Q&A: A supporter of independent legislature theory makes his case

The U.S. Supreme Court next month will hear arguments in Moore v. Harper, a case that will test a so-called independent legislature theory that would give broad new powers to state legislatures that oversee the decennial redistricting process and the manner by which presidential electors are chosen.
The United States Supreme Court. Photo credit: dbKing via Creative Commons.

The U.S. Supreme Court next month will hear arguments in Moore v. Harper, a case that will test a so-called independent legislature theory that would give broad new powers to state legislatures that oversee the decennial redistricting process and the manner by which presidential electors are chosen.

To get a sense of the questions justices will face, and pose, and of the magnitude of their potential decision, we spoke with Jason Snead, executive director of the Honest Elections Project, a group that backs the independent legislature theory.

The Honest Elections Project is tied to conservative legal activist Leonard Leo; the group held its kickoff event this summer at the annual meeting of the American Legislative Exchange Council, an organization of conservative legislators.

The conversation has been lightly edited for length and clarity.

Pluribus News: How would you describe what the independent state legislature theory is?

Jason Snead: It is the text of the Constitution. This case fundamentally is about the elections clause, which I think is very plain and straightforward, that legislatures are responsible for writing the laws that govern federal elections. And when we get down into the weeds and you read some of the stuff that folks are saying about how this is potentially dangerous for democracy or so forth, that very central point often gets lost. 

Fundamentally, the case is about the plain text of the Constitution, and fundamentally is about the basic fact that legislatures are the body which the Constitution says are responsible for writing the laws that govern federal elections.

PN: Where did the theory in this case come from?

Snead: There’s about a century or more of Supreme Court jurisprudence on the question of what the word “legislature” means in the context of the elections clause itself.

More recently, there have been a series of court cases, including the Supreme Court in Bush v. Gore, that touched on what “legislature” means. It has popularly become known as the independent state legislature doctrine or the independent state legislatures theory, but given the fact that you’ve got more than a century worth of case law at the Supreme Court level, talking about legislature in the elections clause, I tend to think that it’s better to refer to it as a question of constitutional text rather than naming it something that sounds kind of new.

PN: What makes this different this time around?

Snead: First of all, this is not the first time obviously that the court has considered these sorts of issues. It is potentially the first time that the court will actually issue a ruling, certainly since the 2020 election, on the quote unquote independent state legislature doctrine itself.

We are in a cycle here now where each election we see special interests, political parties, organizations suing over election laws. Sometimes state courts tend to take the bait and exercise judicial power to change, modify, or wholesale rewrite particular aspects of election code in a state. And then the case goes to the US Supreme Court. And you know, up until now, the Supreme Court has largely ducked the issue.

This particular case obviously arose out of a redistricting case, which is interesting, not necessarily the vehicle that I expected to have reached the court and raised this issue.

But it’s not the first time that the court has considered this. In Pennsylvania for instance, the Supreme Court did not decide to hear a Pennsylvania case that dealt with the 2020 election, and got chastised a little bit by Justice [Clarence] Thomas in a dissent from the denial of cert, where he pointed out that the question of election litigation is not going to go away anytime soon, that it could be outcome determinative and future elections.

And if the court doesn’t take a case out of the context of an election, it’s going to wind up in a situation where it could be effectively forced to decide the outcome of a future election, a la Bush v. Gore. And I think that what you’re seeing now, part of the reason that the court is taking this case in particular right now, is so that it doesn’t have to do that and it doesn’t have to wait for a presidential election, where it is heated, divisive and the court is in the position of being seen, rightly or wrongly, as making a decision that will decide the outcome of a presidential election. I think they want to avoid that.

PN: What makes this case so potentially significant when it comes to election law?

Snead: This potentially affects a waterfront of election issues. One of the things that we’ve seen over the last decade is that groups on the left in particular, have developed a truly staggering operation that is devoted to using courts to change election laws, and they become more aggressive as time went on and 2020 was sort of a high watermark for that effort. before election day, we saw more than 200 cases filed by progressive groups or the Democratic Party itself, all seeking to use COVID in some way, shape or form as a justification for courts to change voting procedures in the middle of elections.

