Transcripts For CSPAN3 Hearing On Independent State Legislature Theory 20220920

Authority over elections to their legislators. The House Administration Committee Hearing its about an hour in 15 minutes. I understand the Ranking Member is on his way. But we will begin this hearing for the committee of House Administration, first let me offer our apologies to our witnesses. We had intended to start this hearing an hour ago but we were interrupted by votes on the floor. So apologies for that. I want to know that we are holding this hearing both in person, and remotely, and in compliance with the regulations for the Committee Proceedings pursuing the House Resolution aid. We asked witnesses who are joining us remotely to keep their microphones muted, when not speaking to limit background noise and witnesses will need to unmute themselves when recognized for their five minutes or one answering a question. If you are joining remotely, please keep your camera on at all times, even if you need to step away for a moment please do not leave the meeting or turn your camera off. I asked that the chair be authorized to declare a recess at any point in that all members who wish to revise and extend their remarks have any written statements be remained part of the record. Without objection, that is so ordered. The independent state legislator theory holds that each state legislator has the exclusive authority to regulate regulations under the United States constitution. The three is not grounded in history, president , or a logic. But it has gained an increasing following in some sectors of america over the past 20 years. And its an parents may include some Current Supreme Court justices. In this upcoming term, the Supreme Court will hear the case of more the harper in which the North Carolina Supreme Court struck down the gerrymandering of the states conditional district. The state Supreme Court in which my colleague was once an esteemed member, relied on various provisions of the states constitution as a basis for its decision. The United States Supreme Court will decide whether the provisions of the constitution apply to all federal elections at all. We are here today to examine this legal theory to discuss the historical avenues or lack their of, supporting in and perhaps more importantly, to explore the traumatic and disruptive consequences to american democracy that would ensue if the Court Endorses it. This topic may seem dry at times, but consider this. All 50 states have Election Administrators. Some are elected, some are appointed, some are single individuals, some are boards, but none are these days actually adjusts later. This makes sense. Professional, nonpartisan ill administration is a cornerstone of the modern american right to vote. Depending on how the court results this upcoming case, that entire apparatus could vanish overnight. At least four federal elections, which i would say is fairly important instate politicians, they would suddenly find themselves in charge of federal elections. That is exactly what the framers sought to avoid. The constitution is in many ways a reflection of what came before in the field experiment of the articles of confederation which illustrated the perils of leaving the federal government at the mercy of individual states. As the Supreme Court has explained, and our Witnesses Today can confirm, the animating purpose of the constitutions elections clause was to avoid repeating that mistake. The independent state legislator fury would turn that goal on its head and give state legislatures power over federal elections. There are admittedly nuances to the theory. One version which focuses on non delegation theory would essentially dissolve all 50 state Election Administration offices. Another version which focuses on state constitutional provisions that lacks specific standards would have a narrower, although still disruptive impact. We look forward to our witnesses guiding us through those nuances today. But make no mistake, for many supporters, the independent state legislator theories are part of a broader plan to seize control of elections. In that sense, theories linked to the big lie to former President Trumps scheme to violate the electoral count act, and descend the election back to the sleep state legislators. And to the election subversion bills we see around the country that ships power away from professional Election Administrators towards politicians. That makes the theory dangerous and disruptive to american democracy, with hope to explore that point in todays hearing. I would now recognize the Ranking Member, mr. Davis, for his opening statement. Thank you madam chair. Todays hearing topic is one that Many Americans are unfamiliar with. Mostly because it is a complicated legal theory, and it is really hard to define. If you ask democrats what independent state legislator theory means, you will get one answer. If you get republicans, you will get something different. This theory focuses on the constitutions use of the word legislator and what that means. Specifically how much authority is given to a state legislator to determine election law. As a committee, we should be using this as an opportunity to gather the facts, not make any accusations or any singularly shuns. I say that because i know some on the left, and including marc elias, are setting the stage ahead of 2024 suggesting that this theory is all eight grand plan by republicans to steal the election. Which is not only ludicrous, but completely untrue, and unfounded. In fact, we are even seeing some on the left to use this theory as a, quote, doomsday type scenario to fundraise on. Typical. And an excuse to cover their favorite topic, President Trump in the 2020 president ial election. All in an effort to support the january 6th committees investigation. But no matter how the left tries to spin it, republicans believe that the constitution is clear. Article one, section four states the times, places, and manner of Holding Elections for senators and representatives shall be prescribed in each state by the legislator there of. But the congress made anytime by law will alter such regulations. Further, the president ial electors caused states each state a point in such a manner that the legislator thereof made direct a number of electors. So, the should not be controversial. Democrats and republicans should both agree that these states have the primary authority to establish election law and administer, and minister federal elections. And that Congress Plays a secondary role. This is why yesterday, i introduced the american confidence in elections act. It is a comprehensive bill focusing on the importance of strong Election Integrity reforms that meet the moment by bolstering voter confidence in our elections, while respecting the constitution, federalism, and conservative principles. This act ensures states maintain primary authorities over elections while providing them with the tools that they can quickly implement to restore voter confidence and Election Integrity. And it also removes outdated formal policies stating in their way. The constitution divides authority between congress and the states. That is why the bill is coupled with model state legislator for state legislators to consider as we work to improve Election Integrity. The same election legislation we, republicans, will implement in the district of columbia to ensure that after years of election crises in the district, residents can trust that their votes will be counted fairly, and accurately. Our driving principle is that every eligible american should have the opportunity to vote. And that the