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Beware of the Dangerous Independent State Legislature Theory

Everyone who cares about democracy should make themselves aware of the dangerous independent state legislature theory that may already have majority support on the United States Supreme Court.

Judd Legum at Popular Information goes into the history of the independent state legislature theory and how it could be used to overturn any 2024 election result to which Republicans object. Chief Justice John Roberts, who gets far too much credit from liberals, has laid the foundation for this dangerous theory in a series of opinions that struck down many voter rights laws. And Federalist Society leader Leonard Leo, who has been successful in overseeing radical right efforts to take over the Supreme Court and much of the federal judiciary, is now raising money to push this theory.

As Legum explains:

The independent state legislature theory was promoted by Trump’s lawyers after the 2020 election to argue that state legislatures could simply ignore the election results and appoint electors pledged to Trump. Such actions, according to the independent state legislature theory, would be unreviewable by state courts even if they directly violated state constitutions. 

Advocates of the independent state legislature theory argue that this means that, apart from Congress, the state legislature has absolute power over the administration of elections. This power, according to the theory, cannot be constrained by state constitutions or state courts. 

The most important thing to know about the independent state legislature theory is that it makes no sense. State legislatures do not exist independently. They are created and constrained by state constitutions. And state courts interpret state constitutions. 

The idea that the intention of the Election Clause is to allow state legislatures to violate the state constitution is absurd. 

The Strict Scrutiny podcast also recently featured an episode focused on debunking the independent state legislature theory. I encourage you to give it a listen.

Our democracy is over if the Supreme Court adopts it, and four justices have already signaled their support.

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