In the upcoming case Moore v. Harper, the U.S. Supreme Court will decide whether the term “state legislature” in the U.S. Constitution’s election clause gives state legislatures specific power over election law that cannot be taken away in accordance with the doctrine of “independent state legislature theory.”
In this case, the Supreme Court is asked to decide whether the independent state legislature theory applies to the Constitution’s election clause. The case asks the court to decide whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives … prescribed … by the Legislature thereof” and replace them with regulations of the state courts’ own devising. The Constitution’s election clause reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
Notably, the Framers considered an alternative election clause proposal, the “Pinckney Plan,” which would have said, “Each State shall prescribe the time and manner of holding elections by the people…” and not use the term “legislature.” Pinckney’s text was not adopted in the election clause.
Leftist women’s groups have responded by launching a hyperbolic campaign against the doctrine. League of Women Voters’ CEO Virginia Kase Solomón claims, “The Independent State Legislature Theory is a dangerous, fringe ideology that leaves voters effectively defenseless from harmful election laws.” But what these women’s groups fail to mention is the U.S. Supreme Court relied on independent state legislature theory to grant women the right to vote over a century ago.
The 19th Amendment to the U.S. Constitution says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” On June 4, 1919, the U.S. Congress passed the proposed amendment, but in order for a proposed amendment to become part of the Constitution, Article V requires ratification by “three fourths of the several states.” On Aug. 18, 1920, Tennessee became the 36th state (of the union’s then total 48 states) to ratify the 19th Amendment, satisfying the three-fourths requirement.
But a few months later, in Leser v. Garnett, Oscar Leser filed a lawsuit to prevent women from registering to vote by challenging the validity of the amendment’s ratification. He argued that the state constitutions of Tennessee and West Virginia did not grant their state legislatures the power to ratify. Without those states, the proposed 19th Amendment would not have sufficient support to satisfy the three-fourths requirement. To decide this question, the U.S. Supreme Court used independent state legislature theory. Under Article V, proposed amendments must be “ratified by the legislatures of three fourths of the several states.” Because the framers specifically used the term “legislature,” the court held that “the legislatures of Tennessee and of West Virginia had the power to adopt the resolutions of ratification.”
The minimum number of ratifications was met, so the court held that the 19th Amendment “has become valid to all intents and purposes as a part of the Constitution of the United States.” In so holding, the court explained that a legislature’s “function … in ratifying a proposed amendment to the Federal Constitution … is a federal function derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a State.” As Florida State University Law Professor Michael T. Morley explained, a state constitutional provision purporting to prevent the legislature from ratifying certain amendments to the Constitution would be unenforceable.
League of Women Voters, National Council of Jewish Women, and Republican Women for Progress, who have filed amicus briefs in opposition to independent state legislature theory, are really seeking to impose their own leftist and/or partisan agenda without the consent of the governed. Adopting the textualist doctrine would take away their tools to circumvent and override state legislative action in elections. Such tactics include the refusal of attorneys general to defend redistricting maps or state election laws passed by legislatures in court, getting judges to deny legislatures the ability to intervene to defend their maps, seeking court-ordered redistricting maps, forum shopping for a judge to strike down election integrity laws, and using the courts to gain partisan advantage in redistricting.
Instead of going through the publicly transparent and accountable legislative process for making and changing election laws, these advocacy groups forum shop for a favorable judge who will strike down laws passed by state legislatures. As a result, election administration is tied up in litigation when state election officials need to have time to prepare to run the elections. The courts should not be used to implement radical changes that would never survive scrutiny under the more transparent and accountable state legislative process.
Opponents of women’s suffrage attempted to use the courts to deny the right to vote to women. But independent state legislature theory was applied by the Supreme Court to preserve the 19th Amendment. It’s shameful that leftist and partisan women’s groups — who claim to advance the interests of women voters — have forgotten.