted? I’m thinking, for example, of majority leadership in the U.S. House of Representatives selectively removing minority party members from committees in recent years.

Not really. Legislatures are limited by constitutions — state and federal. If the Constitution is silent, the legislature is not limited. The mentioning of removing folks from committee — perfectly good point. The Constitution has very little to say about how Congress handles its internal business. If those rules, however, run afoul of other provisions of the Constitution, we would have an issue. So if Congress said, “We don’t allow any of our African American congresspeople to serve on any committees,” we may say, “Well, the Constitution has something to say about that.”

That’s separate from the independent legislature doctrine, which seems to suggest that on broader issues, a state legislature has the right to act on its own — doesn’t matter what the state constitution says, doesn’t matter what state law says; they can just act however they want.

What are the potential implications of the court agreeing with this doctrine?

It would be a hyperliteral interpretation of the Constitution. If we take Constitutional language — “The state legislature does X” — to suggest that means the legislature has the first and only word on how to do this particular thing, then there are any number of references that could be interpreted similarly. Who knows what the next thing would be? That’s the bigger issue because it says the legislature doesn’t have to look at the remainder of the law. That’s where things can get weird.

I know you’re not in the tea leaf-reading business, but an argument in favor of this doctrine might be appealing to the self-identified originalists on the court. But at the same time, it’s hard to imagine the Supreme Court taking the power of judicial review away from state courts. Do you have a sense of how this is likely to play out?

With this court, you never know, but I think the key is that there are several stopping points along the way.

What do you mean?

The court need not say the legislature is completely unconstrained by law or it is limited by every legal interpretation its state courts or governor makes. The question is how far down the path the court wants to go.

So they might introduce some sort of test that states’ supreme courts would be required to use?

That’s entirely possible, and that would be messy. Or the court may well look at it and say, “The state legislature is bound by state constitutional law and state statutory law, and if Congress wanted to pass a federal law limiting the state legislature, then it could do that as well.”

Look at it this way. We could say that the reason the Constitution mentioned state legislatures is as a way of saying, “Well, obviously the state legislature is going to be the primary body to draw districts.” But clearly, the state legislature has to act consistent with state law and the state constitution, and that has to also mean consistent with the state supreme court’s vision of what the state constitution requires.

In a similar fashion, as a professor, while I may be responsible for the individual grades that are given in my class, my grading still has to be consistent with the law school’s curve. Obviously the professor is responsible for grades, but nobody would think that means a professor can give whatever grades the professor wants.

It would be the Independent Professor Doctrine.

Exactly. Now you’re talking. But I don’t want that power. We all agree as a faculty that the curve is there for a reason, so it would be odd for me to say that I don’t care. In the same way, it’s not appropriate for a current legislature to say, “We don’t care what the former legislature did.” The way they say that is to repeal that law, not to simply ignore its very existence. That’s why the Supreme Court may well say this doctrine — which might allow a legislature to ignore the law — doesn’t make sense.

Let me broaden the conversation. Election law is incredibly contested these days in ways that I don’t remember in my lifetime. But maybe I’m just being näive and it’s always been like this. Certainly back in the Jim Crow era, it was contested.

Elections really are not legitimately contested today the way they’ve been in the past. Election contests depend on good faith arguments that there was some reason to contest the election. Now, folks are just making wild claims with no evidence, and because they’re willing to file suit, we say it’s contested. Those elections are not legitimately contested.

Elections can be close, but that is different than being contested. The analogy that I give is the 2016 and 2020 elections. Let’s say Hillary Clinton said after the 2016 election, “I can’t believe I lost Wisconsin.” Then Donald Trump said after the 2020 election, “I can’t believe I lost Wisconsin.” We know that those statements mean different things to those people. Hillary Clinton means, “I can’t believe the people of Wisconsin didn’t vote for me,” but Donald Trump means, “They’re stealing the Wisconsin election.” Clinton is not contesting the election. Without evidence, Trump is not plausibly contesting the election. In between is Stacey Abrams in 2018, arguing that she got fewer votes because of voter suppression. That may cast doubt on the legitimacy of the election, but she did not claim that she actually got more votes than Brian Kemp. The language of contestation is tricky.

It also seems like there’s a lot more activism related to the ground rules for elections.