ballot should be counted according to law. Unlike the partisan that was crafted behind closed doors, my bill has been drafted publicly over the course of two years. It is the product and it feedback of ideas from a, large and diverse set of numbers from congress, stakeholders, secretaries of state, state legislators, and local Election Administrators across 18 states and territories. Both republicans, like me, and democrats like my colleagues. In fact, we have been working on this bill since before the last president ial election. I invite many of my colleagues to join me in supporting this bill that empowers states to win free, secure elections. They promote voters confidence and drive a strong turnout. House administration republicans will continue to champion policies that respect in the primary role of states over elections and ensure that it gets congress out of the way. Thank you again, madam chair, i yield back. The gentleman yields back. I will now turn to our witnesses, and who i will introduce in just a minute. I will note for the witness who is appearing virtually there is a timer on your screen. We ask each of our witnesses to confine their oral testimony to about 15 minutes, and your full written statement will be made part of the record. Welcome to each of our witnesses, and thank you for taking the time to be with us today. Joining us are professor richard from the nyu school of law, professor Caroline Shapiro from the Chicago School of law, and alliances Warren Becker, with the Brennan Center for justice. Professor is the professor of constitutional law at and why you school of law, is one of the nations leading scholars and constitutional law and a specialist in legal issues concerning democracy. A former law clerk who has been elected into the American Academy of arts and sciences and the American Law Institute and has also received recognition as a and a scholar. In dozens of articles, his acclaimed case book, the law of democracy, he has helped create an entirely new field of study in law schools. He has worked this field systematically, explores legal and policy issues concerning the structure of democratic elections and institutions such as the role of money in politics, the design of election districts, the regulation of political parties, the structure of voting systems, and the representation of minority interests and Democratic Institutions on similar issues. Caroline shapiro is a professor of law at the Chicago College of law. She is the founder and codirector a Chicago Institute on the Supreme Court of the United States. From 2014 through 2016, she served as illinois solicitor general well on leave from the law school and is a former law clerk to Justin Justice stephen breyer. She is largely focused on the Supreme Court, its relationship to other courts, and institutions and its role in our constitutional democracy. She teaches classes and legislation in statutory interpretation, constitutional law, employment law, Public Interest law, and finally eliza Warren Becker is a council where she focuses on Voting Rights and elections. She recently coauthored an article examining the historian original intent of the constitutions elections cause. Prior to joining the center, she was a litigation associate in private practice and served as a law clerk to the honorable christina a snyder at the United States District Court for the Central District of california. She received her ged from harvard law and a masters degree in Public Policy from the Harvard Kennedy school. Professor, you are now recognized for five minutes for your testimony. Thank you chair, and Ranking Member davis, and the committee for giving me this opportunity to testify. I will address to issues in my opening remarks. First, should the Supreme Court recognized independent state legislator theory, and second, what is the historical evidence against the recognition of that theory. Discussing these questions it is crucial to recognize that the issue is not simply the yes or no one of whether the constitution does or does not have independently legislator. It is several different versions of such a potential doctrine as a terror Ranking Member can acknowledge, and they have implications. If the court would have recognized the doctrine it would be just as important as to whether there is such a doctrine at all. On the first issue, the most extreme version of such a doctrine would maintain that state legislators cannot be bound by the provisions in state constitutions or by voter initiated and documents when states regulate National Elections. If the court were to embrace that virgin with a few of the provisions like state constitution that cannot be applied in federal elections. Voters in maine, alaska, california, washington has enacted top two or ranked chose voting for federal elections. Those rules cannot be applied unless the legislators chose to adopt them through legislation. Similarly, some state constitutions or these initiatives establishment criteria used for whether districts must be compact, whether partisan considerations are banned or constrained, what should be given to competitiveness in districts, and whether there should be independent commissions to do redistricting. In addition, some state constitutions in ten provisions banning, or voter identification requirements. Or banning voters who plan to vote in the general election from voting in a runoff election, or specifying how to fill Vacant Senate seats by special election rather than gubernatorial appointment. It is decision from the court endorsing this extreme version of the doctrine would be highly destabilizing, since all of these rules could no longer be applied to federal elections after the legislation. A second, somewhat less extreme version of the doctrine would be that state courts can enforce constitutional provisions that are very specific such as the Senate Vacancies must be filled by a special election but cannot enforce such as those that protect the right to vote or guarantee free and fair elections. This version would be less extreme but it would trigger a host of questions that would be difficult to result in a consistent, and principled way. Just how specific that these state provision have to be for state courts to be able to enforce it . Against a legislators in National Elections . A third version of the doctrine would focus not just on state constitutions but the more routine acts of state Election Administration, or traditional interpretation of state election laws. And this version, u. S. Constitution would be violated if these actors strayed too far from the text of state election laws and applying them. The practical consequences of such a doctrine would be that it could potentially turn many issues of Election Administration and interpretation into federal questions, which candidates and voters would try to exploit by trying to run to the federal courts and second gets these judgments. Now, let me very briefly turn to the issue of what historical basis is, if any, for the independent state legislator theory in these various versions. I will focus only on the state constitutional provision question. For scholars, agree there expressly understood the constitution created such a doctrine. And the evidence is the opposite, these five state constitutions in the founding era impose substantive constraints on such legislation. Second, before the civil war, scholars have uncovered only one mention, not in any Court Decision of such a document. Third, and healthy in 2000 decision, there does not seem to be any federal Court Precedent including from the Supreme Court which acknowledged any version