The Independent State Legislature Theory
Following the 2020 presidential election, as unfounded claims of widespread voter fraud and corrupt administrators proliferated, many conspiracy theorists and partisan actors pushed for aggressive election administration changes. Their efforts resulted in the enactment of restrictive measures constraining access to the polls, limiting or reassigning local and state election powers, and creating new investigatory offices that elevated the false specter of widespread fraud.
With this momentum also came renewed support for the “independent state legislature theory,” a fringe constitutional interpretation that, if adopted, threatens to shield from legal challenges many harmful and even illegal election-related measures, like unnecessary voter registration hurdles or unfairly gerrymandered districts. Under the most extreme version of the theory, state constitutions, state courts, citizen initiatives, and even gubernatorial vetoes would be unable to impose checks on state legislation regulating national elections. Additionally, some election deniers have even cited the illegitimate theory as a potential avenue for overturning election results.
The independent state legislature theory is primarily based on a novel and literal interpretation of the U.S. Constitution’s Elections Clause, which reads, in part, “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Though “the Legislature thereof” has historically been read to include all components of the legislative process as dictated in state laws and constitutions, supporters of the theory argue — in a radical departure from this precedent — that the phrase is literal, only referring to the state’s elected representative body.
Moore v. Harper
In June 2023, the U.S. Supreme Court ruled against the most extreme aspect of the theory in issuing a decision on Moore v. Harper, a redistricting-related case brought by North Carolina Republican lawmakers who invoked the dubious theory to argue that the state supreme court had no authority to strike down illegally gerrymandered district boundary maps. Though the U.S. Supreme Court has dismissed the theory in several past rulings, four current justices had recently suggested support for some version of it.
In April 2023, after the court had already heard oral arguments, the North Carolina Supreme Court — with a new conservative majority — went back on its previous ruling, opening the door to partisan gerrymandering. Ignoring claims that Moore was now moot, the U.S. Supreme Court issued a decision in June that relieved voting rights experts. In the 6-3 ruling, the court held that “the Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections,” reaffirming checks and balances within states.
However, experts have pointed out that the ruling is limited and leaves room for future election-related challenges in federal courts. NPR reported that the ruling “could invite requests for the U.S. Supreme Court to review whether a state court’s ruling in a case about congressional elections may have gone too far,” which, as legal scholar Richard Hasen wrote in Slate, “sets up a Supreme Court power grab down the line.”
Efforts by State Legislators to Seize Power
While the arguments in Moore v. Harper were perhaps the most brazen recent attempt by state legislators to concentrate power, similar efforts have marked many state legislative sessions since the 2020 election. Records retrieved by American Oversight revealed that Honest Elections Project — the Leonard Leo-founded election integrity group pushing discredited election conspiracy theories — and the American Legislative Exchange Council (ALEC) had worked with legislators in Ohio and South Carolina, and likely other states including Wisconsin, to craft bills providing lawmakers with the opportunity to intervene in lawsuits challenging specific measures or to require legislative approval of certain settlements and consent decrees, like those expanding absentee voting access during the coronavirus pandemic and protecting against undue ballot rejections.
In South Carolina, state Rep. Garry Smith shared the proposed legislation with others in the state House of Representatives and the attorney general’s office. In his email, Smith decried “judicial activism” and the recent changes to election administration that “completely circumvented the legislative process where these things should naturally be addressed.”
Both ALEC and Honest Elections Project filed amicus briefs in Moore v. Harper in support of the North Carolina lawmakers pushing the Supreme Court to adopt the independent state legislature theory. Other “election integrity” groups that supported the plaintiffs include former U.S. Attorney General William Barr’s Restoring Integrity and Trust in Elections, former White House adviser Stephen Miller’s America First Legal, the Public Interest Legal Foundation, the National Republican Redistricting Trust, the Republican National Committee, and Citizens United.
To uncover efforts by such outside groups to amass support for the radical theory among state legislators and attorneys general, American Oversight has filed requests in six states for communications with select groups or mentioning the theory or related cases.
American Oversight has also investigated other efforts by state legislatures to bolster their control of election administration. In Georgia, several members of the General Assembly successfully restructured local elections boards, allowing partisan actors to gain control over election administration. American Oversight obtained documents revealing that the changes often came as a surprise to the board members and typically provoked strong backlash. In one instance, we discovered that the legislative delegation representing Lincoln County opted to dissolve and reform the elections board to circumvent a law requiring that board members be given a hearing before the Board of Commissioners prior to termination.
In July 2021, the Pew Charitable Trusts reported that legislators in 14 states had enacted laws enabling state legislators to take control of county election boards, eliminate secretaries of state’s executive authority, or make local election officials financially or criminally liable for errors in election administration. In August 2022, CBS News reported that in the first two quarters of the year, 33 state legislatures had introduced more than 240 bills intended either to provide the partisan legislature or legislatively appointed officials with more power over election administration than civilian appointees, or to create excessive burdens for nonpartisan election officials.
American Oversight will continue investigating these desperate, anti-democratic efforts to cement partisan control over election administration powers and practices.
