[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]






  THE INDEPENDENT STATE LEGISLATURE THEORY AND ITS POTENTIAL TO DISRUPT
                             OUR DEMOCRACY

=======================================================================

                                HEARING

                               before the

                           COMMITTEE ON HOUSE
                             ADMINISTRATION
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               ----------                              

                             JULY 28, 2022

                               ----------                              

      Printed for the use of the Committee on House Administration

                              BOOK 1 OF 2



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]






                       Available on the Internet:
         http://www.govinfo.gov/committee/house-administration




















 THE INDEPENDENT STATE LEGISLATURE THEORY AND ITS POTENTIAL TO DISRUPT
                             OUR DEMOCRACY

=======================================================================

                                HEARING

                               before the

                           COMMITTEE ON HOUSE
                             ADMINISTRATION
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 28, 2022

                               __________

      Printed for the use of the Committee on House Administration

                              BOOK 1 OF 2



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]





                       Available on the Internet:
         http://www.govinfo.gov/committee/house-administration 
         
                             _________
                              
                 U.S. GOVERNMENT PUBLISHING OFFICE
                 
48-460                   WASHINGTON : 2022
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
                   COMMITTEE ON HOUSE ADMINISTRATION

                  ZOE LOFGREN, California,Chairperson
JAMIE RASKIN, Maryland               RODNEY DAVIS, Illinois,
G. K. BUTTERFIELD, North Carolina      Ranking Member
PETE AGUILAR, California             BARRY LOUDERMILK, Georgia
MARY GAY SCANLON, Pennsylvania       BRYAN STEIL, Wisconsin
TERESA LEGER FERNANDEZ, New Mexico 




























                            C O N T E N T S

                              ----------                              

                             JULY 28, 2022
                                 BOOK 1

                                                                   Page

                           OPENING STATEMENTS

Hon. Zoe Lofgren, Chairperson....................................     1
      Prepared statement of Chairperson Lofgren..................     4
Hon. Rodney Davis, Ranking Member................................     6
      Prepared statement of Hon. Davis...........................     8

                               WITNESSES

Richard Pildes, Sudler Family Professor of Constitutional Law, 
  New York University School of Law..............................    11
      Prepared statement of Prof. Pildes.........................    13
Carolyn Shapiro, Professor of Law, Chicago-Kent College of Law...    24
      Prepared statement of Prof. Shapiro........................    26
Eliza Sweren-Becker, Counsel, Democracy Program, Brennan Center 
  for Justice....................................................    46
      Prepared statement of Ms. Sweren-Becker....................    48

                        QUESTIONS FOR THE RECORD

Richard Pildes, Sudler Family Professor of Constitutional Law, 
  New York University School of Law, responses...................    74
Carolyn Shapiro, Professor of Law, Chicago-Kent College of Law, 
  responses......................................................    85
Eliza Sweren-Becker, Counsel, Democracy Program, Brennan Center 
  for Justice, responses.........................................    94

                       SUBMISSIONS FOR THE RECORD

Hon. Rodney Davis
    American Confidence in Elections Act, submission.............   100
    ACE Act Section-by-Section Analysis, submission..............   270
    ACE Act Summary, submission..................................   281
    July 2022, 50 State Survey: Election Worker Protections, 
      submission.................................................   282
    August 12, 2021, The Elections Clause: States' Primary 
      Constitutional Authority Over Elections, submission........   307
    ACE Act Bill Summary, submission.............................   316
Michael T. Morley
    Fordham Law Review, The Independent State Legislature 
      Doctrine, submission.......................................   320
    Georgia Law Review, The Independent State Legislature 
      Doctrine, Federal Elections, and State Constitutions, 
      submission.................................................   380
    Bush v. Gore's Uniformity Principle and the Equal Protection 
      Right to Vote, submission..................................   474
    Northwestern University Law Review Online, The Intratextual 
      Independent ``Legislature'' and the Elections Clause, 
      submission.................................................   552
    Notre Dame Law Review Online, The New Elections Clause, 
      submission.................................................   576
Derek Muller, June 10, 2022, The (unsteady) origins of the 
  Plenary Presidential Elector Selection Power Doctrine, 
  submission.....................................................   604
McPherson v. Blacker, 146 U.S. 1*, 13 S. Ct. 3**, 36 L. Ed. 
  869***, 1892 U.S. LEXIS 2171****, submission...................   610
Supreme Court of the United States, Arizona State Legislature, 
  Appellant v. Arizona Independent Redistricting Commission et 
  al., submission................................................   634
Thomas Knapp, The Constitution versus ``Independent State 
  Legislature'' Theory, submission...............................   677
Andy Craig, July 6, 2022, The Limits of Independent State 
  Legislature Theory, submission.................................   680
Republican Staff Report, August 24, 2021, Committee on House 
  Administration, An Unprecedented and Unconstitutional Power 
  Grab: How Democrats are Abusing the Constitution to Nationalize 
  Elections, submission..........................................   685
Hon. Rodney Davis
    H.R. 4 One Pager, submission.................................   725
    H.R. 1 Top Ten Provisions, submission........................   726
Supreme Court of Florida
    Palm Beach County Canvassing Bd. v. Harris, submission.......   727
    Gore v. Harris, December 22, 2000, submission................   747
    Gore v. Harris, December 14, 2000, submission................   765
    Supreme Court of the United States, Rucho et. al. v. Common 
      Cause et al., submission...................................   767
Supreme Court of North Carolina, submission......................   839

