Opinion | Susan Knopf: Independent legislature theory — a storm ahead
Remember Dorothy and the Wizard of Oz? In Kansas, like in Colorado, you have to watch the sky for the weather that’s coming. Here in Colorado being in the wrong place at the wrong time can kill you.
I can remember being on the top of Loveland Pass, on the Mount Sniktau Trail, decades ago. People descending warned me not to hike in jeans. They said jeans could cause me to get frostbite and die if a storm popped up.
Well, there’s a storm brewing. It’s just out the backdoor. If we don’t all pay attention, it could destroy our country.
It’s called the independent legislature theory. The Supreme Court justices have already announced they will rule on a case testing the theory in the next session. If they rule the way they have been ruling, with extreme conservative points of view, rejecting case law precedents; then nearly every tactic Trump tried to overturn the last election will be legal. The theory makes state legislators unaccountable to any judicial authority.
It’s scary. It would change our system of government.
Independent legislature theory advances the narrowest possible interpretation of two clauses of the U.S. Constitution.
Article 1, Section 4, the elections clause reads, ”The Times, Place and Manner of holding Election 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.”
Article 2, Section 1, the presidential electors clause reads, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”
That last clause is particularly worrisome because there is no prescribed recourse when a legislature throws out the vote of the people and chooses an alternate slate of electors. Does this sound familiar?
Hayward Smith was one of the first to write on this thorny subject. He is considered by the Brennan Center to be a leading authority.
You know all good things run through Summit County (and not just on Interstate 70) right? Smith is no different. His mom and dad have called Frisco home since 1997. They are pretty proud, but they are also worried, as you should be.
For the record, Smith rejects the Independent Legislature Theory and says the framers of the Constitution intended to “empower the people” not the legislators.
What’s at stake? Everything.
Six states voted for Biden in the last presidential election. They have gerrymandered legislatures that are largely extreme MAGA Republican controlled. The Atlantic says there is no state with the reverse: Democratic legislatures and citizens who vote for Trump.
The former president is being investigated in Georgia for trying to change the election vote. “I just want to find 11,780 votes,” he told Republican Georgia Secretary of State Brad Raffensperger. Georgia has changed the law that allowed patriot Raffensperger to faithfully call the election, which was recounted three times. Today the Republican legislature can set aside election results and send their own electors, just as the former president was trying to do on Jan. 6.
A narrow, extreme right-wing interpretation of the Constitution would pave the way for right-wing legislators in six swing states: Arizona, Georgia, Michigan, North Carolina, Pennsylvania and Wisconsin to change the results of the popular vote.
The case to watch is Moore v. Harper in North Carolina, a district gerrymandering case brought by Republicans. These right wingers apparently believe they can only win by cheating. In this case, Republicans contend using independent legislature theory they are allowed to gerrymander districts any way they see fit and there is no possibility of judicial oversight — no checks and balances.
According to an online publication of New York University School of Law, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh have all indicated they would have adopted the theory and its far-reaching consequences.
In 2019 they reversed a case in which the lower court ordered redistricting to insure fair representation. The Supreme Court claimed that federal court has no jurisdiction on state districting matters. We the people lost power thanks to this court.
Justices Thomas, Alito, Gorsuch and Kavanaugh claim to be originalists, as does Amy Comey Barret. But scholars argue anyone desiring to adhere to the tenets of the Constitution and its intention should be horrified with the prospect that state legislators should have unrestrained power.
Recently, the Conference of Chief Justices, which consists of the chief justice or judge of the highest court in all 50 states, as well as Washington, D.C. and the U.S. territories and commonwealths, filed a brief urging the court to reject this theory. This isn’t a partisan matter — every single member of this conference is represented in the brief.
Susan Knopf’s column “For the Record” publishes biweekly on Fridays in the Summit Daily News. Knopf lives in Silverthorne. She is a certified ski instructor and an award-winning journalist. Contact her at firstname.lastname@example.org.
Support Local Journalism
Support Local Journalism
As a Summit Daily News reader, you make our work possible.
Now more than ever, your financial support is critical to help us keep our communities informed. Every contribution, no matter the size, will make a difference.
Your donation will be used exclusively to support quality, local journalism.