‘Independent state legislature’ theory goes too far even for this court

Thursday, June 29, 2023 | 2 a.m.

Three conservative members of the United States Supreme Court may have finally gotten the hint that some GOP-controlled state legislatures, and their own colleagues on the court, really have gone too far. Meanwhile, the other three conservatives were too busy canoodling with their billionaire benefactors to defend basic democratic norms.

In a decisive 6-3 ruling Tuesday, Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Amy Coney Barrett joined the liberal members of the court in soundly rejecting the “independent state legislature” theory. By doing so, they upheld the centuries-old system of checks and balances on legislative authority over elections.

Under the independent state legislature theory, a previously fringe legal idea that has recently become part of mainstream Republican politics, no one other than state legislatures and Congress can have any voice in regulating federal elections. State courts would have no authority to review federal-election-related polices or maps, even if the policies or maps directly violated state law or the state constitution. And the people of a state could not launch an initiative or referendum to override the legislature.

In other words, the theory effectively strips the people of their right to challenge the actions of their current elected officials on matters of election law.

If upheld, the theory would have allowed the political party that controls a state legislature to act with omnipotence and without any consideration for individual rights or liberties beyond those that are specifically laid out in federal law or the U.S. Constitution.

The court’s decision to reject this anti-democratic theory is the right one. It recognizes that the people’s ability to turn to state courts and challenge partisan efforts to manipulate elections has been a feature of our democracy for more than 100 years.

Moreover, it acknowledges that state constitutions have the potential to be independent sources of rights and protections. State courts have a vital role in adjudicating those rights and protections and, when functioning with the interests of their respective constitutions and residents in mind, they can serve as a line of defense against abuse of power. When functioning properly, state courts can help ensure that elections reflect the will of the people, rather than the whims of wealthy donors, a political party or other special interests.

Which is why it’s notable that Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented in the case. All three justices are facing credible accusations of accepting and failing to disclose inappropriate gifts from Republican megadonors. The accusations raise concerns about their impartiality and commitment to the democratic principles they are sworn to uphold. Now, they are advocating for eliminating the ability of everyday Americans to challenge their elected officials in state court or to override their elected officials via ballot initiative.

In broad terms, their rulings are revealing Thomas, Alito and Gorsuch as eager to eliminate almost any check on the power of the ruling party at the state legislature and its wealthy benefactors. This would allow for stunning abuses in states where the ruling party decides to victimize citizens who oppose their decisions or political ideology.

Roberts, Kavanaugh and Coney Barrett, on the other hand, joined their more liberal colleagues in upholding the power of judicial review by state courts and advocating for federal courts to “not abandon their own duty to exercise judicial review.”

However, the trio’s true commitment to using the power of judicial review to defend American democracy is dubious at best. After all, Roberts and Kavanaugh both joined their conservative colleagues in a 2019 case in which a 5-4 majority of the court refused to address gerrymandered legislative districts.

Thomas’, Alito’s and Gorsuch’s brazen corruption and Roberts’ and Kavanaugh’s inconsistency highlight the growing perception of the court as a partisan institution that lacks independence, credibility and legitimacy.

This week’s bipartisan ruling is noteworthy as it might indicate the latter justices have finally come to realize how low Thomas, Alito, Gorsuch and the national GOP have fallen. However, only a true course change can restore the court’s legitimacy in the long term.

This means enacting a robust code of ethics that applies to Supreme Court Justices and mandates disclosure of all outside political and financial interests. It also means overturning their own decision from just four years ago and taking up cases involving partisan gerrymandering. Congress can help by amending the Voting Rights Act to include basic nonpartisan standards for districts that preserve the rights of all Americans to have their voices heard in the halls of government.