The U.S. Supreme Court recently heard a case that could change the future of all U.S. elections. The case, Moore v. Harper, could completely change who is responsible for election rules and allow state legislatures total control of all future elections. The case deals with the independent state legislature theory.
Paul Nolette, the department chair of political science at Marquette University, describes the "independent state legislature" theory as a particular interpretation of Article 1 of the U.S. Constitution that dictates who has the power to determine the time, place, and manner of holding elections for office. Under this philosophy, not only would state legislatures have the ability to make those determinations, but it would also grant state legislatures the exclusive rights to do so. Other branches of government would not be able to interfere with the legislature's decisions or procedures.
The state legislatures exercising these rights would not be limited to local or state elections, but would also extend to federal elections.
Nollette explains the U.S. government is different from most other governments around the world, in that states are in charge of both state and federal elections. "In most countries, it's the federal government that controls federal elections. But here [in the U.S.] it's the states. But this strong version of the theory absolutely would make it much easier for state legislators to be largely or almost completely unchecked," says Nolette.
Some observers believe the U.S. Supreme Court is unlikely to accept the strongest version of the "independent state legislature" theory, but Nolette says the theory does have support among some justices.
"Particularly the most conservative justices on the Supreme Court have shown some sympathy to this idea of the 'independent state legislature' theory in other cases," he says. "Even though it takes five, typically, to get a majority on the court, it only takes four to actually hear a case. So, at least four justices were interested enough to hear this piece in the first place."
It is unlikely that a final decision will be made prior to the Wisconsin State Supreme Court race takes place, which could make issues like political gerrymandering a centerpiece of the race. Nolette believes the final decision will be made in June when the U.S. Supreme Court's term ends.
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