of this doctrine. There is a scholarly debate over whether a few state Supreme Court in the civil war era, and a congressional resolution of contested election during that period did recognize that she doctrine. But even if those pieces of evidence supports the doctrine, the overwhelming historical practice illustrates that state constitution throughout American History have imposed substantive constraints on state legislations, and in some, the consequences should the court recognized the doctrine are potentially quite destabilizing, especially depending on which version the court recognizes. And there is minimal historical support for such a doctrine. Thank you. Thank you very much professor. I would like to ask professor shapiro to give her testimony. Thank you. Ranking member davis, and distinguished members of the committee, the state theory or the i. S. Healthy can take a variety of forms. During the 2020 election, some justices appeared to embrace among the most extreme versions such as second guessing state Court Interpretations of their own laws. Almost every version of the islt starts with the claim that the elections and electors clauses, which gives state legislators the authority to regulate federal elections mean that when legislators do so, their own state constitutions require or prohibit does not matter. Nothing in the closets compels that reading. And at least equally natural reading recognizes that legislators are creatures of their constitutions, and so they make laws only as allowed by them. Historical understanding and practice overwhelmingly supported this latter view. If you highlights, from the time of the founding state constitutions have regulated federal elections. Between 1789 and 1803 at least 60 constitutions regulated whether elections should be by valid or by voice vote which was extremely controversial at the time. And those provisions were understood to apply to federal as well as state elections. Some early state constitutions explicitly regulated federal elections. The delaware constitution of 1792, for example, expressly regulated the election of congressional representatives. In addition, the overwhelming majority of state courts to consider state constitutional challenges to state laws regulating federal elections have applied their constitutions. Congress, as well, have deferred to state constitutions and serving as the judge of elections. Islt proponents point to a handful of states Supreme Court cases declining to apply state constitutional provisions to laws governing federal elections and to a single contested election in the house of representatives in 1866. But those examples are, at most, outliers and a long swath of historical practice pointing in the other direction. And almost none of them, unambiguously rely on the islt. There is also absolutely no historical evidence supporting the more extreme versions of the islt. For example, the notion that federal courts can second guess state courts interpretations of their own laws seems to have first appeared in the concurring opinion where it is presented as a statement without citation i turn now to the implications of the islt, to be blunt, it would be extraordinarily destabilizing. For example, most state election laws apply without distinction to federal and state elections. States generally have one Voter Registration system, for example. If a state Court Strikes down some aspects of those laws as violating the state constitution, they might require that the law nonetheless remain in effect for federal elections. Depending on the specific provisions, this would be at best confusing, and at worst impossible. The same is true for statutory construction. The maximalist islt might require a different interpretation of the scene in the statute to apply to federal elections until state elections. The islt wood thus disrupted undermine Election Administration. Despite rhetoric supporters use promising that the promotes predictability, it throws out centuries of state Court President interpreting state constitutions, including president establishing predictable approaches to the constitutional guarantees to free and equal elections that appear in more than half state constitutions and have a history dating back to the founding era. Islt also rejects long standing prudence on statutory interpretation and might require ignoring precedent identical statutory language. Likewise, despite rhetorics supporters used promising the islt promotes political accountability by undermining expectations and longstanding practice it actually makes it harder for voters to know what their legislators have done. And by turning every question about state election law into a federal constitutional question, it shifts decisionmaking about state election law away from state courts and Election Administrators, and to the federal courts, especially the Supreme Court. If nothing else, the islt will promote unending election litigation bringing uncertainty and disruption. Congress has the power to overt many of the worst implications of the islt as well as to protect democracy and other ways and i urge you to use that power, thank you. Thank you very much. Finally we will hear from miss eliza swerenbecker, her testimony. Chair, Ranking Member, and members of the committee. Thank you for the opportunity to testify about this dangerous unprecedented legal claim being pressed by conservative activists. As you know, the Supreme Court agreed to hear more moore v. Harper, in which some carolina legislators have asked the court to embrace the socalled independent state legislator notion. This is the radical claim, the theory is to generate some a word, pushing that the constitution removes the normal checks on state legislators when they regulate federal elections. You have already heard that the claim is wrong. The constitutional text, American History, Supreme Court precedent, sound policy, and common sense all refute the notion. I will focus on the crushing consequences for American Voters under multi racial democracy at the Supreme Court turns this fringe notion into law. Here are four examples however this idea could allow. First, the notion will greenlight gerrymandering for Congressional Elections. A state legislator could draw an extreme partisan gerrymander without consequence. Something the state court would otherwise treat down as a legal under the state constitution. That is just as backwards as it sounds. State lawmakers could violate their own constitutions. Redistricting commissions and up to nine states would become defunct and fair representation could become more difficult if impossible. The Supreme Court already took federal constitutional protections off of the table, ruling in the case that federal courts could not stop gerrymandering. The court pointed to state courts as the answer. But if state courts can stop partisan gerrymander, spieth active will drive. The radical claim will remove constraints on voter suppression. A legislator could eliminate early voting. Even if it is articulated than the state constitution and adopted by the people through direct democracy. The governor would be unable to stop this decision and is state court would be powerless to stop it as well. Yes, voters could bring their case to federal court, but the Supreme Court has gutted the most powerful provisions of the Voting Rights act and undercut other federal voter protections. Third, the notion would create election chaos, disenfranchising voters and overwhelming Election Officials. The claim would undo hundreds of election laws and state constitutions and acted by ballot and implemented through administrative