tv Hearing on Independent State Legislature Theory CSPAN September 21, 2022 4:52am-6:12am EDT
we intended to start this hearing an hour ago but we were interrupted by votes on the floor so apologies for that. we are holding this hearing in person and remotely and in compliance with the regulation for committee proceedings pursuant to house resolution 8. generally we ask witnesses joining us remotely to keep their microphones muted. we want to limit background noise. >> if you are joining remotely, please keep your camera on at all times. i asked unanimous consent that all members have five legislative days to extend remarks and have any written statements be made part of the record. without objection, that is so ordered.
the independent state legislature theory -- exclusive authority to regulate federal elections under the united states constitution. the theory is not grounded in history or logic but it has gained increasing following in some sectors of america over the last 20 years. it may include some current supreme court justices. the north carolina supreme court struck down the supreme -- gerrymandering of the state congressional district. relied on provisions of the state constitution as the basis for its decision. apply to all federal elections. here today to examine the legal
theory to discuss the evidence or lack thereof supporting of it and perhaps more importantly to explore the consequences to american democracy that would ensue if the court endorses it, this topic may seem dry at times. all 50 states have administrators. some are elected, some are appointed. none are the state's actual legislature. professional, nonpartisan administration is a cornerstone of the modern american right to vote. depending on how the court resolves this upcoming case the entire apparatus could vanish overnight. at least for federal elections, which i would say is important. state politicians would find themselves in charge of federal elections. that is what the framers thought to avoid. the constitution is a reflection of what came before it. the failed experiment of the articles of confederation that
illustrated the perils of living the federal government at the mercy of individual states. the supreme court has explained the remaining purpose of the constitution's elections clause was to avoid repeating that mistake. the independent state legislature theory would turn that goal on its head and give state legislatures power over federal elections. there are admittedly nuances to the theory. one version that focuses on non-delegation to would essentially dissolve all 50 state election administration offices. another version that focuses on state constitutional provisions that lacks specific standards would have a narrower, although to still disruptive impact. we look forward to our witnesses guiding us through those nuances to today. make no mistake, for many supporters the theory is part of a broader plan to seize control of elections. in that sense, the theory is linked to the big lie to former
president trump's scheme to violate the electoral count act. and to the election subversion bills we see around the country that shifts power away from professional election administrators toward politicians. that makes the theory dangerous and disruptive to american democracy. we hope to explore that point in today's hearing. we recognize the ranking member, mr. davis, for his opening statement. >> today's hearing topic is one many americans are not the million with because it is a complicated legal theory. . it is hard to define if you ask democrats what independent state legislature theory means you will get one answer. if you ask republicans, you will get something different. this theory focuses on the constitution's use of the word legislature and what that means. specifically how much authority'is given to a states legislator to -- election law.
we should use this as an opportunity to gather facts and not make accusations. i know some on the left, including sanctioned democrat lawyer, or already setting the stage ahead of 2024 suggesting this theory is all a grand plan by republicans to steal the election, which is not only ludicrous but completely untrue and unfounded. we are seeing some on the left use this theory as a "doomsday" type scenario to fund raise on. [laughter] typical. and an excuse to cover their favorite topic, president trump and the 2020 presidential election, all to support the january 6 committee's investigation. republicans believe the constitution is clear. article 1 section 4 states the
times, places and manners for holding elections shall be prescribed in each state by the legislature thereof but the congress made any time by law may alter such regulations. further, the presidential electors clause states each state appoint each manner as the legislature thereof may direct a number of electors. this should not be controversial. republicans and democrats should both agree states have the primary authority to administer -- administer -- federal elections. and that congress plays a secondary role. this is why yesterday i introduced the american confidence in elections act. a comprehensive bill focusing on the importance of strong election integrity reforms that meet the moment by bolstering voter confidence in our elections while respecting the
constitution, federalism and conservative principles. the ace act insured states maintain -- providing them with the tools they can quickly implement to restore voter confidence and election integrity. it removes outdated federal policy standing in their way. the constitution divides authority between congress and the states. that is why the bill is coupled with legislation for state legislators to consider as we work to improve election integrity. the same election legislation we republicans will implement in the district of columbia to ensure that after years of election crises in the district, residents can trust their votes will be counted fairly and accurately. are driving principle is that every eligible american should have the opportunity to vote. and that their ballot should be counted according to law.
unlike the partisan hr one that was crafted behind closed doors, my bill has been drafted publicly over the course of two years and is the product of feedback and ideas from a large and diverse number of people from congress, stakeholders, state legislators and local administrators across 18 states and territories. both republicans like me and democrats like my colleagues. in fact, we have been working on this bill since before the last presidential election. i invite my colleagues across the aisle in supporting this bill that empowers states to run free, fair elections that promote voters' confidence and drive strong turnout. republicans will champion policies that respect the primary role of states over elections and ensure it gets congress out of the way. thank you again. >> the gentleman yields back.
