Will pro-legislature elections theory in SCOTUS case come to Indiana?

With North Carolina’s case up in the fall, the once-niche theory has risen in prominence

By: - August 8, 2022 7:00 am

A unique independent state legislatures theory is awaiting a ruling in North Carolina; hasn’t grabbed hold here in Indiana. (Monroe Bush for Indiana Capital Chronicle)

North Carolina’s Republican-dominated General Assembly may be all-in on the once-fringe legal theory that the U.S. Supreme Court plans to consider this fall, but it doesn’t appear Indiana is headed that way anytime soon.

The court in Moore v. Harper will decide if the U.S. Constitution gives only state legislative bodies the power to regulate federal elections in their states, without state court oversight.

Legal experts recently warned a congressional committee that if the U.S. Supreme Court upholds the case that embraces the election theory, it would undermine future elections across the country.

Elections Clause:

“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 as to the Places of chusing Senators.”

Source: constitution.congress.gov

“I know North Carolina is really pushing it, you know, because of the court cases they’ve had and overruling of their maps, which we haven’t seen here,” said Sen. Jon Ford, chair of the Senate Elections Committee. “We did our maps and [faced] no lawsuits or anything like that.”

“I think it was fair and balanced and we heard from lots of Hoosiers, so probably just keep it the way we’ve been doing it – from my point of view,” he added.

Meanwhile, House Elections Committee Chair Rep. Tim Wesco said, “I’m afraid I haven’t heard anything about it.”

The case centers on the independent state legislature theory, which hinges on the reading of the word “Legislature” in the Constitution’s Elections Clause and Electors Clause. The word has traditionally been interpreted as meaning states themselves, but theory adherents argue it refers only to a state legislative body.

“The Constitution is notoriously vague on … who qualifies as a legislator,” said Laura Merrifield Wilson, a political science professor at the University of Indianapolis. “Oftentimes, it’s been viewed as any elected official, that would include someone in the executive branch, like the governor. [The theory] is the perspective that the state legislatures ought to have more rights.”

Electors Clause:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

Source: constitution.congress.gov

Under some interpretations of the theory, general assemblies could shut out key election administrators like secretaries of state and election commissioners and wrest control of electoral college voter selection from both main political parties. In states with redistricting commissions and gerrymandering bans (Indiana is not one), legislatures could theoretically sidestep them.

“When I was in graduate school 10 years ago, this was never anything we talked about,” Wilson added. “Not that it hasn’t existed, but it was so on the fringe that it was not a conversation piece. But it is certainly prevalent now for a lot of reasons.”

Voting rights advocates are watching with apprehension.

Julia Vaughn, executive director of elections watchdog Common Cause Indiana, said the Supreme Court’s approval of the theory could allow state lawmakers to flout state laws and state court oversight.

“If this decision were to go the North Carolina legislature’s way, it would set a dangerous precedent for states across the country,” Vaughn said. “The Indiana General Assembly already has pretty free rein when it comes to redistricting, so we certainly don’t need a court decision that removes any oversight.”

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Leslie Bonilla Muñiz
Leslie Bonilla Muñiz

Leslie covers state government for the Indiana Capital Chronicle with emphases on elections, infrastructure and transportation. She previously covered city-county government for the Indianapolis Business Journal. She has also reported on local, national and international news for the Chicago Tribune, Voice of America and more. She holds an undergraduate degree in journalism from Northwestern University.