The independent state legislature doctrine could reverse 200 years of progress and take power away from the people

In a case to be heard in the coming months, the U.S. Supreme Court could decide that state legislatures have control over congressional elections, including the ability to draw voting districts for partisan political advantage, unconstrained by state law or state constitutions.

At issue is a legal theory called the “independent state legislature doctrine,” which is posed through the court’s consideration of a dispute over gerrymandered North Carolina congressional districts. In early 2022, North Carolina state courts found the legislature violated the state constitution when it drew gerrymandered congressional districts favoring Republicans. The legislature has claimed that the U.S. Constitution gives it authority, unfettered by state courts’ interpretation of the state constitution or laws, to regulate congressional elections, and is asking the Supreme Court to agree.

If the court agrees, it could free state legislatures to take power away from voters – “We the People” in constitutional parlance – and reverse a two-century trend toward expanding the power of the people in congressional elections.

Some election and constitutional law analysts have already suggested that state legislatures may have similar power over presidential elections. The U.S. Constitution allows state legislatures to determine how a state chooses its presidential electors, arguably leaving the legislature free to choose presidential electors on their own without a popular election.

Power of the people in early America

The people wielded little power in congressional elections at America’s founding.

The unamended Constitution required United States senators be chosen directly by their state legislatures, not by voters directly. That was the case until the 17th Amendment was ratified in 1913, which requires U.S. senators to be elected by the people.

The Constitution has always required United States representatives be chosen by the people, but who could vote was severely limited.

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