i will now turn to our witnesses who i will introduce in a minute. i would just note for the witness who is appearing virtually, there is a timer on your screen. we ask each of our witnesses to confine their oral testimony to about five minutes and your full written statement will be made part of the record. welcome to each of our witnesses and thank you for taking the time to be with us today. joining us is a professor from the nyu school of law, a professor from a chicago school of law and a council with the brennan center for justice. this professor is the professor of constitutional law at the nyu school of law, one of the nation's leading scholars in constitutional law and a specialist in legal issues concerning democracy.
a former law clerk to justice thurgood marshall. he has received recognition as a guggenheim fellow and carnegie scholar. he has helped create an entirely new field of study in loss goes. his work in the field systematically explores legal and policy issues concerning the structure of democratic elections and institutions, such as the role of money in politics, the regulation of political parties, the structure of voting systems and the representation of minority interest in democratic institutions and similar issues. she is a professor of law at the chicago-kent college of law. she is the founder and codirector of chicago-kent -- from 2014 through 2016, she
served as illinois solicitor general while on leave from the law school and is a former law clerk to justice stephen breyer. her scholarship is focused largely on the supreme court, its relationship to other courts , institutions and its role in our constitutional democracy. she teaches classes, constitutional law, employment law and policy. council with the brennan center for justice where she focuses on voting rights and elections. she recently co-authored an article examining the history and original intent of the constitution's elections clause. she was a litigation associate in private practice and served as a law clerk to the honorable christina snyder of the u.s. district court of the central district of california. she received her j.d. from
harvard law. you are now recognized for five minutes for your testimony. >> thank you. for the opportunity to testify. >> i will address two issues in my opening remarks. should the supreme court recognized the independent state legislature theory. what is the historical evidence either for or against the recognition of that theory? in discussing this question, it is crucial to recognize the issue is not simply a yes or no of whether the constitution does or does not create an independent state legislature. there are several different versions of such a potential doctrine as the chair and ranking member acknowledged and have different practical implications. if the court were to recognize the question of its scope would
be just as important as whether there is such a doctrine at all. on the first issue, the most extreme version of such a doctrine would maintain the state legislatures cannot be found at such a provision and state constitutions or by voter initiated -- when states regulate national elections. if the court were to embrace that version, here are a few provisions that state constitutions or voter initiatives adopted that could not be applied to federal election. california and washington have been in the top two or top four primary structures. those rules could not be applied unless state legislatures chose to adopt them. constitutions and initiatives established to be used and must be compact. partisan consideration. considerations are constrained, what weight should
be given to competitiveness when drawing districts and whether there should be independent commissions to do redistricting. some state constitutions contain provisions established rotering identification requirement or creating all mail-in voting systems are banning voters who fail to vote in the general election from voting in a runoff election or specifying how to fill vacant senate seats by special election rather than appointment. a decision from the court enforcing this extreme version of the doctrine would be highly destabilizing since all these rules could no longer be applied to federal elections after the legislation. the less extreme version of such a doctrine would be the state courts can enforce state constitutional provisions that are specific such as the provision stating senate vacancies must be filled special election but cannot support more general state constitutional provisions such as those that protect the right to vote or guaranteed a free and fair
elections. this would be less extreme but would trigger a whole host of ambiguous questions that would be difficult to resolve in a consistent way. just how specific does the state constitutional provision have to be for state court to be able to enforce it. a third version will focus not only on state constitution but the more routine act of state election administration for judicial interpretation of state election law. in this version the u.s. constitution would be violated for being straying too far from the state election laws applying them. the practical consequence of this version would be it could potentially turn many issues of election administration and interpretation to federal question which candidates and voters will try to exploit by running for federal courts to second-guess these judgments. let me very briefly turned to
the issue of what the historical basis is if any for the independent state legislature theory in these versions. i will focus on the state constitutional provision question. scholars agree there is no evidence the framers expressly understood the constitution to create such a doctrine. what we have in the end -- is the evidence of the opposite. in the founding era imposed restraints on such legislation. before the civil war, scholars only uncovered one mention, a nod a court decision of such doctrine. until the 2000 bush be -- bush v gore decision there has been no precedent which acknowledged any version of this doctrine. there is a scholarly debate over whether a few state supreme court's in the civil war era and a congressional resolution of contested elections recognized such a doctrine. but even if those pieces of
evidence support the doctrine, the overwhelming weight of the practice issues the state constitution thought american history have some restraint for national elections and in some the practical consequences should the court recognize the doctrine are potentially quite destabilizing especially depending on which version the court recognizes. there's minimal historical support for such a doctrine.
