Kagan Cuts Through Weeds With Consequences Of Independent State Legislature Theory

Justice Elena Kagan. TPM Illustration/Getty Image
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As the Supreme Court confronted the independent state legislature theory on Wednesday, much of the discussion centered on parsing the Constitution, leafing through historical evidence and arguing over the meaning of old cases. 

But Justice Elena Kagan paused the proceedings for a few minutes, expanding on what it would actually mean if state legislatures were allowed to become the only entities empowered to control federal elections, to the exclusion of state courts and state constitutions. It’s a role she’s been stepping into during arguments of late, taking the cases out of legal abstraction to articulate the full scope of the possible harms.

“I’d like to step back a bit and just think about consequences, because this is a theory with big consequences,” Kagan said. 

She then reeled off a list: a legislature could engage in the “most extreme forms of gerrymandering” and there’d be no remedy, even if state courts found that the maps violate their constitutions; legislatures could pass endless voter restrictions without fear of a check; they could strip voter protections; they could even, she pointedly added in a seeming allusion to Donald Trump’s fake electors scheme, insert themselves into the process of certifying elections. 

“You might think that it gets rid of all those checks and balances at exactly the time when they are needed most,” Kagan said. “Because legislators, we all know, have their own self interest: they want to get reelected. So there are countless times when they have incentives to suppress votes, to dilute votes, to negate votes — to prevent voters from having true access and true opportunity to engage the political process.”

Kagan highlighted a truth that has been buried in assertions by the proponents of the ISLT that the state legislatures are closer and more connected to the people than other branches, vesting them with more trustworthiness. In addition to the frequent incentives for legislators to use laws and restrictions to pick their voters rather than the other way around, many legislatures are so egregiously gerrymandered that they are, most often, far to the right of the constituents who elected them. 

Justice Samuel Alito seemed to take a shot back at Kagan later in the proceedings. 

“There’s been a lot of talk about the impact of this decision on democracy,” Alito said, his voice dripping with sarcasm. “Do you think it furthers democracy to transfer the political controversy about redistricting from the legislature to elected Supreme Courts where the candidates are permitted by state law to campaign on the issue of redistricting?” 

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