                                 BOOK 2

Democrat Election Misinformation Tracker, submission.............  1401
Robert G. Natelson, The Original Scope of the Congressional Power 
  to Regulate Elections, submission..............................  1402
Michael J. Luttig, October 3, 2022, There Is Absolutely Nothing 
  to Support the `Independent State Legislature' Theory, 
  submission.....................................................  1448
Helen White, June 30, 2022, The Independent State Legislature 
  Theory Should Horrify Supreme Court's Originalists, submission.  1461
Hayward H. Smith, History of the Article II Independent State 
  Legislature Doctrine, 29 Fla. St. U.L. Rev, 731 (2001), 
  submission.....................................................  1464
Hayward H. Smith, Revisiting the History of the Independent State 
  Legislature Doctrine, 53 St. Mary's L.J. 445 (2022), submission  1513
Vikram David Amar, Akhil Reed Amar, Eradicating Bush-League 
  Arguments Root and Branch: The Article II Independent-State-
  Legislature Notion and Related Rubbish, 2021 Sup. Ct. Rev. 1 
  (2021), submission.............................................  1618
Bohnhorst, Mark and Fitzgerald, Michael and Soifer, Aviam, Gaping 
  Gaps in the History of the Independent State Legislature 
  Doctrine: McPherson v. Blacker, Usurpation, and the Right of 
  the People to Choose Their President (2022), Mitchell Hamline 
  Law Review, submission.........................................  1651
Coenen, Dan T., Constitutional Text, Founding-Era History, and 
  the Independent State-Legislature Theory, September 19, 2022, 
  University of Georgia School of Law Legal Studies Research 
  Paper, No. 2022-10, submission.................................  1696
Mark S. Krass, Debunking the Nondelegation Doctrine for State 
  Regulation of Federal Elections, 108 Va. L. Rev. 1091 (2022), 
  submission.....................................................  1737
Justin Levitt, Failed Elections and the Legislative Selection of 
  Presidential Electors, 96 N.Y.U. L. Rev. 1052 (2021), 
  submission.....................................................  1788
Litman, Leah and Shaw, Katherine, Textualism, Judicial Supremacy, 
  and the Independent State Legislature Theory, June 20, 2022, 
  Wisconsin Law Review, submission...............................  1815
Marisam, Jason, The Dangerous Independent State Legislature 
  Theory, February 22, 2022, Michigan State Law Review, Vol. 
  2022, submission...............................................  1848
Nathaniel F. Rubin, The Electors Clause and the Governor's Veto, 
  106 Cornell L. Rev. Online 57 (2021), submission...............  1889
Carolyn Shapiro, The Independent State Legislature Theory, 
  Federal Courts, and State Law, February 28, 2022, University of 
  Chicago Law Review, submission.................................  1900
Eliza Sweren-Becker, Michael Waldman, The Meaning, History, and 
  Importance of the Electors Clause, 96 Walsh. L. Rev. 997 
  (2021), submission.............................................  1969
Franita Tolson, The `Independent' State Legislature in Republican 
  Theory, September 25, 2021, Harvard Journal of Law and Public 
  Policy, submission.............................................  2027
Weingartner, Michael, Liquidating the Independent State 
  Legislature Theory, September 25, 2021, Harvard Journal of Law 
  and Public Policy, submission..................................  2049
State of Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 36 S. 
  Ct. 708, 60 L. Ed. 1172 (1916), submission.....................  2114
Smiley v. Holm, 285 U.S. 355, 52 S. Ct. 397, 76 L. Ed. 795 
  (1932), submission.............................................  2117
Arizona State Legislature v. Arizona Independent Redistricting 
  Commission, 576 U.S. 787, 135 S. Ct. 2652, 192 L. Ed. 2d 704 
  (2015), submission.............................................  2124
Rucho v. Common Cause, 204 L. Ed. 2d 931, 139 S. Ct. 2484 (2019), 
  submission.....................................................  2161
Zagarri, Rosemarie, The Historian's Case Against the Independent 
  State Legislature Theory, October 12, 2022, Boston College Law 
  Review, submission.............................................  2192

 
 THE INDEPENDENT STATE LEGISLATURE THEORY AND ITS POTENTIAL TO DISRUPT 
                             OUR DEMOCRACY

                              ----------                             


                        THURSDAY, JULY 28, 2022

                          House of Representatives,
                         Committee on House Administration,
                                                    Washington, DC.
    The Committee met, pursuant to call, at 12:55 p.m., in Room 
1310, Longworth House Office Building, Hon. Zoe Lofgren 
[Chairperson of the Committee] presiding.
    Present: Representatives Lofgren, Raskin, Butterfield, 
Aguilar, Scanlon, Leger Fernandez, Davis, Loudermilk, and 
Steil.
    Staff Present: Jamie Fleet, Democratic Staff Director; 
Khalil Abboud, Deputy Democratic Staff Director; Dan Taylor, 
Senior Counsel; Sean Wright, Senior Elections Counsel; 
Giancarlo Pellegrini, Elections Counsel; Peter Whippy, 
Communications Director; Sean Jones, Professional Staff Member; 
Andrew Garcia, Staff Assistant; Lauren Doney, Deputy Chief of 
Staff for Mr. Raskin; Kyle Parker, Chief of Staff for Mr. 
Butterfield; Alyssa Innis, Legislative Assistant for Mr. 
Aguilar; Keanu Rivera, Legislative Assistant for Ms. Scanlon; 
Tim Monahan, Minority Staff Director; Caleb Hays, Minority 
General Counsel and Deputy Staff Director; Nick Crocker, 
Minority Deputy Staff Director; Gineen Bresso, Minority Special 
Counsel; Will Nietzel, Legislative Assistant for Mr. Steil; and 
Ashleigh Padgett, Legislative Assistant for Mr. Loudermilk.

  Opening Statement of Hon. Zoe Lofgren, Chairperson, a U.S. 
                 Representative from California

    The Chairperson. I understand the Ranking Member is on his 
way, but we will begin this hearing of the Committee on 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 note, we are holding this hearing both in person 
and remotely and in compliance with the regulations for Remote 
Committee Proceedings pursuant to House Resolution 8.
    Generally we ask 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 when 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.
    At this time, I ask unanimous consent that the Chair be 
authorized to declare a recess of the Committee at any point 
and that all Members have five legislative days in which to 
revise and extend their remarks and have any written statements 
be made part of the record.
    And, without objection, that is so ordered.
    The independent State legislature theory holds that each 
State's legislature has the exclusive authority to regulate 
Federal elections under the United States Constitution.
    The theory is not grounded in history, precedent, or logic, 
but it has gained an increasing following in some sectors of 
America over the past twenty years, and its adherents may 
include some current Supreme Court Justices.
    In this upcoming term, the Supreme Court will hear the case 
of Moore v. Harper, in which the North Carolina Supreme Court 
struck down the State legislature's gerrymandering of the 
State's congressional districts. The State Supreme Court, of 
which my colleague from North Carolina was once an esteemed 
member, relied on various provisions of the State's 
constitution as the basis for its decision. The United States 
Supreme Court will decide whether those provisions of the North 
Carolina Constitution apply to Federal elections at all.
    We are here today to examine this legal theory; to discuss 
the historical evidence, or lack thereof, supporting it; and, 
perhaps more importantly, to explore the dramatic 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 and some 
are appointed. Some are single individuals; some are boards but 
none are the State's actual legislature. This makes sense. 
Professional, nonpartisan election administration is a 
cornerstone of the modern American right to vote.
    Depending on how the Court resolves this upcoming case, 
that entire apparatus could vanish overnight, at least for 
Federal elections, which I would say is fairly important, and 
State politicians 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 
it and the failed 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 Constitution's 
Elections Clause was to avoid repeating that mistake. The 
independent State legislature theory 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 
lack 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 legislature theory is part of a broader plan to seize 
control of elections.
    In that sense, the theory is linked to the Big Lie, former 
President Trump's scheme to violate the Electoral Count Act and 
to send the election back to the State legislatures, and to the 
election subversion bills we see around the country that shift 
power away from professional election administrators towards 
politicians.
    That makes the theory dangerous and disruptive to American 
democracy, and we hope to explore that point in today's 
hearing.
    I now would recognize the Ranking Member, Mr. Davis, for 
his opening statement.
    [The statement of the Chairperson follows:]