>> which gives state legislatures the authority to regulate federal elections means when legislatures do so with their own state constitutions require or prohibit does not matter. nothing in the clauses compels that reading. and at least equally natural reading recognizes legislatures are creatures of the constitution and so may make laws only as allowed by them. historical understanding and practice overwhelmingly supports this latter view. a few highlights. from the time of the founding state constitutions of regulated federal elections. between 1789 and 1803, at least six state constitutions regulated whether elections should be by ballot or by voice vote was extremely controversial at the time. those provisions were understood to apply to federal as well as state elections.
some early state constitutions explicitly regulated federal elections. the delaware constitution of 1792 for example expressly regulated the election of congressional representatives. in addition, the overwhelming majority of state courts considered state constitutional challenges with state laws regulating federal elections have applied their constitution. congress has deferred to state constitutions when serving as the judge of its own elections. isl t proponents point to a handful of state supreme court cases declining to apply state constitutional provisions to laws governing federal elections and to single contested election in the house of representatives in 1866. but those examples are at most outliers in a long swath of historical practice pointing in the other direction. and almost none of them unambiguously rely on the isl t.
there is also absolutely no historical evidence supporting the more extreme version. for example, the notion federal court can second-guess state courts interpretation of their own laws seems to first appeared when chief got -- chief justice rehnquist where it is presented in a false statement without citation. i turned out to the implications of the islt. it would be extraordinary destabilizing. most state election laws apply without distinction to federal and state elections. states generally have one voter registration system for example. if the state court strikes down some aspect of those laws as violating the state constitution, it might require the laws nonetheless remain in effect for federal elections depending on the specific provisions, this would be at best confusing and unwieldy, at
worst impossible. the same is true for statutory destruction. it might require a different interpretation of the same statute to apply to federal elections and to state elections. the islt would disrupt and undermine state election administration. espied rhetoric supporters use promising and promotes protect ability, it throws out centuries of state court precedent interpreting and applying state constitution including for example precedent establishing double approaches to the constitutional guarantees to free or equal elections that appear in more than half of state constitutions and have a history dating back to the founding era. the islt rejects the long-standing jurisprudence on statutory interpretation and might require ignoring precedent with identical statutory language. likewise despite rhetoric supporters use promising the
islt promotes political accountability, by undermining expectations and long-standing practice, it makes it harder for voters to know what their legislatures have done. by turning every question about state election law into a federal constitutional question, it switches decision-making about the state of election law away from state courts and election administrators and to the federal court, especially the supreme court. if nothing else, the islt will promote on ending election litigation, bringing uncertainty and disruption. congress has the power to avert many of the worst implications of the islt as well as to protect democracy in other ways and i urge you to use that power. >> finally we will hear from miss becker's. >> members of the committee, thank you for the opportunity to
testify about this dangerous and unprecedented legal claim being pressed by conservative activists. the supreme court agreed to hear more versus harper, a case in which some north carolina legislators have asked the court to embrace the so-called independent state legislature notion. this is the radical claim, positing the con -- constitution removes the concert shall check on state legislatures when they regulate federal elections. you heard the claim is wrong, the constitutional text in american history, supreme court precedent, sound policy and common sense all diffuse the notion. i'll focus on the consequences for american voters under multiracial democracy if this ream court turns this fringe notion into law. here are four examples of what this idea could allow. first, the notion greenlight partisan gerrymandering for congressional elections. a state legislature could draw
an extreme partisan gerrymander without consequence. something the state court would otherwise strike down is illegal under the state constitution. that is just as backwards as it sounds. state lawmakers could violate their own constitution. redistricting commissions and up to nine states would become defunct and fair representation could become more difficult if impossible. the supreme court already took federal constitutional protections off the table, ruling in the case the federal courts cannot stop partisan gerrymandering. the court pointed to state courts is the answer but if state courts can't stop partisan gerrymandering it will ride. the radical claim or remove constraints on voter suppression. a legislature could eliminate early voting even if it is articulated in the state constitution and adopted by the people who direct democracy. the governor would be unable to stop the decision and a state court would be powerless to stop it as well.
