The Independent Legislator Theory

Roger Berkowitz
Zach Montellaro looks at a theory increasingly embraced by Republican state legislators and four Supreme Court Justices that would allow state legislatures to have near absolute authority to determine which candidate for President to award that states’ electoral votes. Montellaro writes:

A legal argument lurking in two Supreme Court cases could give Republican legislators in battleground states sweeping control over election procedures, with ramifications that could include power over how states select presidential electors.
Republicans from Pennsylvania and North Carolina challenged court-ordered redistricting plans in their states based on the “independent legislature” theory. It’s a reading of the Constitution, stemming from the 2000 election recount in Florida, that argues legislators have ultimate power over elections in their states and that state courts have a limited ability — or even none at all — to check it.
The Supreme Court turned away the GOP redistricting challenges on Monday, largely on procedural grounds. But at least four justices embraced the “independent legislature” theory to some degree, which would consolidate power over election administration in key states with GOP-dominated state legislatures, from the ability to draw district lines unchallenged to passing new restrictions on voting. Taken to its extreme, some proponents of the theory argue it would give legislators power to override the choice of presidential electors after voting in their states.