Smerconish.com: The Independent State Doctrine May Soon Be Adopted by the Supreme Court— Frightening!

December 6, 2022 | Madame Justice Sandra Schultz Newman and Ari Mittleman | Smerconish

After the unrelenting crusade by election deniers to overturn the 2020 election, which reached its low point, if not its end, with the January 6 riot, many Americans concerned about our democracy approached the 2022 midterms with trepidation. They breathed a sigh of relief as voters in key states like Pennsylvania, Michigan, and Arizona rejected prominent election deniers for statewide offices like governor or secretary of state that held authority over elections. …

[A] new and possibly more serious threat to our representative democracy looms, and it is being played out before the U.S. Supreme Court. In a case from North Carolina challenging that state’s congressional redistricting process, Moore v. Harper, state legislators disputing the state’s congressional map are invoking a legal theory long considered extreme: the Independent State Legislature Doctrine.

The doctrine would interpret language in the Constitution that delegates power to administer federal elections to the “Legislature” of each state. Another Constitutional provision authorizes the “Legislature” to determine how Electoral College electors are to be appointed in presidential contests. In this context, “Legislature” has long been interpreted as meaning a state’s normal lawmaking process, which includes concurrence by the governor and review by state courts.

The Independent State Legislature Doctrine flips that centuries-old interpretation on its head, giving state legislatures complete and unfettered power over elections, political maps, and even decisions over state certifications of election results for president and other federal offices. It would strip governors of their power to veto legislation relating to elections and deny state courts of the authority to determine if such laws violate their state constitutions ….

“If the Supreme Court values that right that allows each of us to cast a vote and the democratic republic that it protects, it must reject the Independent State Legislature Doctrine and preserve our system of checks and balances.”