voters can bring their case to federal court but the supreme court has gutted the most powerful provision of the voting rights act and undercut other federal voter protection. third, the notion would create election chaos, disenfranchising voters an overwhelming election officials. the claim would undo hundreds of election laws in state constitutions enacted by ballot initiatives and implemented through administrative rule. policies enacted through direct democracy like mail-in voting, a same-day registration and even voter id could be wiped off the books for federal elections. voters could be blocked from voting for candidates for federal office even if they are eligible and properly registered to vote. a range of other policies established in state constitutions rather than legislation would be voided. the right to cast a secret ballot for example is established in 44 state constitutions. election officials would be forced to administer a two tier
complex system with different policies for state and federal elections. it would be unclear which rules apply. if election officials don't know what the law is, voters surely won't. fourth, the notion would remove critical checks against election interference. the radical idea could enable legislatures to manipulate election outcomes. they could enact arbitrary rules for counting votes per the claim would invite legal challenges asking federal courts to throw out ballots cast in reliance on constitutional provisions long enacted by ballot initiatives or policies by election officials. to be clear, the independent state legislature claim is not a license to coup, a federal law prohibits state legislatures from overturning the results of elections. the notion would open the door to antidemocratic shenanigans and even failed efforts to many delayed our elections erodes
trust and ultimately participate desperate's patient in our democracy. even if the court embraces this radical notion, congress can thwart any of its force consequences. the very same constitutional provision activists are trying to weaponize against democracy gives congress the power to enhance and protect voting rights and ensure fair representation. regardless of how the court rules, i urge you to revisit and pass the freedom to vote john lewis act. it would set national standards for voting access, prohibit partisan gerrymandering and federal protections against election interference and sabotage. this legislation is critically needed. thank you. >> thank you very much and thank you to each of our witnesses for their testimony. we are at the time in the hearing where members may ask questions of our witnesses for as much as five minutes and i would turn first to the gentleman from georgia for his questions. >> thank you madam chair.
a pleasure to be with you today and thank you to our witnesses for being here. i was intrigued with the testimony there. especially with the extreme islt theories people are putting out there. i am proud to join with ranking member davis and my good friend mr. style and several others on a bill we are pushing forward, the american confidence elections act that takes meaningful steps to secure our election while still respecting the federalist principles that our framers put into the constitution. as we discussed this isl theory, i think we should keep in mind the versions we have heard today , including very extreme version of this theory, i don't want to jump to conclusions the supreme
court would embrace an extreme version of this. just as the u.s. constitution is a restriction on the power the federal government including a restriction on the legislature, state constitutions are restrictions on the state power including their legislatures and those constitutions exist for a purpose. i agree wholly that the legislature cannot override their constitution without some amendments to that constitution. a lot of what i've heard here explained today ironically sounds a lot about the arguments that our side made against the attempts for a federal takeover of state elections by hr one for my colleagues on the other sadly i'll. -- other side of the aisle. i think the more extreme version we should not just assume the supreme court is going to agree with that. i have a few questions though. when the framers penned the elections clause in article one
section four, what did they understand the term legislature to mean? i know from reading federalist papers and writings of our framers and founders they chose their words very carefully for specific meaning. what do you understand the term legislature meant to them when they framed the constitution? >> thank you for the question. i've had the pleasure of looking through this historical record looking at the debate during the constitutional convention on the elections clause and the ratification debate in every state when they were discussing the elections clause. what is clear is the framers were trying to constrain the power of state legislatures. they wanted to make sure that these state lawmakers, who they deeply distrusted, would not have exclusive power to regulate federal elections. that's why the second part of the elections clause is congress the power to make or alter
federal election law. it is therefore absurd and sort of directly contrary to the historical record to think that those very same framers would have given to the legislature alone in a state of the power to regulate federal elections without the normal -- in line >> if i could get you to narrow down, what does the term legislature mean? we have a different interpretation from studying the founding era. what i read is during the debate they mostly distrusted the government they were creating. most of them came from state legislatures so they were more concerned with the power of the federal government overstep -- overriding state legislatures. i'm not defending the isl theory. the question is what did they mean in article one section four of the term legislature. >> i appreciate your question. i think we have a different reading of the historical record but nevertheless, the one thing i think that's constructive in understanding what the framers meant when they use the word legislature is what they meant
when they use the word congress and the other part of the elections clause. nobody understands that it gives the congress to enact laws that don't need to be sent to the president for his signature or veto. nobody understands that part of the elections clause to give congress the power to enact laws the federal courts can adjudicate. the same is true for the first part of the elections clause. >> i still don't know that we got the answer about what legislature means. one of the things that the framers did is they want to make sure the future generations understood the meaning that they put in the document itself for future generations because we have an evolution of language. merriam-webster worked with them to create the first dictionary of american english language, the webster's dictionary which was to help future generations of americans interpret. the term legislature in that document as he is saying our
founders intended to mean is the body of persons in the state invested with the power to make and repeal laws. he then goes on and explains what the state legislatures mean each of those elected bodies within the state with the power to pass and repeal laws as constrained by the constitution. i'm sorry wasn't able to get to other questions. i think we need to make sure that if we are interpreting legislature one way, it needs to be consistently turn interpreted throughout the entire document of the constitution not being able to use one interpretation for one article and clause. with that i yield back. >> mr. raskin is recognized. >> thank you for calling this hearing. forgive me i don't have my