Fundamentally, they have a theory that state courts should be able to use ambiguous clauses of state constitutions to rewrite election laws. And that was what happened in North Carolina. That was what happened in Pennsylvania in 2020. When we’re talking about allowing late ballots on dated ballots to be counted.

If you get a ruling from the U.S. Supreme Court that says the Elections Clause plainly says legislatures write election laws, there’s more than a century of case law that demonstrates that legislatures are in the driver’s seat and state courts cannot rewrite or invalidate election laws on a whim, then potentially that substantially reduces the amount of litigation that the left can bring.

PN: What are the potential ramifications for redistricting?  

Snead: It depends on what sort of a ruling that you get from the court. A number of states have selected independent redistricting commissions, the process for how those redistricting commissions have been created, what role if any, they permit the legislature to play. That kind of thing becomes irrelevant depending on what you get in terms of ruling from the Supreme Court.

My sense is that one very likely place for the Supreme Court to land is that while state courts obviously have a role to play in the process, legislatures are in the driver’s seat. And to the extent that that legislatures exercise their their powers here, the courts cannot simply come in and and disregard or set aside black letter law that legislators pass.

But the question, of course, is, where does the Supreme Court come down because you can get a very muscular reading of the elections clause, you’re going to wind up with a very different set of circumstances than if you get kind of a more wishy washy version.

PN: Are there ramifications for legislators selecting presidential electors?

Snead: The answer here is very straightforward: There’s nothing in this case that affects the selection of presidential electors, or would permit the legislatures to retroactively point a different slate of electors. 

if the people vote one way or legislature says well, we wanted to go a different way, there’s nothing in this case and there is no outcome from this case that has any bearing whatsoever on that. We have to remember that even under a muscular ruling of the elections clause and the meaning of the term legislature, you have more than a century of case law that says that legislature in the context of the elections clause refers to a process for legislating, right?

If the legislature tries to act in a way which violates either federal law or the federal constitution, that is grounds for a legal challenge. And the federal constitution says that Congress has a role to play here the Congress can set the date of an election they have done that. So we know what date elections are held. You know what date the electors are appointed. And if a state tries to come in after the fact and outside of the context of an established law, retroactively changed the outcome of an election, there are all sorts of challenges that you bring in, there’s no reason on earth to believe that they would be anything but successful.

PN: If a majority of justices embrace the idea of the independent state legislature theory, what might the ruling look like?

Snead: It’s difficult to say, obviously, reading the tea leaves even before there’s no oral argument is always a dangerous thing to do.

But I think that there is is a place that the court might go, it’s based on a footnote, by Justice [Brett] Kavanaugh in a 2020 case, actually, that dealt with Wisconsin and one of the numerous challenges to Wisconsin law in the context of 2020 election, basically pointing out that, you know, while while there may be a role for courts to play in terms of interpreting vague statutes or vague provisions of law or regulations, if a legislature has acted in spoken the clarity in which you have a black letter text for instance, says, ballots shall be received by Election Day, that under the elections clause, courts cannot simply ignore that and rewrite that.

So if there’s some ambiguity, they can do their jobs, but if there is a plain black and white provision, a commandment from the legislature that has been enacted into state law, courts must honor and respect that that could be a place that they that they land.

Then of course we saw three justices earlier this year in the context of Pennsylvania lawsuit pointing out that the word “legislature” clearly must mean something. And there clearly must be some limitation on the power of other organs of state government, because the founders were fully capable of vesting that power in particular agencies of government or not, and here they clearly chose to put it in the in the hands of legislatures checked by federal law in the federal constitution. So we’ll see where they come down, but that’s one potential offramp for them. And I think that that would would go a long way towards helping to restore balance in this process and certainty in the law

PN: Do you have a prediction about how the justices will rule?

Snead: I don’t know that I’m going to make a prediction. I certainly hope that we get a ruling that brings clarity to code to the law and to our understanding of what courts can and cannot do. And I hope that we get that now with this case, before we find ourselves in the middle of a presidential election, which is going to be divisive, and he did if nothing else.

I think that the more that we can do to avoid that now, the better. It should bring some consistency and a clear understanding of what courts can and cannot do in the context of election litigation.