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Opening Statement of Hon. Rodney Davis, Ranking Member, a U.S. 
                  Representative from Illinois

    Representative Davis. Thank you, Madam Chairperson.
    Today's hearing topic is one that many Americans are 
unfamiliar with, mostly because it is a complicated legal 
theory that is hard to define. You see, if you ask Democrats 
what ``independent State legislature theory'' means, you will 
get one answer; if you ask Republicans, you will get something 
different.
    This theory focuses on the Constitution's use of the word 
``legislature'' and what that means--specifically, how much 
authority is given to a State's legislature to determine 
election law.
    So, as a Committee, we should be using this as an 
opportunity to gather the facts, not make any accusations or 
insinuations.
    I say that because I know that some on the Left, including 
sanctioned Democrat lawyer Marc Elias, are already setting the 
stage ahead of 2024, suggesting this theory is all a 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 use this 
theory as a, quote, ``doomsday''-type scenario to fundraise and 
an excuse to cover their favorite topic, President Trump and 
the 2020 Presidential election, all to support the January 6th 
Committee's investigation.
    But no matter how the Left tries to spin it, Republicans 
believe that the Constitution is clear. Article I, Section 4 
states, ``The times, places, and manner of holding elections 
for Senators and Representatives shall be prescribed in each 
State by the legislature thereof, but the Congress may at any 
time, by law, make or alter such regulations.''
    Further, the Presidential Electors Clause states, ``Each 
State appoint in such manner as the legislature thereof may 
direct a number of electors.''
    So, this shouldn't be controversial. Republicans and 
Democrats should both agree that States have the primary 
authority to establish election law and administer Federal 
elections and that Congress plays a secondary role.
    This is why, yesterday, I introduced the American 
Confidence in Elections Act--it is the ACE Act--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.
    The ACE Act ensures States maintain primary authority over 
elections while providing them with the tools they can quickly 
implement to restore voter confidence and election integrity. 
And it also removes outdated Federal policies standing in their 
way.
    The Constitution divides authority between Congress and the 
States. That is why the bill is coupled with model State 
legislation for State legislatures 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 their ballot 
should be counted according to law. Unlike the partisan H.R. 1 
that was crafted behind closed doors, my bill has been drafted 
publicly over the course of two years and is the product of 
feedback and ideas from a large and diverse set of Members of 
Congress, stakeholders, Secretaries of State, State 
legislators, and local election administrators across eighteen 
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 Presidential election.
    I invite any of my colleagues across the aisle to join me 
in supporting this bill that empowers States to run free, fair, 
and secure elections, elections that promote voters' confidence 
and drive strong turnout.
    House Administration Republicans will continue to champion 
policies that respect the primary role of States over elections 
and ensure that it gets Congress out of the way.
    And thank you again, Madam Chairperson. I yield back.
    [The statement of Representative Davis follows:]
 
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    The Chairperson. The gentleman yields back.
    I will now turn to our witnesses, who I will introduce in 
just a minute.
    I would just note for our 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 five 
minutes, and your full written statement will be made part of 
the record.
    So welcome to each of our witnesses and thank you for 
taking the time to be with us today.
    Joining us are Professor Richard H. Pildes from the NYU 
School of Law, Professor Carolyn Shapiro from the Chicago-Kent 
School of Law, and Eliza Sweren-Becker, Counsel with the 
Brennan Center for Justice.
    Professor Pildes is the Sudler Family Professor of 
Constitutional Law the NYU School of Law and is one of the 
Nation's leading scholars in constitutional law and a 
specialist in legal issues concerning democracy.
    A former law clerk to Justice Thurgood Marshall, he has 
been elected to the American Academy of Arts and Sciences and 
the American Law Institute and has also received recognition as 
a Guggenheim Fellow and a Carnegie Scholar.
    In dozens of articles and his acclaimed casebook, ``The Law 
of Democracy,'' he has helped create an entirely new field of 
study in law schools. His work in 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 in 
democratic institutions, and similar issues.
    Carolyn Shapiro is a Professor of Law at the Chicago-Kent 
College of Law. She is the Founder and co-Director of Chicago-
Kent's Institute on the Supreme Court of the United States. 
From 2014 through 2016, she served as Illinois Solicitor 
General while on leave from the law school, and is a former law 
clerk to Associate Justice Stephen Breyer.
    Her scholarship is largely focused on the Supreme Court, 
its relationship to other courts and institutions, and its role 
in our constitutional democracy. She teaches classes in 
legislation and statutory interpretation, constitutional law, 
employment law, and public interest law and policy.
    Finally, Eliza Sweren-Becker is a Counsel with the Brennan 
Center for Justice, where she focuses on voting rights and 
elections. Ms. Sweren-Becker recently co-authored an article 
examining the history and original intent of the Constitution's 
Elections Clause.
    Prior to joining the Brennan Center, she was a litigation 
associate in private practice at Boies Schiller Flexner, LLP, 
and served as a law clerk to the Honorable Christina A. Snyder 
of the United States District Court for the Central District of 
California.
    She received her J.D. from Harvard Law and a master's 
degree in public policy from the Harvard Kennedy School.
    Professor Pildes, you are now recognized for five minutes 
for your testimony.