glasses on at this time. i want to go right to that point you were making before. for the elections clause, it is set up it seems purposefully to create congress as a backstop for the state legislature, to make sure congress could regulate time, place, manner of elections and so on. over the states if necessary. did that give congress the power or the right to do that outside of a presidential signature on bills they are passing outside of judicial review. is there an independent congress doctrine as well? >> thank you for the question. of course there is no independent congress doctrine. the framers viewed congress and use the word legislature in context in the context of the checks and balances that apply to state legislatures and congress. >> so in other words if we were
to exercise our power under the elections clause to legislate the voting rights act for example. when it was passed by congress it still needed to be signed by the president even though it said congress has the power to do it. and so similarly state legislatures passing election laws have always send those bills to their governor under their state constitutions for signatures. >> yes. >> so the independent state legislature doctrine would suddenly announce that more than two centuries of state election laws are somehow unconstitutional or at least went through an unnecessary step being signed by the governor and operating under state veto
requirements and so on. >> this theory, if it were embraced would nullify hundreds of election laws that it been in place for many years and in some cases centuries. as my colleagues have reflected, state constitutions were adopted around the time of the ratification of the constitution that themselves constrain state legislatures. everyone understood at the time that state legislatures are creatures of their own constitution and are constrained by them including gubernatorial veto and judicial review. >> but there are some places in the constitution with the legislature does operate independently as opposed to in this normal legislative capacity. are there not? >> there are certain instances. >> what are examples of that. >> the legislature act separately -- independently when it is being asked to ratify a federal constitutional amendment or during times when senators
were directly chosen, appointed by state legislatures. before the 17th amendment. they acted independently. the constitution uses different verbs to describe with the legislatures do in those contexts. as opposed to saying direct for example, as the electors clause uses for a point, the constitution referred to before the 17th amendment with respect to the appointment of senators. so the word legislature has to be understood in the context of precisely what it is, that the legislature is being asked to do are authorized to do by the constitution. >> professor if you are still out there, i would like to ask you about that point. the claim seems to be made now that if the state legislatures
can act independently for any specific congressional purpose they must be able to act independently for all constitutional purposes including the primary purpose of ordinary lawmaking. is that right? you need to unmute. >> we can hear you now. >> sorry about that. i think your statement is correct because if you take congress. when congress holds its constitutional amendments they do not have to present those to the president. the bill of rights was not resented to the president before it was adopted or sent out to the states to be ratified. that's an example in the federal context. congress when it exercises powers to regulate federal elections doesn't have to present a bill to the president. i think that's a very good
example for the federal context. justice ginsburg opinion does acknowledge that before the 17th amendment, state legislators might've been independent in their role as electors but not in their role of regulating ordinary lawmaking. >> the gentleman's time has expired. we turn to mr. stiles for his question brian >> i appreciate you hold -- question. >> thank you for holding this hearing. the importance of making sure our elections are free, fair and secure. and note that i am proud to join the ranking member mr. davis and my colleague to my right in introducing the aid act to inspire voter confidence in the lectern at every -- election integrity. one that i would encourage folks to look into. i would like to direct my questions on today's topic if i can, we have heard testimony
today from witnesses say that the independent state legislature theory is one that could impact our elections process. i would like to start by asking you if there is any specific legal precedent affirming legislators do not have the absolute power in elections. what have the courts held on this issue? >> the courts have always applied the constitution to assess state election law, the courts have never second-guess the interpretation of state election laws through the federal constitution, we didn't get any indication of that. no federal court has ever adopted doctrine up to this point. just a few opinions, statements. >> they have never held it, have
they ever held against the independent state legislature theory? >> i don't think the issue as far as i know was ever presented to federal courts before it was raised in two thousand. so the practice has been to not apply. >> understood, but never ruled on. helpful for us to understand the topic. i want to walk through a couple of implications here. how would independent state legislature theory impact states that have independent redistricting commissions? we heard a previous witness reference the impact it may have. >> the supreme court has a ready upheld the power of voters through voter initiatives to create for congressional redistricting. there is been discussion about how valid the precedent will remain that is certainly the precedent there. >> how would islt impact the
states election certification process? >> it depends on exactly which version we are talking about. certification is primarily administration, interpretation. it would only be impacted if the supreme court were to conclude that there is a federal role in second-guessing the applications and interpretation of state law. >> how would it impact state constitutional amendments that would be approved by the voters through a ballot measure? >> the first answer is state constitutional provisions are off the table altogether and those would fall along with general state constitution. maybe there is an attraction among some to a doctrine that state constitution is fine but not voter initiated amendments. but i'm not sure exactly how one
would defend that distinction. >> i appreciate your insights today. i will yield back. >> mr. butterfield is recognized. >> thank you madam chair for convening this hearing. thank you to the witnesses for your testimony. i represent one of 13 districts in north carolina and is all of you know, the case originated in my state as well as the moore v. hopper case. i am concerned about this. some years ago we challenged the congressional map on the basis of partisan gerrymandering, took the case to federal court in the lower federal courts ruled in our favor and ruled state legislatures engage in partisan gerrymandering and it was a violation of the federal constitution in that case was taken to the u.s. supreme court and unfortunately the high court decided that political