rules. Policies and acted through direct democracy like seeing the registration and even voter i. D. Could be wiped off the books for federal elections. Voters could be blocked from voting for candidates for federal office, even if they are eligible and the properly register to vote. A range of other policies established in the state constitutions rather than legislation would be avoided. The right to cast a secret ballot, for example, is established in 44 state constitutions. Election officials would be forced to administer a two tiered complex system with different policies for state and federal elections. It would be unclear which rules actually apply. And if Election Officials do not know what the law is voters surely will not. Fourth, the notion would remove critical checks against election interference and shop sabotage. The radical idea could enable legislators to manipulate outcomes. For example, they could enact arbitrary rules for counting votes. The claim would invite legal challenges asking federal courts to throw out ballots, casten reliance on constitutional provisions, laws and act by ballot initiative, or policies implemented by Election Officials. To be clear, the independent state legislator claim is not a license to ku. The federal law prohibits state legislators from overturning the results of the elections the notion would open the door to antidemocratic shenanigans and erode trust and ultimately participation in our democracy. Even if the court embraces this radical notion, congress can thwart many of its worst consequences. The elections clause, the very same constitutional provision dodd activists are trying to weaponize against democracy gives congress the power to enhance and protect Voting Rights and ensure fair representation. Regardless of how the court rules, i urge you to revisit and pass the freedom to vote. The bill was set National Standards for voting access, prohibit partisan gerrymandering, at a federal protection against election interference and sabotage. This legislation is critically needed, thank you. Thank you very much, and thank you to each one of our witnesses for their testimony. We are now at a time in hearing when members may ask questions of our witnesses for as much as five minutes and i would prove to the gentleman from georgia for his questions. Thank you, it is a pleasure to be with all of you today, and thank you to all of our witnesses for being here. I was very intrigued with the testimonies there. Especially with the extreme isl there is that people are putting out there. First, let me say i am proud to join with Ranking Member davis and my good friend, and several others on a bill that we are pushing forward, the american confidence in elections act that actually takes meaningful steps to secure our election. While still respecting the federalist principles that our framers put into the constitution. And as we discussed, this isl theory today, i think we should keep in mind that the versions we heard today include a very extreme version of this theory. I do not want us to jump to conclusions that the Supreme Court would embrace a extreme version of this. I have heard just as the u. S. Constitution is a restriction on the power of the federal government, including a restriction on the legislator, state constitutions are restrictions on the state power, including their legislators. The constitutions exist for a reason. A legislator cannot over ride their constitution without some amendment to the constitution. A lot of what i heard here explain today ironically sounds a lot like the arguments that are side made against the federal attempts for federal takeover of state elections by my colleagues on the other side of the aisle. I agree with much of what you are saying but we need to be clear that i think the more extreme versions, we should not assume that the Supreme Court is going to agree with that. I do have a few questions, though. Ms. Eliza swerenbecker, when the framers pinned the election calls in article, section four. What did they understand the term legislator to mean . I know from reading federalist papers and writings of our framers and our founders, they chose the words very carefully for specific meanings. So, what you understand that they the term legislator meant to them when they frame the constitution . Thank you for that question. I have had the pleasure of looking through this historical record. Looking at the debate during the constitutional and the ratification debates in every state when they were discussing the elections cause. What is clear is that the framers were trying to constrain the power of state legislators. They wanted to make sure that these state lawmakers who they deeply distrusted would not have exclusive power to regulate federal elections. That is why the second part of the elections clause gives congress the power to make or alter federal election law. It is there for absurd and directly contrary to the historical record to think that this very same free mares would have given to the legislator alone in a state the power to regulate federal elections without the normal if i could just narrowed down to answer the question, what does the term legislator mean . And we have a different interpretation from studying the founding era. What i read is during the debates, they mostly distrusted the government they were creating. Most of them came from state legislators. So they were more concerned with the power of the federal government overriding state legislators. I am not defending the isl theory here, my question is, what did they mean by an article one section for, the term legislator. I appreciate your question. I think we have a different reading of the historical record. But nevertheless, the one thing i think its instructive and understanding what the framers meant 20 used the word legislator is what they meant when they used the Word Congress on the other part of the elections clause. Nobody understands that elections clause to give congress the power to enact laws that do not need to be sent to the president for his signature or veto. Nobody understands that part of the elections clause to give congress the power to enact laws that federal courts cant adjudicate. The same is true for legislator in the first part of the elections clause. We are quickly running out of time here. And so dont know that we got the answer about what legislator means. So, one of the things that the framers did is they wanted to make sure that future generations understood the meaning that they put in the document itself for future generations because we have an evolution of language. So actually, webster worked with many of them to create the first dictionary of the american english language, he said it was to help future generations of americans interpret. The term legislator in that document as he is saying, our founders intended it to mean is the body of persons in a state or kingdom invested with the power to make and repeal laws. He then goes on and explains what the state legislators mean, which is the elected bodies within the state with the power to pass, and repeal laws asked constrained by the constitution. So i am sorry i was not able to get to any other questions, but i think we need to make sure that if we are inter breeding legislator one way, it needs to be consistently interpreted throughout the entire document of the constitution not being able to use one interpretation for one article and cause and not another. Gentlemans time is expired. Mr. Raskin is recognized. Thank you, madam chair, for calling this very important hearing. And professor becker, am i calling you