States’ chief justices group argues against independent state legislatures “theory”

By: - September 14, 2022 6:00 am
(Photo by Al Drago/Getty Images)

(Photo by Al Drago/Getty Images)

Calling it “invalid,” a group of influential judges is coming down against a theory that could give state legislatures the authority to set election and redistricting laws without the oversight of state courts.

The Conference of Chief Justices, a group made up of the nation’s highest judicial officers, filed a rare amicus brief recently in the U.S. Supreme Court case, Moore v. Harper, a North Carolina redistricting battle that hinges on the independent state legislature “theory,” laying out its opposition. Tennessee Chief Justice Roger Page did not participate in the brief and declined to comment.

The question largely revolves around whether power to control redistricting and elections lies solely with legislatures or whether authority should continue to be shared with the executive and judicial branches.

The conference summarized its argument by saying the nation’s Elections Clause, which gives states the authority to run congressional elections but subject to congressional oversight, “does not bar state court review of state laws governing federal elections under state constitutional provisions.”

In my opinion the ability of the legislature to operate independently in establishing rules and regulations for state elections is of the utmost importance and should not be subject to court interference.

– Rep. Andrew Farmer, R-Sevierville

The issue stems from a case in North Carolina where legislative Republicans are upset that a Democratic majority on the state Supreme Court overruled their redistricting plan, which would have increased the number of GOP seats substantially. The U.S. Supreme Court is to hear the case in its next term.

The judicial conference filing points out the U.S. Constitution provides every state with authority over its structure of government but that before and after the framing of the Constitution, states authorized judicial review under state charters, a practice adopted in the U.S. Constitution.

Furthermore, from the nation’s founding, many state constitutions strongly supported state court review of state elections laws, the filing says.

The conference concluded that the U.S. Supreme Court should “clarify that the Elections Clause does not oust state courts from their traditional role in reviewing election laws under state constitutions.” It added that if the Elections Clause does impose any “independent constraint” on state-court review of state laws on federal elections, “one that overrides the foundational rule that state courts authoritatively determine the meaning of state law,” the review should set a “clear standard and be highly deferential to state court decisions.”

Two attorneys in the Tennessee General Assembly take opposing views on the case.

"It makes sense that the chief justices conference would oppose this fringe theory," said Rep. John Ray Clemmons, D-Nashville, an attorney. (Photo: John Partipilo)
“It makes sense that the chief justices conference would oppose this fringe theory,” said Rep. John Ray Clemmons, D-Nashville, an attorney. (Photo: John Partipilo)

Responding to questions from the Tennessee Lookout, Republican state Rep. Andrew Farmer, a Sevierville attorney, says via text, “In my opinion the ability of the legislature to operate independently in establishing rules and regulations for state elections is of the utmost importance and should not be subject to court interference.”

In contrast, Democratic state Rep. John Ray Clemmons, says in a text statement the independent state legislatures “theory” is being pushed by a “small minority of the far right” and that it poses a “very real, direct threat to the integrity of federal elections.”

Clemmons contends it is designed to “railroad legal challenges to redistricting” and has little support among “real lawyers.” 

“Because the independent state legislatures theory would effectively give state legislators free rein to violate the state Constitution with respect to federal elections and prevent our state courts from stopping them, it makes sense that the chief justices conference would oppose this fringe theory,” says Clemmons, a Nashville attorney. 

The nation’s highest court has never invoked the doctrine, but three justices broached the idea in deciding the Bush v. Gore case in 2000 that determined the outcome of the presidential vote, the Associated Press reported.

More recently, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch endorsed the “theory” after former President Donald Trump tried to use it to overturn the 2019 elections results by having state legislatures in battleground states consider alternative lists of electors. Chief Justice Brett Kavanaugh then noted the matter would continue to arise until the court makes a decision.

Tom Wolf, deputy director of the Brennan Center’s democracy program, says the doctrine is “bogus.” He notes state Supreme Court justices are able to speak to U.S. Supreme Court justices in a unique way because they are their “closest peers,” giving the brief quite a bit of “weight” in an “even-handed and metered way.”

While the state justices group takes a “neutral” role that focuses only on its opinion of the law, Wolf says a move by the Supreme Court to adopt the so-called theory would undermine the nation’s separation of powers.

“A vote against the (theory) is a vote for a system of checks and balances that we’ve had in this country for centuries and is … considered uniquely American,” Wolf says.

Adoption of the independent state legislatures doctrine would eliminate those checks and balances at the state level and create a system in which only legislators make decisions about elections, ending gubernatorial veto power and judicial oversight, he contends.

Legislatures would be able to ignore constitutions as well as ballot initiatives and referendums, which give the public opportunities to shape laws, Wolf adds. Further, Wolf says the arguments being made for the “doctrine” are “staggeringly anti-democratic.”

Asked if the move is reaction to Trump’s efforts to overturn the presidential election, Wolf says it’s important to separate the attempted “election overthrow” from the independent state legislatures theory, in that it is “not a license to coup.”

“However, the (theory) was certainly part of the attempts to change the outcomes of elections,” he says, pointing toward an effort in Pennsylvania.

The prospect of the independent legislature doctrine taking effect drew mixed reaction in Tennessee when the case was publicized initially.

Tom Wolf, deputy director of the Brennan Center’s democracy program, says the doctrine is “bogus” and called arguments in favor of the case “staggeringly anti-democratic.”

MTSU political science professor Kent Syler previously said it would be “good for gerrymandering but bad for representative democracy.”

Lt. Gov. Randy McNally, in a previous statement, said he favors the doctrine because it would increase the power of the state Legislature and their constituents. However, Senate Republican Caucus Chairman Ken Yager said he would be leery of “any effort to diminish the role of state courts.”

Democratic state Sen. Heidi Campbell of Nashville said she felt it would be a “dangerous interpretation” of law that would enable legislatures to influence elections without checks and balances.

A three-judge panel created by the Legislature to handle constitutional and redistricting challenges found the state Senate’s redistricting plan this year to be unconstitutional. But the Tennessee Supreme Court, in an expedited decision, overruled the lower court by determining that redrawing the plan would take too much time and cause confusion in the election process.



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Sam Stockard
Sam Stockard

Sam Stockard is a veteran Tennessee reporter and editor, having written for the Daily News Journal in Murfreesboro, where he served as lead editor when the paper won an award for being the state's best Sunday newspaper two years in a row. He has led the Capitol Hill bureau for The Daily Memphian. His awards include Best Single Editorial from the Tennessee Press Association.

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