gerrymandering is not protected for the federal constitution. but in that opinion, the court suggested it may be permissible under the state constitution but not the federal constitution. as the years went on that's when the case came along and so we decided to do with the supreme court is suggesting. we litigated the redistricting map in state court and again we prevailed in state court. the state supreme court ruled that the congressional map was an extreme intentional partisan gerrymander directed the legislature to fix it and the legislature had to follow the directive of the court. now we have a new map, it's a fairer map than it was originally. but the plaintiffs in the case have now or lease the defendants in the case have now taken the matter to the u.s. supreme court and now the supreme court is
going to have to decide whether or not state courts have any authority whatsoever over election laws within the state. so i guess my question is professor, i guess you are still with us online. are we overreacting or is it likelier that the supreme court will decide that state legislatures can enact election laws and denies state courts the authority to make the constitutional ruling? are we overreacting or is this real? >> representative butterfield let me start by saying i've been writing about north carolina redistricting since the early 1990's. and i was part of the legal team representing in the case you described. i think all these questions indicated it's very difficult to
say because there are a variety of versions of the doctrine that been hinted at in somewhat have extremely destabilizing consequences to be sure. most of them would have significantly destabilizing consequences and there are lots of legal uncertainties that would be unleashed under any version of this doctrine. so i do think it's a concern about what the doctrine might be if such a doctrine is endorsed by the court. exactly how destabilizing it would be or how much litigation is unleashed, there is no question candidates and voters will run to federal court to try and over stern -- overturn interpretations. there's a lot of uncertainty here. >> so you're saying you really believe that the u.s. supreme court will decide that state courts do not have the authority
to interpret and enforce the state constitution? you really believe the u.s. supreme court will go that far? >> i am knocking to make any predictions here, what i can tell you that justices alito and thomas at the least have signaled that they are very disturbed in the context of pennsylvania state court constitutional rulings about state election law. so there is no question that that is a an issue before the court and there are some indications that at least some justices are prepared to discuss what to do. >> thank you madam chair, i yield back. >> mr. agee lahr is recognized. -- agee lahr -- aguilar. rep. aguilar: that was cited as part of the creation of fake
electors. it would be submitted to congress to get that then vice president to send the results back to the states to prevent certification. can you tell us how this theory informed the strategy that ended up being used by these individuals, john eastman and others to undermine the entry cast ballots of hunt -- of americans. >> independent state legislature notion if adopted would not let state legislatures send a fake slate of electors to congress to be certified. as i said, the theory is not a license to coup, but you are correct that president trump relied on the theory in challenging policies that were in place in states across the country trying to get ballots thrown out of it were cast in reliance on policies adopted by secretaries of state or governors for example.
so this notion would be the legal backbone that informs this effort to overturn the will of voters. rep. aguilar: if the supreme court gives credence to extreme versions of this theory is there are scenarios where alternate slates are submitted and the president who fails to win 270 electoral votes could be certified as president? >> as i said, the theory would not permit that kind of scenario, but it does open the door to efforts by state legislatures to attempt those kinds of antidemocratic shenanigans. federal law would prohibit that from happening, but legislatures might try to change the rules for vote counting for example or it might try to institute sham audits to affect the results of elections. so there are other ways legislatures i try to interfere with elections even beyond those
fake electors and that strategy. rep. aguilar: thank you. professorship hero, we talk in this committee room about our local officials, election administrators, many of them who are struggling with resource issues and some of them have received threats over the past few election cycles as well. can you describe what could happen to communities of color if basic and essential voting rights legislations are gutted in response -- regular gutted in response. that some of those local election officials might struggle based on the interpretation of these theories? prof. shapiro: every decision a local election official makes that involves discretion could be second-guessed and litigated in federal court. even where those particular
decisions have been affirmed or ratified by state court. in pennsylvania in 20 there was litigation about whether or not county clerks could have drop boxes and voters could put their mail-in ballots in. the pennsylvania supreme court concluded the statute should be interpreted to allow those drop boxes at the discretion of local officials. under the islt or at least the extreme theory -- extreme versions of it, the federal courts would be able to come in and revisit that essentially say that that's not how they read the statute even though under normal circumstances, state courts have the final say over what state statutes mean. discretion is delegated to election officials so they can actually do their job. rep. aguilar: what could this
mean to communities of color? prof. shapiro: to the extent communities of color are already in underserved areas of five population density, there may be more need in those contexts for election officials to try and find ways to ensure everyone has the right to vote. they may need to exercise discretion in ways that perhaps a small rural county that predominantly white, the same issues simply don't arise and so the need to exercise discretion in particular ways might not be there. it also opens the door for this kind of litigation that essentially will be incredibly resource intensive. anytime somebody doesn't agree with a particular discussion or decision or even strategically beneficial to challenge a particular decision which will deter officials from making
those kinds of decisions. rep. aguilar: i yield back. chr. lofgren: i have just a couple of questions. article one says the times, places and manners will be in each state. every state has decided to have elections, all 50 states decided they're going to decide this by the vote. some have suggested that if you took the extreme independent legislature theory to the maximum amount, that it could empower state legislatures to essentially decide otherwise. you have a vote, you don't like the result, the legislature appoints who they want.