   STATEMENTS OF RICHARD PILDES, SUDLER FAMILY PROFESSOR OF 
  CONSTITUTIONAL LAW, NEW YORK UNIVERSITY SCHOOL OF LAW, NEW 
                            YORK, NY

    Mr. Pildes. Thank you, Chairperson Lofgren and Ranking 
Member Davis and the Committee, for giving me this opportunity 
to testify.
    I will address two issues in my opening remarks: First, 
what are the potential practical implications should the 
Supreme Court recognize the independent State legislature 
theory? And second, what is the historical evidence either for 
or against the recognition of that theory?
    In 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 create an independent State 
legislature. There are several different versions of such a 
potential doctrine, as the Chairperson and the Ranking Member 
acknowledged, and they have quite different practical 
implications. Thus, if the Court were to recognize the 
doctrine, the question of its scope would be just as important 
as whether there is such a doctrine at all.
    On the first issue, the most extreme version of such a 
doctrine would maintain that State legislatures cannot be bound 
by the substantive provisions in State constitutions or by 
voter-initiated enactments when States regulate national 
elections. If the Court were to embrace that version, here are 
just a few of the provisions that State constitutions or voter 
initiatives have adopted that could not be applied in Federal 
elections.
    Voters in Maine, Alaska, California, and Washington have 
enacted top-two or top-four primary structures or ranked-choice 
voting for Federal elections. Those rules could not be applied 
unless State legislatures chose to adopt them through 
legislation.
    Similarly, in some State constitutions are these 
initiatives that establish the criteria to be used in 
redistricting, such as whether districts must be compact, 
whether partisan considerations are banned or constrained, what 
weight should be given to competitiveness in drawing districts, 
and whether there should be independent commissions to do 
redistricting.
    In addition, some State constitutions contain provisions 
banning straight-ticket voting, or establishing voter 
identification requirements, or creating all-mail voting 
systems, or banning voters who fail 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.
    A decision from the Court endorsing this extreme version of 
the doctrine would be highly destabilizing since all these 
rules could no longer be applied to Federal elections after the 
legislation.
    A second, somewhat less extreme version of such a doctrine 
would be that State courts can enforce big constitutional 
provisions that are very specific, such as the provision that 
State and Senate vacancies must be filled by a special 
election, but cannot enforce more general State constitutional 
provisions, 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 
whole host of ambiguous questions that would be difficult to 
resolve in a consistent and principled way. Just how specific 
does a State constitutional provision have to be for State 
courts to be able to enforce it against State legislatures in 
national elections?
    A third version of the doctrine would focus not on State 
constitutions but the more routine acts of State election 
administration or judicial interpretation of State election 
laws. In this version, the U.S. Constitution would be violated 
if these actors strayed too far from the text of State election 
laws in applying them.
    The practical consequence of this version 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 could try to exploit by 
running to the Federal courts to second-guess these judgments 
about the meaning of State election laws.
    Now let me very briefly turn to the issue of what the 
historical basis is, if any, for the independent State 
legislature theory in these various versions. I will focus only 
on the State constitutional provision question.
    First, scholars agree there is no evidence that the Framers 
expressly understood the Constitution to create such a 
doctrine. Indeed, what we have in the evidence is the opposite. 
At least five State constitutions in the founding era imposed 
substantive constraints on such legislation.
    Second, before the Civil War, scholars have uncovered only 
one mention, not in any court decision, of such a doctrine.
    Third, until the 2000 Bush v. Gore decision, there doesn't 
appear 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 Courts in the Civil War era and a congressional 
resolution of a contested election during that period did 
recognize such a doctrine. But even if those pieces of evidence 
support the doctrine, the overwhelming weight of historical 
practice illustrates that State constitutions throughout 
American history have imposed substantive constraints on State 
legislation for national elections.
    And, in sum, the practical consequences should the Court 
recognize 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.
    [The statement of Mr. Pildes follows:]

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    The Chairperson. Thank you very much, Professor.
    I would now like to ask Professor Shapiro to give her 
testimony for five minutes.

 STATEMENT OF CAROLYN SHAPIRO, PROFESSOR OF LAW AND ASSOCIATE 
  DEAN FOR ACADEMIC ADMINISTRATION AND STRATEGIC INITIATIVES, 
            CHICAGO KENT COLLEGE OF LAW, CHICAGO, IL

    Ms. Shapiro. Thank you, Chairperson Lofgren, Ranking Member 
Davis, and distinguished Members of the Committee.
    The independent State legislature theory, or the ISLT, can 
take a variety of forms, as everybody acknowledges, and during 
the 2020 election litigation, some Supreme Court Justices 
appeared to embrace among the most extreme versions, such as 
second-guessing State courts' interpretations of their own 
laws.
    Almost every version of the ISLT starts with the claim that 
the Elections and Electors Clauses, which give State 
legislatures the authority to regulate Federal elections, mean 
that, when legislatures do so, what their own State 
constitutions require or prohibit does not matter.
    Nothing in the clauses compels that reading. An at least 
equally natural reading recognizes that legislatures are 
creatures of their constitutions and so may make laws only as 
allowed by them.
    Historical understanding and practice overwhelmingly 
support this latter view. A few highlights:
    From the time of the founding, State constitutions have 
regulated Federal elections. Between 1789 and 1803, at least 
six State constitutions regulated whether elections should be 
by ballot 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, too, has deferred to State constitutions when serving 
as the judge of its own elections.
    ISLT proponents point to a handful of State 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 in 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 Chief Justice Rehnquist's concurring opinion in Bush v. 
Gore, where it is presented as a bald 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 aspect of those 
laws as violating the State constitution, the ISLT might 
require that the law nonetheless remain in effect for Federal 
elections. Depending on the specific provisions, this would be 
at best confusing and unwieldy, at worst impossible.
    The same is true for statutory construction. The maximalist 
ISLT might require a different interpretation of the same 
statute to apply to Federal elections than to State elections. 
The ISLT would thus disrupt and undermine State election 
administration.
    Despite rhetoric supporters use promising that the ISLT 
promotes predictability, it actually throws out centuries of 
State court precedent interpreting and applying State 
constitutions, including, for example, precedent establishing 
predictable approaches to the constitutional guarantees to free 
or equal elections that appear in more than half of State 
constitutions and have a history dating back to the founding 
era.
    The ISLT also rejects longstanding State jurisprudence on 
statutory interpretation and might require ignoring precedent 
construing identical statutory language.
    Likewise, despite rhetoric supporters use promising that 
the ISLT promotes political accountability, by undermining 
expectations and longstanding practice, it actually makes it 
harder for voters to know what their legislatures have done.
    And by turning every question about State election law into 
a Federal constitutional question, it shifts decision-making 
about the meaning of State election law away from State courts 
and elections 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 avert many of the worst 
implications of the ISLT as well as to protect democracy in 
other ways, and I urge you to use that power.
    Thank you.
    [The statement of Ms. Shapiro follows:]

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    The Chairperson. Thank you very much.
    And, finally, we will hear from Ms. Sweren-Becker her 
testimony for five minutes.