the right name . Eliza swerenbecker, but im not a professor, so i cant clean that title. Im not wearing my glasses. I want to go to that point you were making before. Go to the elections clause. It is set up, it seems purposefully to create congress as a backstop for the state legislatures, to make sure that congress could regulate elections and so on over the states if necessary. Did that give congress the power or the right to do that out side of president ial signature on bills that were passing outside of judicial review . In other words, is there an independent congress doctrine, as well . There is no independent congress doctrine. The framers use the Word Congress and the framers used the word legislature in context, in the context of the checks and balances that apply both to state legislatures and congress. In other words, if we are to exercise our power under the clause them to legislate the Voting Rights act, for example, i think the elections clause was implicated as well, when it was passed by congress, it still needed to be signed by the president , even though it is the congress that had the power to do it. So similarly, state legislatures passing election laws have always sent their bills to their governor under the state constitutions for signatures. Is that right . Yes. So the state Legislature Doctrine would suddenly announce that more than two centuries and some laws are somehow unconstitutional or at least went through an unnecessary set of being signed by the governor and operating under state constitutional veto requirements and so on. Is that right . Yes, this theory if it were embraced would nullify hundreds of election laws that have been in place in for many years, and in some cases centuries. As my colleagues have reflected, state constitutions were adopted around the time of the ratification of the constitution, thats themselves constrained state legislatures. Everyone understood at the time the state legislatures are creatures of their own constitution, and are constrained by them including requirements for gubernatorial review. There are some places in the constitution where the legislature does operate independently, right . As opposed to in this normal legislative capacity . Are there . Not yes. Certain instances. What are some examples for that . Maybe i could come to you, professor shapiro. Yes, the legislature act separately when it is independently being asked to ratify a federal constitutional amendment or during the times when senators were directly chosen, appointed by state legislatures before the 70 the men . It before the 17th amendment they acted independently. This constitution uses different verbs to describe what the legislatures do in those contexts, as opposed to saying direct. For example, the electors clause uses words like a point, which is what the constitution referred to before the 17s fifth amendment to the appointment of senators. So the word legislature has to be understood in the context of precisely what it is, that the legislature is being asked to do or being authorized to do by the constitution. Okay, so, lets see, professor richard pilde, if youre still out there, i want to ask you about that point. The claim seems to be made now that if state legislature can act independently for any specific purpose they must be able to act independently for all constitutional purposes, including the primary purpose of ordinary lawmaking. Is that right . Professor . You need to unmute, rick. Is that unmuted . Yes, we can hear you now. Sorry about that. I think your statement is correct. If we take congress, when Congress Proposes constitutional amendments, congress does not have to present those to the president. In fact the bill of rights was not presented to the president before it was adopted, or sent out to be states to be ratified. We wouldnt of course conclude that congress wouldnt exercise its powers to regulate federal elections, doesnt have the to present a bill to the president. I think that is a good example, in the federal context, and i think Justice Ginsburgs opinion does acknowledge that the 70 the men meant, state legislators might have been independent in their role as elector, but not in their role of regulating ordinary law making. Gentlemen, time has expired, lets turn to mr. Bryan steil for his questions. I want to start by jumping back to yesterday for a second, on the importance of making sure that our elections are free, fair, and secure. And know that i am proud to join the Ranking Member, mr. Davis, my colleague, mr. Barry loudermilk to my right, in introducing the ace act, to inspire voter confidence and Election Integrity. I think its an important price of legislation, introduced yesterday in one i would encourage folks to look into. Id like to direct my question to todays topic, to mr. Richard pilde if i can. We have heard testimony today from witnesses saying the independent state legislatures theory is one that could impact our elections process. I would like to start by asking you if there is any specific leaguer precedents as affirming legislators do not have the absolute power in elections . What have the court held on this issue . The courts have certainly always applied state constitutions to assess state election laws. The courts have never second guess the interpretation or the administration of state election laws. Through the federal constitution we didnt get any indication of that until and no federal court has ever adopted doctrines up to this point. Just a few opinions, statements. So they have never held against independent state Legislature Theory . I dont think the issue, as far as i know, was ever presented to federal courts before it was raised in 2000. So the practice has been to not apply such a doctrine understood, but never ruled on. Thats fine. Just helpful for us to understand the topic. Never been ruled on. I want to walk through a couple of implications here. How would independent state legislators theory impact states that have independent redistricting commissions . Weve heard a previous witness reference the impact that it may have. The Supreme Court has already upheld the power of through voter initiatives to create a for districting. That was a 5 to 4 decision. There was discussion about how solid the precedent will remain, but that was certainly the precedent for that. Okay, shift gears slightly. How would the islt theory effect the certification process . It depends on exactly which virgin we are talking about but since certification is primarily administration, interpretation, it would only be impacted Supreme Court would conclude that there was a federal role in second guessing the application and interpretation of state law. Okay. Third question. How would it impact state, constitutional amendment that would be approved by the voters through a ballot measure . Well, the first answer is of the state constitution provisions are off the table altogether then, those would follow along with them. The general state constitution. Maybe there is an attraction among some to adopt the state constitution is fine but not voter initiated amendments. But i am not sure exactly how one would defend that distinction. I appreciate your insights today. I appreciate holding the hearing, madam chairwoman. I yield back. Mr. Butterfield is recognized. Thank, you madam chair, for convening this very important hearing, and thank you to the witnesses for your testimony. You know, i represent one of 31 distance or lower North Carolina, and as you all know the originated in my state as well as the moore v. Harper case, so im a little more acquainted with these cases then probably