so professor, i would like you to comment on that assertion and some state legislatures did indeed suggest that during the last presidential election. and your comment, whether reform of the electoral count act could play a role in remedying such a threat to the right of americans to select their government? >> thank you for the question. so first, even as things stand today, congress decides the data on which electors have to be appointed, that's a constitutional power congress has. it means the state legislatures cannot after election day suddenly decide we don't like the popular vote we will appoint the electors prayed that is unconstitutional. the electoral count act reform, the bipartisan bill that was publicly introduced would help solidify that structure by
making it clear in ways that i think is already in the original act, this would make it much more clear that states have to act pursuant to laws established in advance of the election. that's what we all want, clear rules established in advance of the election cannot be manipulated after the fact for one partisan purpose or another. so i think the bill introduced would help secure the process. chr. lofgren: we have been working on a bill as well that is not quite done but should be introduced in the next couple of weeks. and we will be discussing with our senate counterparts how to reach consensus. i'm sure we will come to a meeting of the minds in a very cordial way. here is a question for anyone. i often thought it was something -- some of the rhetoric that was pursued of the state legislatures would simply send
in their own electoral slate despite what the vote had been in their state, with the role of article four section four has in such a decision. united states guarantees that every state in this union a republican form of government. and that it would seem to me does not include a state legislature throwing out the votes of its voters and imposing its own decision instead. does anyone have a comment on that? >> i would agree with my colleagues that the state legislatures under the constitution cannot after the fact change the rules about how electors are chosen. independent state legislature theory might allow them to put rules in place before the election that say for example take away from the court the
ability to adjudicate issues about the election after the fact and give the power to determine election contests to legislature itself. you are asking if that might violate the guarantee clause prayed that has been held to be nonjudicial -- justiciable. it provides congress the ability to regulate how these types of decisions are made. i think it would be well within congressional power to say the guarantee clause requires. chr. lofgren: my question is when the court looks at this in the whole context of the constitution, to elevate state legislators without looking at a framework that is a republican form of government would be in consensus with that section of the constitution. >> i think it would be inconsistent but the court has not shown itself to be interested in looking to the guaranteed clause when it
interprets other relevant clauses. just to reiterate, you do have the power to rely on the guarantee clause. chr. lofgren: i will turn the gavel over to mr. raskin to recognize our new member. rep. raskin: thank you madam chair. i recognize the gentle from pennsylvania. >> i've gotten a lot of questions from constituents of the last few weeks in the wake of the review for the case raising this theory. i am trying to explain to constituents even as i look into it further. we do that in pennsylvania through the lens of what been going on for the last few years
in pennsylvania. we have had statutory gerrymandering, have had strict voter id laws, that it been pushed back through litigation and then during the 2020 election we found our results under attack without basis, but nevertheless under attack through variety of court cases. dozens of them in fact. can you, i think you raise in your testimony, can you talk about the impact of that theory and what we need to be concerned about? prof. shapiro: you need to be concerned about among other things all of these decisions that the state courts have made and all of the precedent that exists that the state courts rely on and the legislature relies on, whether or not those will continue to be effective with respect to federal elections. you need to be concerned about whether the rules might be
different for federal elections versus state elections regardless of whether or not the legislature actually passes different laws. because they might be interpreted differently or the extent the state court strikes down aspects of the laws with respect to the federal courts might say they still might be affected with respect to federal elections. there could be in a normative amount of chaos to put it mildly. rep. scanlon: that's been one of the problems to address is there has been chaos with changing rules impacting the electorate and people not being certain of what's going forward. that damages or institutions in general. do you have recommendations on what we should do as congress to protect the right to vote in light of the kind of things we've seen in pennsylvania? prof. shapiro: with respect to the islt, congress could pass a law that says with respect to
state laws governing federal elections, it -- if the presumption is the actual rule is we necessarily incorporate state constitutional provisions and all manner of ordinary judicial review, etc.. you could pass a law that looks at the timing under which federal courts can intervene. especially after a state court has already ruled on a particular issue. you can also address other issues, address extreme partisan gerrymandering and you can do that with respect to state legislator offices in my view under the guarantee clause. rep. scanlon: we hear a lot of arguments about the elections laws -- clause and whether or not congress has the power to address what is happening in our elections in the state, can you just summarize that quickly. prof. shapiro: there's no
question congress has the power to address congressional elections under article one section four, it expressly gives congress the power to do so. congress has the power under the guarantee clause to guarantee a republican form of government has the obligation to do so. there is nothing in the constitution that suggests that the federal government cannot ensure that states operate federal elections properly but it is congress that has that power, not the federal courts taking away. rep. scanlon: thank you and i would defer to our constitutional expert but i believe my recollection is that it was some kind of misconduct in south carolina that led the framers of the constitution to insert that clause. >> i will take your word for it. i know the powers there and the purpose is clear. i'm going to ask a few more questions.
