The Partisan Implications of the ISL Theory

[Nevilledog]

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"That impact [of ISL] could be highly invidious. State legislatures could be able to suppress and subvert congressional votes free of state legal impediments. State legislatures could be able to wreak similar havoc in presidential elections."

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The Partisan Implications of the ISL Theory
Read the latest by Nicholas Stephanopoulos.
3:00 PM · Aug 29, 2022

https://www.democracydocket.com/news/the-partisan-implications-of-the-isl-theory/

Observers of the debate over the independent state legislature (ISL) theory would be forgiven for assuming that its adoption would benefit Republicans. In the U.S. Supreme Court’s pending ISL case, Moore v. Harper, it’s Republican politicians who argue that the North Carolina Legislature should be allowed to gerrymander in Republicans’ favor without any state constitutional constraints. A generation ago, Chief Justice William Rehnquist invoked the ISL theory in Bush v. Gore to explain why he thought Florida’s recount should be halted while George W. Bush was still in the lead. In 2015, Chief Justice John Roberts penned a dissent maintaining that the authority of the Republican-dominated Arizona Legislature was unlawfully infringed by the establishment of an independent redistricting commission. And in litigation concerning the 2020 election, only Republican–appointed justices referred favorably to the ISL theory, and only in suits brought by former President Donald Trump and his allies.

However, at least in the context presented by Moore — congressional redistricting — this assumption is too quick. Of course, in North Carolina itself, the adoption of the ISL theory could result in a fair map being replaced by a Republican gerrymander. But nationwide, North Carolina is more the exception than the rule. Overall, Democrats would modestly benefit from a holding that state legislatures’ ability to draw congressional districts can’t be limited by state courts, independent commissions, or supermajority requirements. To be clear, these partisan effects in no way vindicate the ISL theory. It remains a pernicious claim unsupported by history or precedent that could transfer power to some of the institutions — state legislatures — least deserving of it. Nevertheless, given the Court’s interest in the ISL theory, its partisan implications are well worth investigating.

The first step is to determine which states could be affected by a ruling in favor of the petitioners in Moore. This is easier said than done since no such ruling has yet been issued. Still, it’s likely that states in the same position as North Carolina — with congressional plans originally designed by a single party that were then struck down by state courts on state constitutional grounds — would be impacted. This category also includes Maryland, New York and Ohio. It’s likely, too, that any ruling in favor of the Moore petitioners would reverse the 2015 Arizona decision and invalidate independent commissions responsible for congressional redistricting. If state legislatures’ mapmaking authority can’t be curbed by courts, it can’t be curbed by commissions either. Arizona, California, Colorado, Idaho, Iowa, Montana, New Jersey, and Washington all currently have unified Democratic or Republican governments that could freely gerrymander if the states’ commissions were nullified.

Additionally, judicial recognition of the ISL theory would probably doom supermajority requirements for enacting congressional plans. These requirements also amount to state constitutional restrictions on the ability of state legislatures to craft congressional districts as they see fit. At present, Connecticut and Maine have unified Democratic governments bound by supermajority redistricting thresholds. Lastly, one could argue that gubernatorial vetoes of congressional maps would also violate the ISL theory. But this position was rejected by the Court in a 1932 decision that no one, to my knowledge, now says should be revisited. So I don’t further consider the possibility that Moore would enable state legislatures to sideline adverse governors.

*snip*

[ColinC]

1. Kinda interesting

Might be one of those "be careful what you wish for" things for the repugs.