 STATEMENT OF ELIZA SWEREN-BECKER, DEMOCRACY PROGRAM, BRENNAN 
              CENTER FOR JUSTICE, WASHINGTON, D.C.

    Ms. Sweren-Becker. Chairperson Lofgren, Ranking Member 
Davis, and Members of the Committee, thank you for the 
opportunity to testify about this dangerous and unprecedented 
legal claim being pressed by conservative activists.
    As you know, the Supreme Court agreed to hear Moore v. 
Harper, a case in which some North Carolina legislators have 
asked the Court to embrace the so-called independent State 
legislature notion. This is the radical claim--``theory'' is 
too generous a word--positing that the Constitution removes the 
normal checks on State legislatures 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 and our multiracial democracy if the Supreme Court turns 
this fringe notion into law. Here are four examples of what 
this idea could allow.
    First, the notion would green-light partisan gerrymandering 
for congressional elections. A State legislature could draw an 
extreme partisan gerrymander without consequence, something 
that the State court would otherwise strike down as illegal 
under the State constitution.
    That is just as backwards as it sounds. State lawmakers 
could violate their own constitutions. Redistricting 
commissions in up to nine States would become defunct. Fair 
representation could become even more difficult, if impossible. 
That is because the Supreme Court already took Federal 
constitutional protections off the table, ruling in the Rucho 
case that Federal courts cannot stop partisan gerrymandering. 
The Court pointed to State courts as the answer. If State 
courts can't stop partisan gerrymanders, the tactic will 
thrive.
    Second, the radical claim will remove constraints on voter 
suppression. For example, a legislature could eliminate early 
voting, even if it is articulated in the State constitution and 
adopted by the people through direct democracy.
    The Governor would be unable to stop this decision, and a 
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 in State 
constitutions enacted by ballot initiative and implemented 
through administrative rules.
    Policies enacted through direct democracy, like mail 
voting, same-day 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 they properly registered to vote.
    A range of other policies established in State 
constitutions rather than legislation would be voided. 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 don't know what the law is, 
voters surely won't.
    Fourth, the notion would remove critical checks against 
election interference and sabotage. The radical idea could 
enable legislatures to manipulate election outcomes. For 
example, they could enact arbitrary rules for counting votes.
    The claim would invite legal challenges asking Federal 
courts to throw out ballots cast in reliance on constitutional 
provisions, laws enacted by ballot initiative, or policies 
implemented by election officials.
    To be clear, the independent State legislature claim is not 
a license to coup. Federal law prohibits State legislatures 
from overturning the results of elections. The notion would 
open the door to anti-democratic shenanigans and even failed 
efforts to manipulate our elections 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 that 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 John R. Lewis Act. The bill would 
set national standards for voting access, prohibit partisan 
gerrymandering, and add Federal protections against election 
interference and sabotage. This legislation is critically 
needed.
    Thank you.
    [The statement of Ms. Sweren-Becker follows:]

