Lots of pixels have been spilled on a legal theory once considered fringe, the Independent State Legislature doctrine. This theory threatens to wreak havoc with centuries of election law. Two upcoming Supreme Court redistricting cases cite this doctrine. Both are brought by Republican-controlled legislatures, so you’d think it would be of net benefit to their party. I did the math. Like the web ads say, the answer might surprise you.
Until recently, the theory was considered radical. It is based on Article I and II of the Constitution, which assign state-level power to regulate federal elections to legislatures. In two cases, Moore v. Harper and Costello v. Carter, lawyers representing Republican legislators question how much of a role the word “legislature” leaves for state courts.
A favorable ruling would go against precedents going back to George Washington’s first term of office. Ironically, the North Carolina General Assembly itself, represented in Moore v. Harper, passed a law two decades ago explicitly handing authority over redistricting to the state Supreme Court they now oppose. But recent Supreme Court rulings – on abortion, on religious expression, and on election law – make clear that the Court is unafraid to break from the past when there’s power or policy at stake.
If the Supreme Court does rule in favor of the theory, voters across the nation will take a major hit in the form of fewer competitive seats. Legislators generally draw safer districts than courts or independent commissions. I have analyzed ten states whose redistricting will potentially be affected by the ISL doctrine. In these states, up to 25 competitive Congressional districts would be replaced by single party-drawn plans. That’s over half of the competitive districts drawn this year! (Contrary to what is being said out there, there’s actually a fair lot of competition in the new maps. That’s a topic for a different day.)
The Independent State Legislature theory would disrupt the partisan balance that has emerged in many states. To determine this, I estimated what a party-blind redistricting process would produce in the ten states* that would be currently affected by the theory. The Princeton Gerrymandering Project has performed computer simulations** and used fairness metrics to identify neutral ranges of outcomes. Only two states, both under single-party control, have outcomes outside the range, Florida (R) and Maryland (D). Left unchecked, single-party control would let the other eight states join them.
However, Congressional power is determined not by single states, but by their combined total representation. So let’s add it all up….