most members of con grace. I am concerned about. This some years ago we can challenge the congressional map on the basis of partisan gerrymandering. Which is the case to federal court in the lower federal courts ruling or favor, ruling that the state legislature engaged in partisan gerrymandering and that it was a violation of the federal constitution. That case was taken to the u. S. Supreme court and unfortunately the high court decided that political gerrymandering is not protected by the federal constitution. But in that opinion the court suggested that it might be cognizable under the state constitution but not under the federal constitution. As years went on that is when the moore v. Harper case came along we decided to do what the Supreme Court is suggesting. We litigated the redistricting map in state court. And again, we prevailed in state court. In fact the state Supreme Court ruled that the congressional map was an extreme, intentional, partisan gerrymandering directed to the legislature to fix it. The legislature had to follow the directive of the court. And so now we have a new map. The map is a fairer map than it was originally, but unfortunately the plaintiffs in the case have now, or at least the defendants in the case, have now taken the matter to the Supreme Court and Supreme Court is now going to have to decide whether or not state courts have any authority whatsoever over election laws within the state. And so i guess my question is, professor, i guess youre still with us, online, are we overreacting . Or is it likely that the Supreme Court will decide that state legislatures can enact the election laws affecting federal elections and deny this state courts the chance to make a . A representative butterfield, i have been writing about North Carolina redistricting since the early 1990s. I was actually part of the legal team representing common cause in the case you described. I was involved in the candles case. I was involved in. That absolutely. I think is obvious questions have indicated, it is very difficult to say because there are a whole variety of versions of doctrine that have been hinted at. Some would have it the stabilizing con consequences, to be sure. Most of them would have significantly the stabilizing consequences, and there are lots of legal uncertainties that would be unleashed under any version of this doctrine. So yes, i do think its a concern about what the doctrine might be of such a doctrine is endorsed by the court. And exactly how destabilizing it would be, how much litigation it would unleash, there is no question the disappointed candidates and voters will run to federal court to try to overturn state Court Interpretations and so there is a lot of uncertainty here, but so youre saying you really believe that u. S. Supreme court will decide that state courts do not have the authority to interpret and enforce the state constitution . You really believe the u. S. Supreme court will go that far . Im not going to make any predictions here, but i can tell you that justicess alito and thomas at least have signaled that they are very disturbed by state of pennsylvania for constitutional rulings for state election law. There is no question that that is a serious issue before the court. There is some indications that at least some justices are prepared to accept such a view. Thank, you madam chair, youll. Back gentlemen yelled back. Mr. Leading up to january 6th, invoked the isl theory and there are other doctors are there, as we have heard, but that was cited as part of the creation of, quote, a fake electors, that would be submitted to congress to get the then Vice President is and the results the Electoral College back to the states to prevent certification. Can you tell us how this theory informed the strategy that ended up being used by these individuals, john eastman, rudy giuliani, others, to undermine legally cast ballots of millions of americans . Thank you for the question. To be clear, the independent state legislature notion, if adopted, would not let state state legislatures send a fake slate of electors out to congress to be certified. As i said, the theory is not a licensed coup. But you are correct the President Trump relied on the theory in challenging policies that were in place in states across the country, trying to get ballots thrown out the door cast in reliance on policies adopted by secretaries of state or governors, for example. And so this notion was the legal backbone that informed this effort to overturn the will of voters. If the Supreme Court gives credence to extreme versions of this, the scenarios where alternate slates are submitted and the president who fails to win 270 electoral votes could be certified as president . As i said, the theory wouldnt permit that kind of scenario. But it does open the door to efforts by state legislatures to attempt those kinds of antidemocratic shenanigans. Federal law would prohibit that from happening, but legislatures might try to change the rules for vote counting, for example, or might try to institute sham audits to affect the results of elections. So there are other ways that legislatures might try to interfere with the elections, even beyond those fake electors and that strategy. Thank you. Professor shapiro, we talk often in this Committee Room about our local officials, election, and administrators, many of them who are struggling with resource issues and some of them have received threats over the past few election cycles as well. Can you describe what could happen to communities of color if basic essential Voting Rights regulations, which state Elections Officials initial administer, were gotten a response to some of these theories. In your written testimony you claim that some of those local Elections Officials might struggle based on the interpretation of these series. Every decision that a local election official makes that involves discretion could be second guessed and litigated in federal court. Even where those particular decisions have been affirmed or ratified by state groups, in pennsylvania, for example, in 2020, there was litigation about whether or not county clerks could have drop boxes in which voters could put their mail in ballots. The pennsylvania Supreme Court concluded that the statute should be interpreted to allow those drop boxes at the discretion of a local officials. Under the eye snl t, or extreme theories, or extreme versions of it, federal courts would be able to come in and revision revisit that essentially de novo and say that thats not how they agreed, even though under normal circumstances state courts have the final say over what state statutes mean, a discretion as delegated to Election Officials so that they can do their job. What could this mean to communities of color . To the extent that community of color are already in under resourced areas or in areas with high population density, there may be more need in those contexts for Election Officials to try to find ways to ensure that everybody has the right to vote. They need to exercise discretion in ways that perhaps, in a small rural county, predominantly white, that the same issues simply just dont arise. So the need to exercise discretion in this particular way might not be there. It also, i think, opens the door for this kind of litigation that is essentially going to be incredibly time consuming and incredibly resource intensive. Anytime somebody doesnt agree with a particular discretionary decision or sees it as strategically beneficial to challenge the decision, which will deter officials from making those kinds of decisions. Thank you so much. Youll, back. Madam