I remind my voting rights students that states run federal and state elections, so voting looks different in different states. The expansion of early voting and other changes based on the concept that we want as many people to vote as possible creates many issues to dispute.

Some people bring up the possibility of fraud. Yes, there could be issues with some early voting, but we’ve got pretty good safeguards for that, particularly if we distinguish between early absentee voting and early in-person voting. In 2022, I voted early at my county government building. That is arguably no different from going to my precinct on the day of the election. Fraud-wise, there’s zero difference between those two things. Even with early absentee voting, stealing votes is just a hard thing to do. If you steal enough votes to actually flip an election, you’re going to get caught. It’s a fool’s game.

The specific issue in the Moore case is gerrymandering. Given that the party in power always has the power to set the rules, is it inherent in our system? Are there states that have found nonpartisan ways to draw districts?

So, you said a mouthful. There are multiple points in what you said. One, nonpartisan versus bipartisan. We don’t really do nonpartisan redistricting. We sometimes do bipartisan because we are stuck in a two-party duopoly, but they’re not the same. Even if there’s a third-party person involved, what they’re doing is carving up the districts for the two parties.

When we get past that, we then ask, “Are there legislatures that do it really well?” Not really. In our current hyperpartisan setting, legislatures can redistrict properly, but only if they have the will. It’s one of the reasons why I think depending on independent redistricting commissions — and I’ll limit it to Virginia at this point — is an abdication. When a legislature says it’s just too hard to redistrict because we don’t trust ourselves, then we need a new set of legislators. In Virginia, the commission never got anywhere near maps that enough of them could agree on, so it went to the Virginia Supreme Court. The Court told two special masters to draw a single map for the court to approve. That is not democracy. It is rule by special master.

What electoral reforms seem promising to you?

An expansion of ranked choice voting would be very interesting. People say it’s confusing, but anybody who’s ever gone to a restaurant understands the concept. You say, “I want the shrimp cocktail,” and the server says they’re out that day, so you make a second choice. We do it all the time. It’s promising because you’re getting candidates who need to appeal to a wider group of the electorate. The more responsive our democracy is to the people, the more it’s going to reflect who we are and what we want.

Multi-member districting could also work well. Historically, it’s gotten a bad rap, but multi-member districting can be structured to allow people with a greater breadth of views to get elected. For example, let’s say we draw a district that is large enough to elect three people. If each voter may cast one vote, a candidate needs only 26% of the vote to get elected because if a candidate gets 26% of the vote, three other people can’t beat that candidate. What might that do? It might bring back conservative Democrats from southwest Virginia or the Shenandoah Valley. It might bring in liberal Republicans from cities. All of a sudden, the legislature looks different. It might also bring in a third party, maybe somebody who appeals to both Democrats and Republicans. You have fewer lines to draw, so there’s, in theory, less gerrymandering.

We have to ask ourselves some serious questions. How tied to the people do we want our legislators to be? These are conversations that we need to be having in coffeehouses, around the kitchen table, and in the places where friends talk to one another, as opposed to just high-level screaming matches. We can do better. We may make it there over time. We’ll see.

One last question, a change of subject. You teach election law to students. What most surprises them?

What shocks my students is the idea that historically we have not been about making it as easy as possible to vote. The Declaration of Independence is 246 years old. The 19th Amendment, which told states they can’t discriminate on the basis of sex in voting, is 102 years, so women have been officially welcomed into voting for less than half of our history. And of course, there are other citizens who were not allowed to vote until more recently. You start to realize that we have not been a country that has wanted as many people as possible to vote. That surprises students.

They’re also surprised when we talk about Bush v. Gore and the idea that fewer than 600 votes in Florida decided a presidential election. Many of them don’t remember it in any real fashion, whereas for those of us around at that time, it was seminal.

It’s fun for me as a professor to ask them, “How much would you pay to vote?” when we talk about poll taxes. Some people say they wouldn’t pay anything. Other people say they would pay whatever they could. That’s where we have a conversation about how, depending on how well resourced you are, you’re going to be willing to pay more to vote. Is that acceptable? A lot of students are flummoxed at the concept of a poll tax, and poll taxes were legal until the 1960s. I say to them, “That was a blink of an eye ago. Ask your grandparents about them.”