Will the Supremes Open Another Can of Worms?

Over at Vox is an article about a Supreme Court case that could overturn a longstanding precedent of rejecting a legal theory called the independent state legislature doctrine (ISLD).

The case arises from a Republican-led challenge to the Pennsylvania Supreme Court's ruling that voters whose mail-in ballots have been rejected may cast ballots on Election Day.

Despite the remedy sounding like common sense, the decision was narrow, and the piece explains why the ruling wasn't as straightforward as it might seem. Against this backdrop and the obvious assumption that Democrats would have an early voting edge in this swing state, the GOP asked the U.S. Supreme Court to overturn the decision.

What is interesting is on what grounds they are doing so, namely the legal theory mentioned above:

Image by Joshua Woroniecki, via Unsplash, license.

In its strongest form, the ISLD claims that each state's legislative branch has exclusive authority to determine how federal elections are conducted in that state. That means that a state governor cannot veto laws governing federal elections, even if the state constitution typically allows the governor to veto bills passed by the legislature. It means that states cannot alter their election laws through ballot initiatives or referendums. It means that state courts cannot enforce state constitutional provisions that protect the right to vote. And it even calls into question state court decisions interpreting state election laws.

In Genser, the Republican Party doesn't go to any of those extremes. But they do claim that by interpreting Pennsylvania law to permit the impacted voters to cast a ballot on Election Day, the state supreme court robbed the state legislature of its supposedly exclusive authority to write election laws.

But even in its weaker forms, the ISLD is dangerous. The last time an independent state legislature doctrine case was before the Court, in Moore v. Harper (2023), an array of conservative luminaries and former top national security officials warned the justices to stay far, far away from the ISLD, lest they destabilize America's entire system for choosing its leaders. That included a brief on behalf of retired admirals, generals, and service secretaries -- some of whom held high-level political appointments in Republican administrations -- who warned that the ISLD "undermines election integrity and exacerbates both domestic and foreign threats to national security." [links removed, bold added]

As the piece explains, the legal theory is based on a reasonable-sounding, but anachronistic reading of the term legislature in the Constitution:

When the Constitution was drafted, the concept of a popularly elected legislative body was a relatively new innovation, and the word "legislature" did not always refer to a body, like the US Congress, which was defined as the "legislative" branch of government. Instead, it meant, in the words of one 1828 dictionary, "the body of men in a state or kingdom, invested with power to make and repeal laws."

I am no legal scholar, but this sounds plausible to me, and the court has rejected ISLD for over a century.

As if it is not ominous enough that the Court is even bothering to take this case, Vox explains how Chief Justice Roberts may have carved out an excuse to overturn the precedent within a recent dissenting opinion.

And don't forget: This same Court overturned Roe vs. Wade.

-- CAV