• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • AMERICAN DEMOCRACY
  • WORLD DEMOCRACY
  • POLITICAL ART
  • more
    • election technology
    • money politics
    • political dissidents
    • THIRD PARTY
      • third party central
      • green party
      • justice party
      • libertarian party
    • voting methods
  • DC INFO
    • author central
    • about
    • advertise with DC
    • contact
    • privacy policy

Democracy Chronicles

The “Independent” State Legislature In Republican Theory

by DC Editors - September 23, 2022

FacebookTweetLinkedInPin

The “Independent” State Legislature In Republican TheoryThis study is by Franita Tolson. Here is the abstract:

The independent state legislature theory provides that state legislatures are not constrained by their respective state constitutions in exercising the authority that the U.S. Constitution delegates to states over federal elections. In its most extreme form, the doctrine permits state legislatures, in overseeing the mechanics of federal elections, to disregard state court interpretations of state constitutions. Scholars have offered a number of criticisms of this doctrine, noting that it runs counter to the founding generation’s concerns about the lawlessness of state legislatures; is contrary to historical practice at the founding; and undermines the constitutional structure in which the more democratically accountable Congress, rather than the states, is vested with final say over federal elections.

This Essay, forthcoming in a special Texas A&M Law Review symposium issue celebrating Professor Richard Epstein, contributes to this growing literature by pointing to the constraints, centered in the constitutional text and history, that limit the ability of legislatures to disregard their state constitutions. Specifically, the Electors Clause of Article II, Section 1 provides that, “Each state shall appoint, in such manner as the legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the state may be entitled in the Congress…” This text explicitly raises the question of who is the “state” on behalf of which the legislature deploys power?

Using this language as its jumping off point, this Essay argues that the “state” referenced in Article II, Section 1 refers to its citizens, whose preferences are conveyed to the state legislature through the state’s electorate and in the state constitution. Within a decade of the founding, the selection of officials by the state’s electorate became central to the theory of republicanism underlying the Guarantee Clause of Article IV, which predicated the legitimacy of government on majority support. By the adoption of the Twelfth Amendment, which changed the structure of presidential elections, political elites viewed republican government as requiring that state legislatures and, to a lesser extent, federal officials, be accountable to the people who elected them, accountability that prevented state legislatures from exercising their authority over federal elections in blatant disregard of the people’s wishes.

The Essay concludes that the independent state legislature theory, particularly in its strongest iteration, runs counter to the democratizing effect that the Twelfth Amendment was intended to have on presidential elections. The theory allows the state legislature to disregard the preferences of the people at a juncture in which they are exercising the oversight and accountability at the core of our system of republicanism: during the election of federal officials. Any version of the doctrine, if adopted, has to respect majoritarian preferences.

Visit the article information page here.

FacebookTweetLinkedInPin

Filed Under: Democracy in America Tagged With: Election Methods, Supreme Court, Voter Access

About DC Editors

We are your source for news on the all important effort to establish and strengthen democracy across the globe. Our international team with dozens of independent authors are your gateway into the raging struggle for free and fair elections on every continent with a focus on election reform in the United States. See our Facebook Page and also follow us on Twitter @demchron.

Some highlighted Democracy Chronicles topics

Africa American Corruption American Local Elections American State Elections Asia Capitalism and Big Business Celebrity Politics China Democracy Charity Democracy Protests Democrats Dictatorships Education Election History Election Methods Election Security Election Transparency Europe Internet and Democracy Journalism and Free Speech Middle East Minority Voting Rights Money Politics New York City and State Elections Political Artwork Political Dissidents Political Lobbying Redistricting Republicans Russia Socialism and Labor Social Media and Democracy South America Spying and Privacy Supreme Court Third Party Voter Access Voter ID Voter Registration Voter Suppression Voter Turnout Voting Technology Women Voting Rights Worldwide Worldwide Corruption

Reader Interactions

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Home | AMERICA | The “Independent” State Legislature In Republican Theory

Primary Sidebar

Advertise button

The Christian Evangelical Church

By Jack Jones January 22, 2023

I am not against Big Business having a voice, just not all the voices, and especially not an impersonator pretending to speak for God.

No One In Monterey County Is Good Enough To Serve In Legislature

By Joe Mathews January 9, 2023

California’s “democratic reforms” have left a place as… [key] as Monterey County without any state representation from one of its own.

democracy chronicles newsletter

DC AUTHORS

In America, the Joe-mocracy Rules

By Joe Mathews December 27, 2022

A republic? A democracy? No, our country is an avuncular autocracy run by old guys named joe.

Property Rights, Indiana-Style

By Andrew Straw December 24, 2022

Indiana’s justices have replaced constitutional property rights with ad hominem politics. Replacing them starts with better governors.

To The American Oligarchs: Lay Off Us

By Jack Jones December 21, 2022

No matter how many jobs are ruthlessly pulled out from under us, we are still going to do what it takes to put food on the table.

Indiana’s Irrational Ballot Access System

By Andrew Straw December 4, 2022

Opposing the potential 2024 retention of the Chief Justice Loretta Rush will be key to preventing disability discrimination bad blood in Indiana courts.

Federal Judge Strikes Down Biden’s Loan Forgiveness program

By Jack Jones November 24, 2022

What is unlawful is the Texas federal judge’s decision to strike down President Biden’s loan forgiveness program, not the program itself.

DeSantis Battles Trump in Florida Steel Cage Match

By Steve Schneider November 20, 2022

We take you now to the much-anticipated DeSantis-Trump steel cage match, in which “DeSanctimonious” has promised to “kick Trump’s ass.”

Why Gambling Can’t Really Lose In California

By Joe Mathews November 2, 2022

When state voters approved an expansion of casino gaming, gaming interests assured us that gambling here would be governed by strict limits.

MORE FROM OUR AUTHORS

VISIT OUR POLITICAL ART SECTION:

dc political art

DEMOCRACY CULTURE

Girl Scouts Earn Democracy Badge At Workshop In Salina

Girl Scouts Earn Democracy Badge At Workshop In Salina

January 26, 2023

The workshop assisted Girl Scouts in grades K–10 in earning their Democracy Badge through learning activities on democracy.

Study: Media Can Reduce Polarization By Telling Personal Stories

Study: Media Can Reduce Polarization By Telling Personal Stories

January 26, 2023

Sharing personal experiences and pairing them with facts reduces political dehumanization and increases political tolerance.

Study: 2020 Election Resulted In Increased Anxiety And Depression

Study: 2020 Election Resulted In Increased Anxiety And Depression

January 7, 2023

A review of 2020 Household Pulse Survey data reveals that as an election nears, people in [America] report more depression and anxiety.

Key Iran Labor Sectors Launch Major Strikes

Charlie Hebdo Caricatures Iran’s Mullahs

January 7, 2023

The satirical weekly is publishing a special issue on Wednesday, January 4, mocking Supreme Leader Ali Khamenei in support of the protests…

First Impressions Are Strongly Influenced By Political Partisanship

First Impressions Are Strongly Influenced By Political Partisanship

December 22, 2022

How we perceive strangers or the impressions we have about them, particularly their faces, is influenced by political partisanship.

MORE CULTURE

VISIT OUR US DEMOCRACY SECTION:

American Democracy