Judge Luttig: Independent State Legislature Theory is Nonsense

The Supreme Court will decide before next summer the most important case for American democracy in the almost two and a half centuries since America’s founding.

In Moore v. Harper, the Court will finally resolve whether there is a doctrine of constitutional interpretation known as the “independent state legislature.” If the Court concludes that there is such a doctrine, it would confer on state legislatures plenary, exclusive, and judicially unreviewable power both to redraw congressional districts for federal elections and to appoint state electors who quadrennially cast the votes for president and vice president on behalf of the voters of the states. It would mean that the partisan gerrymandering of congressional districts by state legislatures would not be reviewable by the state courts—including the states’ highest court—under their state constitutions.

Such a doctrine would be antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution.

The independent-state-legislature theory gained traction as the centerpiece of President Donald Trump’s effort to overturn the 2020 presidential election. In the Supreme Court, allies of the former president argued that the theory, as applied to the electors clause, enabled the state legislatures to appoint electors who would cast their votes for the former president, even though the lawfully certified electors were bound by state law to cast their votes for Joe Biden because he won the popular vote in those states. The Supreme Court declined to decide the question in December 2020. The former president and his allies continued thereafter to urge the state legislatures, and even self-appointed Trump supporters, to transmit to Congress alternative, uncertified electoral slates to be counted by Congress on January 6.

That as many as six justices on the Supreme Court have flirted with the independent-state-legislature theory over the past 20 years is baffling. There is literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding or the Constitution’s framing for a theory of an independent state legislature that would foreclose state judicial review of state legislatures’ redistricting decisions. Indeed, there is overwhelming evidence that the Constitution contemplates and provides for such judicial review.