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    The Chairperson. Thank you very much.
    And thanks to each of one of our witnesses for their 
testimony.
    We are now at the time in the hearing when Members may ask 
questions of our witnesses for as much as five minutes. I would 
turn first to the gentleman from Georgia for his five minutes 
of questions.
    Mr. Loudermilk. Thank you, Madam Chairperson. It is a 
pleasure to be with all of you here today.
    And thank you to all our witnesses for being here. I was 
very intrigued with the testimonies there, especially with the 
extreme ISL theories that people are putting out there.
    But first let me say, I am proud to join with Ranking 
Member Davis and my good friend Mr. Steil and several others on 
a bill that we are pushing forward, the American Confidence in 
Elections Act, that takes meaningful steps to secure our 
elections while still respecting the federalist principles that 
our Framers put into the Constitution.
    As we discuss this ISL theory today, I think we should keep 
in mind that the versions that we have heard today include a 
very extreme version of this theory, and I don't want us to 
jump to conclusions that the Supreme Court would embrace an 
extreme version of this.
    Look, just as the U.S. Constitution is a restriction on the 
power of the Federal Government, including a restriction on the 
legislature, State constitutions are restrictions on the State 
power, including their legislatures. And those constitutions 
exist for a purpose. I agree wholly that a legislature cannot 
override their constitution without some amendment to that 
constitution.
    A lot of what I heard here explained today, ironically, 
sounds a lot about the arguments that our side made against the 
attempts for a Federal takeover of State elections by H.R. 1 
from my colleagues on the other side of the aisle.
    So, I agree with much of what you are saying, but we need 
to be clear that, I think, the more extreme version--we should 
not just assume the Supreme Court is going to agree with that.
    I do have a few questions, though.
    Ms. Sweren-Becker, when the Framers penned the Elections 
Clause in Article I, Section 4, what did they understand the 
term ``legislature'' to mean?
    Now, I know from reading Federalist Papers and writings of 
our Framers and our Founders, they chose their words very 
carefully for specific meaning. So, what do you understand that 
the term ``legislature'' meant to them when they framed the 
Constitution?
    Ms. Sweren-Becker. Thank you for that question.
    I have had the pleasure of looking through this historical 
record, looking at the debate during the Constitutional 
Convention on the Elections Clause and the ratification debates 
in every State when they were discussing the Elections Clause.
    What is clear is that the Framers were trying to constrain 
the power of State legislatures. They wanted to make sure that 
these State lawmakers, who they deeply distrusted, would not 
have exclusive power to regulate Federal elections. And that is 
why the second part of the Elections Clause gives Congress the 
power to make or alter Federal election law.
    It is, therefore, absurd and, sort of, directly contrary to 
the historical record to think that those very same Framers 
would have given to the legislature alone in a State the power 
to regulate Federal elections without the normal checks and 
balances----
    Mr. Loudermilk. If I could get you to narrow down to answer 
the question, what does the term ``legislature'' 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 legislatures. So, they were more concerned with the 
power of the Federal Government overriding State legislatures.
    And look, I am not defending the ISL theory here. My 
question is, what did they mean by, in Article I, Section 4, 
the term ``legislature''?
    Ms. Sweren-Becker. I appreciate your question. I think we 
have a different reading of the historical record.
    But, nevertheless, one thing that I think is instructive in 
understanding what the Framers meant when they used the word 
``legislature'' is what the Framers meant when they used the 
word ``Congress'' in the other part of the Elections Clause.
    Nobody understands that Elections Clause to give Congress 
the power to enact laws that don't 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 can't adjudicate.
    The same is true----
    Mr. Loudermilk. I need you to hurry up and get to the point 
here, because----
    Ms. Sweren-Becker [continuing]. For ``legislature'' in the 
first part of the Elections Clause.
    Mr. Loudermilk [continuing]. We are quickly running out of 
time here.
    I still don't know that we got the answer about what 
``legislature'' means.
    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, Noah Webster 
worked with many of them to create the first dictionary of 
American English language, the Webster's 1828 dictionary, 
which, in the forward, he said was to help future generations 
of Americans interpret.
    The term ``legislature'' in that document, as he is saying 
our Founders intended it to mean, is ``the body of persons in a 
state or a kingdom invested with the power to make and repeal 
laws.'' He then goes on and explains what the State 
legislatures mean, which is ``those elected bodies within the 
State with the power to pass and repeal laws, as constrained by 
the Constitution.''
    So, I am sorry I wasn't able to get to any other questions, 
but I think we need to make sure that, if we are interpreting 
``legislature'' 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 
clause and not another.
    With that, Madam Chairperson, yield back.
    The Chairperson. The gentleman's time has expired.
    Mr. Raskin is recognized for five minutes.
    Mr. Raskin. Thank you, Madam Chairperson, for calling this 
very important hearing.
    And Professor Becker--am I calling you the right name?
    Ms. Sweren-Becker. Sweren-Becker. But I am not a professor, 
so I can't claim that title.
    Mr. Raskin. Ms. Sweren-Becker. Forgive me. I don't have my 
glasses on, so I just--okay.
    I want to go right to that point you were making before. If 
you 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 time, 
place, manner of elections and so on, over the States, if 
necessary.
    Did that give Congress the power or the right to do that 
outside of a Presidential signature on bills we are passing? 
Outside of judicial review? In other words, is there an 
independent Congress doctrine too?
    Ms. Sweren-Becker. Thank you for that question, 
Representative.
    And, of course, there is no independent Congress doctrine. 
The Framers used 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 to 
Congress.
    Mr. Raskin. So, in other words, if we were to exercise our 
power under the Elections Clause to, you know, legislate just, 
say, the Voting Rights Act, for example--I know that was 
Section 5 of the 14th Amendment, but I think Elections Clause 
was implicated too--when it was passed by Congress, it still 
needed to be signed by the President, right, even though it 
said Congress had the power to do it?
    And so, similarly, State legislatures passing election laws 
have always sent their bills to their Governor, under their 
State constitutions, for signatures. Isn't that right?
    Ms. Sweren-Becker. Yes.
    Mr. Raskin. So, the independent State legislature doctrine 
would suddenly announce that more than two centuries of State 
election laws are somehow unconstitutional or at least went 
through an unnecessary step of being signed by the Governor and 
operating under State constitutional veto requirements and so 
on. Is that right?
    Ms. Sweren-Becker. Yes. This theory, if it were embraced, 
would nullify hundreds of election laws that have been in place 
for many, many years, in some cases centuries.
    As my colleagues reflected, State constitutions were 
adopted around the time of the ratification of the Constitution 
that, themselves, constrained State legislatures. Everyone 
understood at the time that State legislatures are creatures of 
their own constitution and are constrained by them, including 
requirements for gubernatorial veto and judicial review.
    Mr. Raskin. Okay.
    But 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?
    Ms. Sweren-Becker. Yes, there are certain instances.
    Mr. Raskin. What are some examples of that?
    Maybe I could come to you, Professor Shapiro.
    Ms. Shapiro. Yes. The legislature acts independently when 
it is, for example, being asked to ratify a Federal 
constitutional amendment. Or during the time when Senators were 
directly chosen, appointed by State legislatures, they acted--
--
    Mr. Raskin. Before the 17th Amendment.
    Ms. Shapiro. Before the 17th Amendment.
    Mr. Raskin. Yes.
    Ms. Shapiro [continuing]. They acted independently.
    And the Constitution uses different verbs to describe what 
the legislatures do in those contexts. As opposed to saying 
``direct,'' for example, as the Electors Clause uses, they use 
words like ``appoint,'' which is what the Constitution referred 
to before the 17th Amendment with respect to appointment of 
Senators.