gentleman, time has expired. I have just a couple of questions. You know article one says that the time, places, and matters will be described in each state. Every state has decided to have an election votes by their citizens. That every single, all 50 states have decided the american citizens are going to decide this by a vote. Some have suggested that if you took the extreme independent Legislature Theory to the maximum amount that it could empower state legislatures to essentially decide otherwise. You have a vote, you dont like the result, the legislature points who they want. So professor richard pildes, id like you to comment on that and some state legislatures did indeed suggest that in the last president ial election. Your comment, whether reform of the electoral act could play a role in remedying such a threat to the right of americans to select their government. Thank you very much for that question. So first, even as things stand today, congress decides they are which electors have to be appointed. Thats a constitutional Power Congress has. It means state legislatures cannot, after election day, suddenly decide we dont like the popular voice vote, we are going to appoint electors. Thats on constitutional. The electoral count act reform, the least bipartisan bill that was buggy introduced, would help solidify that structure by making it clear, in ways that i think is already in the original act, this would make it much more clear, that states have to act pursuant to laws and procedures established by them for the election. Thats what we all want. We want fair rules, established in advance of the election, they cant be manipulated after the fact we are one partisan purpose or another. So i do think the bill that will reduce will secure the process against those we have been working on a bill as well that is not quite done but should be introduced in the next couple of weeks and will be discussing with our senate how to reach consensus. Im sure that we will come to a meeting of the mines in a very cordial way. Heres a question for anyone. I have often thought some of the rhetoric that was pursued, that the state legislators could send in their own electoral slate, despite what the vote had been in their state, what the role of article four, section four, has in such a decision. The United States guarantees to every state in this union a republican form of government, and that, it would seem to, me does not include a state legislature is throwing out the votes of its voters and imposing its own decision instead. Does anybody have a comment on that . I would agree with, first of all, i agree with my colleagues of the state legislatures under the constitution cant after the fact change the rules about how the electors are chosen. Whether they can, the independent state Legislature Theory, however, might allow them to put rules in place before the election that say, for example, take away from the court the ability to adjudicate disputes about the election after the fact and give the power to determine election contest to legislature itself. Youre asking if that might violate guarantee clause. The guarantee clause has been holed to be non justice rubble, but it provides congress was an opportunity to regulate how these decisions are made. I think it would be well within congressional power to say that the guarantee clause requires my question isnt whether its just a simple, but whether the cut looks at this, in the whole contexts of the constitution to elevate state legislators without looking at a framework that is a republican form of government would be inconsistent with that amendment, wouldnt it . With that section of the constitution . I think it would be inconsistent but the court has not shown itself to be interested in looking to the guarantee clause when it interprets other relevant clauses. Just to reiterate, you have the power to rely on the guarantee glass. My time is expired and im going to turn the gavel over to mr. Gas to recognize our new member. Thank you madam chair. I recognize the thank, you mr. Raskin. I have gotten a lot of questions from constituents over the last few weeks in the wake of the review for the case for this i. S. L theory. So im trying to explain to constituents even as i look at into it further, and we do that in pennsylvania through the lens of what has been going on in pennsylvania for the last few years. We have statutory gerrymandering, stricter ideologues, and those have both been pushed back through litigation and then of course during the 2020 election we found our result under at tack without basis but nonetheless under attack through a variety of court cases, dozens of, them in fact. Can you, i think you raise that in your testimony, miss shapiro. Can you talk about the impact of that theory and what we need to be concerned about . We need to be concerned about, among other things, all of these decisions that the state courts have made and all of the precedent that exists that the state courts rely on in a league that the legislature relies on, whether or not those will continue to be effective with respect to federal elections. You also need to be concerned about whether the rules might be different from federal elections versus state elections, regardless of whether or not the Legislature Passes different laws, because they might be interpreted differently or because to the extent of the state courts strikes down the with respect to federal court but with respect to federal elections. So there could be an enormous amount of chaos, to put it mildly. That has been one of the problems we have had to address, that there has been chaos with changing rules and impacting the electorate and people not being certain of whats going forward. Of course that damages our institutions in general. Do you have recommendations on what we should do as congress to protect the right to vote in light of the kinds of things we have seen happening in pennsylvania . I certainly, with respect to the islt, the congress could, for example, pass a law that says that with respect to state laws governing the federal elections, the presumption is, with the actual rulers that they necessarily incorporate state constitutional processes provisions and all statutory interpretation, et cetera. You could pass a law that the timing of federal courts under which they can intervene, especially after a state court has already ruled on a particular issue. You could also address other issues, as you just consider doing, and hr1, and dressing extreme partisan gerrymandering. You could do that with respect to state legislative offices. It is been interesting. We hear a lot of specious arguments about the elections clause, article one, section four, and whether congress has the power to address what is happening in our elections in this state. Can you summarize . That theres no question that congress has the power to address Congressional Elections under article one section four give expressly gives power to congress to do so. The Congress Also has power under the guarantee close to guarantee a republican form of government and has the obligation to do so. There is nothing in the constitution to suggest that the federal government cant ensure that states operate federal elections properly, but it is congress that has that power, not the federal courts taking it away from state courts. Thank you. I would defer to our constitutional expert, but i believe my recollection is that it was some kind of misconduct in South Carolina that led the framers of the constitution to insert that clause. But ill take your word for. It i cant remember which stated was in. I