the gentlelady yields back. under the extreme versions of this independent state legislature hypothesis, and i have not read the literature about it and would be interesting to know if there is a law review corpus around this, but are they asserting that a legislature could actually enact legislative changes, say repealing vote by mail or adopting vote by mail or moving to instant runoff voting or overthrowing instant runoff voting without sending the legislation to the governor of the state under the constitution? >> thank you for the question that will first note that there is a wealth of scholarship rebutting this theory. there is lots of evidence -- no >> is there anything on the
others? is it just an idea that popped up in the supreme court but there's no support for it historically or academically? >> there is no serious evidence on the others. there's no support historically, no support legally, the supreme court has repeatedly rejected this idea in precedent after precedent. >> as recently as the arizona case. >> in 2015 they rejected this theory out right. >> is someone claiming somewhere that a legislature could actually adopt election laws without sending it to the governor of the state under the state constitution? >> that is the logical extension of the theory. the notion that it's the legislature alone outside of the ordinary lawmaking process and without the ordinary checks and balances that apply to the state lawmaking body, that is the premise of this independent
state legislature notion. it's just as radical and shocking as you suggest. >> professor shapiro you mention something in passing that caught my attention. you set under the doctrine a state legislature could divest the courts of the ability to review the election laws they are adopting. are you saying that the turbocharged version of independent state legislature theory would actually allow them to say we are carving out an exception to marbury versus madison and there wouldn't even be federal constitutional review? prof. shapiro: i do not think the state legislature can prevent federal constitutional review, but it certainly could under the theory, the turbocharged version, prevent state courts. >> it sounds like it doesn't even have to, in fact it couldn't do it even if it wanted to, right? if the legislature said and we
will leave this up to an administrative agency to interpret the particular times or placements of voting precincts or what have you, they couldn't do that. >> under some versions of the theory. just as gorsuch suggested he might be open to that in his opinion in one of the north carolina cases in 2020. >> the legislature of the state under this more expansive notion must act as a legislature and administrative agency and as its own court interpreting the state constitution or the state constitution may be completely relevant -- irrelevant here. as if they're saying the state legislature acts in a different capacity and exists as a different kind of beast when it governs election law. and state election law -- and state constitutional law is irrelevant. am i over reading that? >> that's exactly right for the
logical extension of the theory is there is no separation of powers, the judiciary does not get to say what the law is, of the constitution has no bearing on what the legislature can do, nor does the governor but only in the instance of regulating federal elections. and it makes no sense. >> i just want to say it seems to me given that there is no historical basis for this, given that there is no real academic support for it, it seems like there is an effort to spot places that benefit a particular political destination or program and then say we are in control there, let's dramatically inflate the power of that office or person. sort of like what happened on january 6 where it was the vice president has the power to count electoral college votes and unilaterally without congress being involved reject electoral college votes and determine who's going to be president.
and there was never any basis for that. no one ever claimed it. no one would've mode notes differ more than two centuries. senatorial congressional practice. and yet that was a claim being made. it was a coup in search of legal theory as judge carter said. i'm afraid this is a little bit of a political fix in search of a legal theory. >> let's dive back in. you gave testimony regarding independent state legislative theory claiming that the theory if adopted by the courts would deprive voter of free and fair elections and you pivoted to january 6 in the fact states have enacted various election reform measures. can you confirm, would your
position be on the same for democratic-controlled states often with vetoproof legislators like illinois or maryland? >> thank you for the question paired what i think you are pointing out here is the independent state legislature theory is bad for americans to matter what side of the aisle you are on. it would remove -- no >> is that your position? >> absolutely. >> you also mentioned that if isl was adopted for legal doctrine of state legislatures would not have a check and balance on their powers, is that a fair analysis of the statement? >> this notion removes checks and balances that applied to state legislatures. >> do voters play powerful check since they are the ones who elect them? >> absolutely and that's why it's so concerning that he could remove the power of voters to enact laws through direct democracy. >> i appreciate your comments. i yield back. >> thank you very much.
did you have any further questions ms. scanlan? in that event we will come to a close here. i think that all of our expert witnesses have demonstrated that there is no foundation in the text of the constitution, in the structure of our constitutional system, in the history for the practice of elections for this radical and brazen claim. i'm glad we seem to have some kind of bipartisan agreement about the strangeness of this doctrine. i want to thank all the witnesses for their valuable testimony and i want to thank the members for their excellent questions today. members might have additional questions going forward, we will ask you to respond in writing if you would. the hearing record will be held open for those responses. without objection the committee now stands adjourned.
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