    And so, the word ``legislature'' must 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.
    Mr. Raskin. Okay.
    So, let's see. Professor Pildes, if you are still out 
there, I would like to ask you about that very point.
    The claim seems to be made now that, if the State 
legislatures can act independently for any specific 
constitutional purpose, they must be able to act independently 
for all constitutional purposes, including the primary purpose 
of ordinary lawmaking. Is that right?
    The Chairperson. Professor----
    Mr. Raskin. You need to unmute, Rick, I think.
    Mr. Pildes. I thought I had. Is that unmuted?
    The Chairperson. Yes, we can hear you now.
    Mr. Pildes. Sorry about that.
    I think your statement is correct, because if we take 
Congress, when Congress proposes constitutional amendments, 
Congress does not have to present those to the President. And, 
in fact, the Bill of Rights was not presented to the President 
before it was adopted or sent out to the States to be ratified.
    So that is an example in the Federal context where we 
wouldn't, of course, conclude that Congress, when it exercises 
its powers to regulate Federal elections, doesn't have to 
present a bill to the President. So, I think that is a very 
good example from the Federal context.
    I think Justice Ginsburg's opinion in the Arizona 
independent redistricting case does acknowledge that, before 
the 17th Amendment, State legislatures might have been 
independent in their role as elector but not in their role of 
regulating and ordinary lawmaking.
    The Chairperson. The gentleman's time has expired.
    We turn to Mr. Steil for his questions for five minutes.
    Mr. Steil. Thank you very much, Madam Chairperson. 
Appreciate you holding today's hearing.
    I want to start just by jumping back to yesterday for a 
second on the importance of making sure that our elections are 
free, fair, and secure and note that I am proud to join the 
Ranking Member, Representative Davis, and my colleague Mr. 
Loudermilk, to my right, in introducing the ACE Act to inspire 
voter confidence and election integrity. I think it is an 
important piece of legislation that was introduced yesterday 
and one that I would encourage folks to look into.
    I would like to direct my questions on today's topic to Mr. 
Pildes if I can.
    We have heard testimony today from witnesses stating that 
the independent State legislature theory is one that could 
impact our elections process. So, I would like to start by 
asking you if there is any specific legal precedence affirming 
legislators do not have the absolute power in elections. What 
have the courts held on this issue?
    Mr. Pildes. Well, the courts have certainly always applied 
State constitutions to assess State election laws. The courts 
have never second-guessed the interpretation or administration 
of State election laws through the Federal Constitution.
    We didn't get any indication of that until the three-
Justice concurrence written by Chief Justice Rehnquist in Bush 
v. Gore. And no Federal court has ever adopted the doctrine, at 
least up to this point. Just a few opinions, statements, and 
that concurring opinion.
    Mr. Steil. So, you know that they have never held it. Have 
they ever held against the independent State legislative 
theory?
    Mr. Pildes. I don't think the issue, as far as I know, was 
ever presented to Federal courts before it was raised in 2000.
    Mr. Steil. Okay.
    Mr. Pildes. So, the practice has been to not apply to such 
a doctrine.
    Mr. Steil. Understood. But never ruled on. That is fine. 
Just helpful for us to understand the topic. Never been ruled 
on.
    I want to walk through a couple implications here.
    How would independent State legislative theory impact 
States that have independent redistricting commissions? We 
heard a previous witness reference the impact that it may have.
    Mr. Pildes. Well, the Supreme Court has already upheld the 
power of voters through voter initiatives to create independent 
commissions for congressional districting. That was a five-to-
four decision. There has been discussion about how solid the 
precedent will remain, but that is certainly the precedent 
today.
    Mr. Steil. Okay.
    Shift gears slightly. How would ISLT theory impact a 
State's election certification process?
    Mr. Pildes. Well, it depends, of course, on exactly which 
version of the theory we are talking about. But since 
certification is primarily administration, interpretation, it 
would only be impacted if the Supreme Court were to conclude 
that there is a Federal role in second-guessing the application 
and interpretation of State law.
    Mr. Steil. Okay.
    Third question. How would it impact a State constitutional 
amendment that would be approved by the voters through a ballot 
measure?
    Mr. Pildes. Well, the first answer is that, if State 
constitutional provisions are off the table altogether, then 
those would fall along with the general State constitution. 
Maybe there is an attraction among some to a doctrine that the 
State constitution is fine but not voter-initiated amendments, 
but I am not sure exactly how one would defend that 
distinction.
    Mr. Steil. I appreciate your insights today.
    And I appreciate you holding the hearing, Madam 
Chairperson. I will yield back.
    The Chairperson. The gentleman yields back.
    Mr. Butterfield is recognized for five minutes.
    Mr. Butterfield. Thank you very much, Madam Chairperson, 
for convening this very important hearing.
    And thank you to the witnesses for your testimony. I 
represent one of thirteen districts in North Carolina. And, as 
all of you certainly know, the Rucho case originated in my 
State, as well as the Moore v. Harper case. And so, I am a 
little bit more acquainted with these cases than, I would say, 
most Members of Congress. And so, I am real concerned about 
this.
    Some years ago, we challenged the congressional map based 
on partisan gerrymandering. We took the case into Federal 
court, and the lower Federal courts ruled in our favor and 
ruled that the State legislature engaged in partisan 
gerrymandering and that it was a violation of the Federal 
Constitution.
    And 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, in that Rucho opinion, the Court 
suggested that it may be cognizable under the State 
constitution but not under the Federal Constitution.
    And so, as the years went on, that is when the Moore v. 
Harper case came along, and so we decided to do what the 
Supreme Court had suggested. 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 gerrymander and directed 
legislature to fix it, and the legislature had to follow the 
directive of the court.
    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 U.S. Supreme Court, and now the Supreme Court 
is 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 you are 
still with us online--are we overreacting? Are we overreacting? 
Or is it likely that the Supreme Court will decide that State 
legislatures can enact election laws affecting Federal 
elections and deny State courts the authority to make a 
constitutional ruling? Are we overreacting, or is this real?
    Mr. Pildes. Representative Butterfield, let me start by 
saying I have been writing about North Carolina redistricting 
since the early 1990s, and I was actually part of the legal 
team representing Common Cause in the Rucho case that you 
described. I----
    Mr. Butterfield. I was involved in the Gingles case. You 
may recall Gingles. I was very much involved in that.
    Mr. Pildes. Oh, absolutely.
    Mr. Butterfield. Yes.
    Mr. Pildes. Absolutely.
    I think, as all these questions have indicated, it is very 
difficult to say, because there are a whole variety of versions 
of this doctrine that have been hinted at. And some would have 
extremely destabilizing consequences, to be sure. And most of 
them would have significantly destabilizing consequences. And 
there are lots of legal uncertainties that would be unleashed 
under any version of this doctrine.
    So, yes, I do think it is a concern, about what the 
doctrine might be, if such a doctrine is endorsed by the Court. 
And exactly, you know, how destabilizing it would be, how much 
litigation it would unleash--there is no question that 
disappointed candidates and voters will run to Federal court to 
try to overturn State court interpretations.
    And so, you know, there is a lot of uncertainty here, but 
there is----
    Mr. Butterfield. So you really believe----
    Mr. Pildes [continuing]. No question it is a destabilizing 
prospect.
    Mr. Butterfield. So you are saying that you really believe 
that the 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?
    Mr. Pildes. Well, I am not going to make any predictions 
here, but I can tell you that Justice Alito and Justice Thomas, 
at the least, have signaled that they are very disturbed by--
this is in the context of Pennsylvania--State court 
constitutional rulings about State election law.
    So there is no question that that is a serious issue before 
the Court, and there are some indications that at least some 
Justices are prepared to accept such a view.