know the power is there and the purpose is clear. Im going to ask a few more questions i yield. Back gentlelady leal bleeds back. Under the extreme versions, and this independence date hypothesis, i have not read the literature about. It id be interested to know if there is a law review corpus around this. But are they asserting that a legislature could actually enact legislative changes, say, repealing vote by mail, or adopting vote by mail, or moving to instant runoff voting or over throwing instant run our voting without sending the legislation to the governor of the state under the constitution . Thank you for the question. I will first note that there is a wealth of schoolers regarding this theory, this isl theory are you guys just debating a mirage here, or is it an idea that popped up in the Supreme Court but theres no support for it historically are academically . No serious evidence on the other side, no support historically, no support legally. The Supreme Court has repeatedly rejected this idea in precedent after president. As recently as the arizona case, right . Yes. They rejected it outright. But is someone claiming somewhere that a legislature could actually adopt election laws without sending it to the governor of the state under the state constitution . That is a logical extension of this theory. The excuse, me sorry. No that was just a wow. The notion that it was the legislature alone outside the ordinary law making process and without urinary checks and balances that apply to the state law making bowel body, thats the premise of the notion. Its just as radical and shocking as you suggest. Okay, professor shapiro, you mentioned something in passing that caught my attention. You said that under the doctrine a state legislature could divest the courts of the ability to review the election laws they are adopting. Are you saying that the turbocharged version of independent state Legislature Theory would actually allow them to say, we are curving out on exception to marbury versus madison, and there wouldnt even be Constitutional Review . I dont think that the state legislature can prevent federal Constitutional Review, but it certainly could, under the theory, under the turbocharged version, prevent state court. But it sounds like it doesnt even have to. May in fact, it couldnt do it even if it wanted to, right . In other words, if the legislature said, and we will leave this up to Administrative Agency to interpret the particular times or placement of voting precincts, or what have you, they couldnt do that . Under some versions of the theory and Justice Gorsuch suggested he might be open to that in one of the North Carolina cases in 2020. The legislature under the state under this more expansive notion must act as a legislature and as an Administrative Agency and as its own court, interpretation near the state constitution, although the state constitution may be irrelevant here. Its as if they are saying the state legislature act in a completely different capacity and exists as a different kind of beast when it governs election law. And state election law, or state constitution law is just irrelevant. Am i over reading that . No, thats exactly right. The logical extension of this theory is, theres no separation of powers the. Judiciary doesnt get to say what the law is and the constitution has no bearing on what the legislature can do noreasters the governor but only in the instance of regulating federal exam elections. And that exception makes no sense. It seems to me, given that there is no historical basis for this, given that there is no real academic support for it, it seems like there is an effort to spot places that benefit a particular political destination or program and then say we are control, lets dramatically inflate the power of that office or person. Its sort of like what happened on january six, where we said well, the Vice President actually has the power to count Electoral College votes and, without carlo congress being involved, essentially determine whos going to be president. There was never any basis for. That nobody ever claimed it in a surprising that no one wouldve noticed it for more than two centuries of american constitutional and senatorial congressional practice. And, yet that was the claim being made. It was a coup in terms of legal theory, as the judge from california said. Im afraid that this is a bit of a Political Fix in search of a legal theory. Im half e to recognize my friend, mr. Styles. Lets just dive back in here in round two. Mr. , mirrors, sorry not a reverse or you said that, earlier to, right . Ms. Horn backer. You gave testimony regarding Independence Day legislative theory, claiming the theory is, if adapted by the courts, would deprive the voters of reappear elections. You pivoted january six in the fact that states have enacted various election reform measures. Can you confirm, would your position may isl be the same for democratically controlled states like illinois or maryland . Thank you for the question. When i think youre pointing out here is that the independent Legislature Theory is bad for americans, no matter what side of the aisle youre on. Is that your position . Absolutely. Okay. Shift slightly. You also mentioned that if isl was all adopted in state legislators it would not have a check and balance on their powers. Is that a fair analysis . Yes. This notion removes checks and balances that apply to state legislatures. Do you think voters play a impact on state legislators . Yes, thats why its so concerning that this notion could remove the power of voters to enact laws through direct democracy. I appreciate your comments. Mister chair . I yield back. Thank you very much. I dont know, miss scanlon, did you have any further questions . All right, well, in that event, were going to come to a close here. I think that all of our expert witnesses have demonstrated that there is no foundation in the text of the constitution, in the structure of our constitutional system, in the history or the practice of elections for this radical and brazen claim. Im glad we seem to have some kind of bipartisan agreement about the strangeness of this doctrine. I want to thank all the witnesses for their valuable testimony. I want to thank the members for their excellent questioning today. The members might have additional questions going forward. We will ask you to respond in writing, if you would. The hearing record will be held open for those responses, and without objection at the committee and House Administration now stands adjourned. Tioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [captions Copyright National cable satellite corp. 2022] thank ceos for Jpmorgan Chase citigroup wells fargo and others testified to a House Committee on banking regulations and matters from racial equality to the war in ukraine. Watch live, wednesday morning, at ten, eastern, on cspan 3. Cspan now, our free mobile video app, or online, at cspan. Org. Judy shelton has been appearing on cspan since 1989. Her first visit was on booker notes, to discuss her book titled, the coming soviet crash. During the past 33 years since her first appearance on cspan, judy shelton has been in and out of politics. She worked, for a time, with three president ial candidates, including bob dole, ben carson, and donald trump. It was President Trump who nominated her to serve on the board of the federal reserve. Her selection to the fed was controversial and eventually president Joe Bidens Administration withdrew her nomination in february of 2021. Judy shelton on this episode of booknotes . 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