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Beware the "Independent State Legislatures doctrine" -- it could checkmate democracy
https://www.salon.com/2021/09/27/beware-the-independent-state-legislatures-doctrine--it-could-checkmate-democracy/. . .
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.
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.
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