Independent legislature theory adopts election, gerrymander implications

The independent legislature theory is a concept state legislatures want to adopt in Ohio, Florida and North Carolina, with other states exploring the logistics of it.

The concept is a right-wing theory that interprets the word “legislature” specifically in the U.S. Constitution as a free body where the states would have the power to create their own laws. In this case, the state legislatures would have total power in regard to national elections and gerrymandering laws.

Gerrymandering laws are prevalent in all states, but in swing states such as Ohio, the effort to redistrict city and county lines to promote voting efforts is seen more commonly — as of now, the legislature theory is just that in Ohio, a theory.

“Things like we’ve seen recently in Ohio, where we have an Ohio constitutional amendment that the state Supreme Court is enforcing, and telling the state legislature that they have to do certain things in the way they conduct elections to avoid gerrymandering,” said Michael Gentithes, associate dean of academic affairs and associate professor at the University of Akron Law School.

Martin Belsky, emeritus dean and Randolph Baxter Professor of Law at the University of Akron Law School, said avoiding gerrymandering wouldn’t be possible if the theory was endorsed by the Supreme Court or the Ohio Supreme Court. It would allow all of the power to be in the state legislature without any checks or balances from other branches of government.

The theory traces back to the Bush v. Palm Beach County Canvassing Board decision in which the Florida government had violated the Equal Protection Clause — the 14th amendment that requires each state to provide equal protection — by ordering a partial recount of votes in the 2000 Bush vs. Gore presidential election.

“If this gets adopted the repercussion is that state legislatures have total control over how elections are conducted without a check from their state constitutions or from their state courts,” Gentithes said. “Which would render a lot of the litigation over gerrymandering in Ohio [invalid].”

The independent state legislature theory also introduces the idea of states having total control over elections, regardless of how people in the respective state vote. Belsky said the language in the independent legislature doctrine disregards the constitutionality of state legislatures.

“States more recently in 2020 have said ‘No, we get to decide whether or not the legislator’s decision is legal and constitutional,’ and that’s the depths of theory,” Belsky said. “Congress and Republicans in Congress right now [are] arguing … that the legislature makes the ultimate decision, and the Supreme Court of the states cannot intervene.”

If gerrymandering issues go up to the U.S. Supreme Court, Belsky said they will not get involved due to it being a political question. Each state has the right under their own constitution to determine whether or not they will control gerrymandering. 

“More recently in Ohio, the Supreme Court of Ohio, they said that the decision being made by the state legislature of gerrymandering, for congressional seats, is in violation of the state constitution,” Belsky said. “Therefore, the legislature has to be reapportioned in accordance with the law.”

Independent state legislature theory can be deemed as election fraud when paired with gerrymandering, Belsky said. It eliminates democracy by having the legislators decide who wins in presidential elections by having one sole vote on behalf of the state regardless of how the people vote. 

“[The Ohio Supreme Court] is going back to this ancient dubious interpretation that gives the state legislatures the right to read elections, and basically do whatever they want to do,” said Debbie Barber, president of the Kent chapter of the League of Women Voters.

According to the Brennan Center, this theory could cause significant disruption to presidential elections via each state’s individual laws that affect voting. Barber said the theory is damaging to voters everywhere.

“This was a very obscure, questionable theory, from way back when the founders founded the Constitution,” Barber said. “And to dust it off and bring it back now, it seems to me a desperation move to continue to control elections in the states without the will of the people.”