Independent State Legislature: the New Pitch-Black

It is always darkest–right before it gets pitch-black.

Sadly, that is also true in constitutional law. The case in point is Moore v. Harper, pending before the U.S. Supreme Court. That the Supreme Court even took this case begs a conclusion that the conservative fix is in and that the Court will decide before the summer of 2023 what J. Michael Luttig (former 4th Circuit Court Judge, appointed in 1991 by President George H.W. Bush) has described as “the most important case for American democracy in the almost two and a half centuries since America’s founding.”

Moore involves whether the Election Clause (Article I, section 4 of the Federal Constitution) validates the Independent State Legislature (ISL) theory.  Not surprisingly, ISL has been and is being promoted by Donald Trump as part of the Big Lie and his effort to subvert Joe Biden’s win of the 2020 presidential election (by both the popular and electoral college votes).

The Election Clause states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except to the Places of chusing [sic] Senators.”

Here’s why the case has drawn the concern of attorneys, judges (including Judge Luttig), and legal scholars across the country.  Republican North Carolina Representative and speaker of the house Timothy Moore is arguing that the Election Clause confers upon the state legislature the exclusive power to redraw congressional districts for federal elections, appoint state electors—and, thus, effectively gerrymander congressional districts to favor one political party and to otherwise subvert citizens’ fundamental right to vote.  I emphasize exclusive power because Moore argues that ISL means that there can be no judicial review of the legislature’s decisions, even if their decisions violate the state’s own laws and constitution.

Judicial review was established as part of the rule of law in the 1803 landmark case of Marbury v. Madison.  Implied from Articles III and VI of the Federal Constitution, judicial review is fundamental to our federal and state tripartite systems of government and their separation of powers and systems of checks and balances. Judicial review provides that the judiciary, not the political branches, determines what the law is, and that actions by the executive and legislative branches are subject to review and possible invalidation by the judiciary if those violate the federal or the state’s constitution.  Judicial review ensures that citizens have access to the courts to challenge unconstitutional or unlawful laws.

ISL would nullify judicial review of legislative actions designed to suppress and subvert our right to vote, even when such laws patently violate constitutional guarantees of our fundamental right of suffrage.

In that regard, keep in mind that Montana’s Constitution at Article II, section 13 provides a fundamental right of suffrage unparalleled in its precision and reach: “All elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

Also recall that Montana Courts, exercising judicial review, determined just this year that several laws enacted by the 2021 legislature violated Montanans’ right to vote.  Under ISL, those laws would have stood; citizens would have been unable to challenge those laws in court.  No matter how unlawful or unconstitutional, the legislature’s enactments would not have been subject to judicial review, notwithstanding the explicit guarantee of our right of suffrage.

According to Judge Luttig and other constitutional scholars, there is no evidentiary support in the pre- and post-ratification history of the Federal Constitution for ISL.  Indeed, there is overwhelming evidence in the text and structure of that Constitution to the contrary.  ISL is bogus.

So, let’s call out ISL for what it is.  ISL is simply the latest fascist power-grab designed to coalesce power in one, all-powerful branch of government to the exclusion of the judicial branch–whose solemn duty is to make sure that the other two branches abide by the provisions of our fundamental, organic law: our Constitution.  ISL is the latest attempt to destroy our democracy, in favor of authoritarianism.

ISL is the new pitch-black.

James C. Nelson a retired Montana Supreme Court justice. He lives in of Helena.