    Mr. Butterfield. Thank you, Madam Chairperson. I yield 
back.
    The Chairperson. The gentleman yields back.
    Mr. Aguilar is recognized.
    Mr. Aguilar. Thank you, Madam Chairperson.
    Ms. Sweren-Becker, leading up to January 6th, the former 
President and his loyalists invoked ISL theory. And I know that 
there are different doctrines out there, as we have heard, but 
that was cited as part of the creation of, quote, ``fake 
electors'' that would be submitted to Congress to get the then-
Vice President Mike Pence to send the results of 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, and others--to undermine legally cast ballots of 
millions of Americans?
    Ms. Sweren-Becker. Thank you for the question.
    To be clear, the independent State legislature notion, if 
adopted, would not let State legislatures send a fake slate of 
electors to Congress to be certified. As I said, the theory is 
not a license to coup.
    You are correct that President Trump relied on the theory 
in challenging policies that were in place in States across the 
country, trying to get ballots thrown out that were 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.
    Mr. Aguilar. If the Supreme Court gives credence to extreme 
versions of this theory, are there scenarios where, you know, 
alternate slates are submitted and the President who fails to 
win 270 electoral votes could be certified as President?
    Ms. Sweren-Becker. As I said, the theory wouldn't permit 
that kind of scenario, but it does open the door to efforts by 
State legislatures to attempt those kinds of anti-democratic 
shenanigans. Federal law would prohibit that from happening, 
but legislatures might try to change the rules for vote 
counting, for example, or it might try to institute sham audits 
to affect the results of elections.
    So, there are other ways that legislatures might try to 
interfere with elections even beyond those fake electors and 
that strategy.
    Mr. Aguilar. Thank you.
    Professor Shapiro, we talk often in this committee room 
about our local officials, election administrators, many of 
them who are, you know, 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 and essential voting rights regulations, which State 
election officials administer, are gutted in response to some 
of these theories?
    In your written testimony, you claim that some of those 
local election officials might struggle based on the 
interpretation of these theories.
    Ms. Shapiro. 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 courts.
    In Pennsylvania, for example, in 2020, there was litigation 
about whether or not county clerks could have dropboxes in 
which voters could put their mail-in ballots, and the 
Pennsylvania Supreme Court concluded that the statute should be 
interpreted to allow those dropboxes at the discretion of the 
local officials.
    Under the ISLT, or at least some of the extreme versions of 
it, the Federal courts would be able to come in and revisit 
that essentially de novo and say that that is not how they read 
the statute, even though under normal circumstances State 
courts have the final say over what State statutes mean and 
discretion is delegated to election officials so that they can 
do their job.
    Mr. Aguilar. What could this mean to communities of color?
    Ms. Shapiro. Well, I think to the extent that communities 
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.
    That means that they may need to exercise discretion in 
ways that perhaps in a small rural county that is predominantly 
White there just--the same issues simply don't arise, and so 
the need to exercise discretion in these ways 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, incredibly resource-intensive any time somebody 
doesn't agree with a particular discretionary decision or even 
sees it as strategically beneficial to challenge the decision, 
which will deter officials from making those kinds of 
decisions.
    Mr. Aguilar. Thank you so much.
    I yield back, Madam Chairperson.
    The Chairperson. The gentlemen's time has expired.
    I have just a couple of questions.
    You know, Article I says that the time, places, and manners 
will be prescribed in each State. And every State has decided 
to have an election, votes by their citizens. That is every 
single--all fifty 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 don't like the result, the 
legislature appoints who they want.
    So, Professor Pildes, I mean, I would like you to comment 
on that assertion--and some State legislators did indeed 
suggest that during the last Presidential election--and your 
comment on whether reform of the Electoral Count Act could play 
a role in remedying such a threat to the right of Americans to 
select their government.
    Mr. Pildes. Thank you for that question.
    So, first, even as things stand today, Congress decides the 
date on which electors must be appointed. That is a 
constitutional power Congress has. And it means that State 
legislatures cannot after election day suddenly decide that 
``We don't want a popular vote; we are going to appoint the 
electors.'' That is unconstitutional.
    The Electoral Count Act reform, at least the bipartisan 
bill that has been publicly introduced, would help solidify 
that structure by making it clear--in ways that I think is 
already in the original act, but this would make it much more 
clear--that States have to act pursuant to laws and procedures 
established in advance of the election.
    And that is what we all want. We want clear rules, 
established in advance of the election, that can't be 
manipulated after the fact for one partisan purpose or another.
    So, I do think the bill that has been introduced would help 
secure the process against those kinds of----
    The Chairperson. 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 we will be discussing with our Senate 
counterparts how to reach consensus. I am sure that we will 
come to a meeting of the minds in a very cordial way.
    Here is a question for anyone. You know, I have often 
thought when some of the rhetoric that was pursued, that the 
State legislators could simply send in their own electoral 
slate despite what the vote had been in their State, what the 
role of Article IV, Section 4 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 throwing out the votes of 
its voters and imposing its own decision instead.
    Does anybody have a comment on that?
    Ms. Shapiro. I would say first, I agree with my colleagues 
that the State legislatures, under the Constitution, can't 
after the fact change the rules about how the electors are 
chosen.
    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 courts the ability to 
adjudicate disputes about the election after the fact and give 
the power to determine election contests to the legislature 
itself.
    Now, you are asking if that might violate the Guarantee 
Clause. The Guarantee Clause, of course, has been held to be 
nonjusticiable, but surely it provides Congress with the 
opportunity to regulate how these types of decisions are made. 
I think it would be well within congressional power to say that 
the Guarantee Clause requires----
    The Chairperson. Well, my question isn't whether it is 
justiciable, but when the Court looks at this in the whole 
context of the Constitution, to elevate State legislatures 
without looking at a framework that is a republican form of 
government would be inconsistent with that amendment, wouldn't 
it, with that section of the Constitution?
    Ms. Shapiro. I think it would be inconsistent, but the 
Court has not shown itself to be very interested in looking to 
the Guarantee Clause when it interprets other relevant clauses 
of the Constitution. I will just reiterate, though, you have 
the power to rely on the Guarantee Clause.
    The Chairperson. I understand.
    My time has expired, and I am going to turn the gavel over 
to Mr. Raskin to recognize our new Member.
    Mr. Raskin [presiding]. Thank you, Madam Chairperson.
    I recognize the gentlelady from Pennsylvania, Ms. Scanlon, 
for five minutes.
    Ms. Scanlon. Thank you, Mr. Raskin.
    You know, I have gotten a lot of questions from 
constituents over the last few weeks in the wake of the writ of 
certiorari for--or review for the case raising this ISL theory. 
So, I am trying to explain to constituents even as I 
investigate it further.
    We do that in Pennsylvania through the lens of what has 
been going on in Pennsylvania for the last few years. We have 
had statutory gerrymandering. We have had strict voter ID laws. 
Those have both been pushed back through litigation. And then, 
of course, during the 2020 election, we found our results under 
attack, without basis, but nevertheless under attack through a 
variety of court cases--dozens of them, in fact.
    I think you raised that in your testimony, Ms. Shapiro. Can 
you talk about the impact of that theory and what we need to be 
concerned about?
    Ms. Shapiro. Well, you need to be concerned about, among 
other things, all these decisions that the State courts have 
made and all the precedent that exists that the State courts 
rely on and, indeed, that the legislature relies on, whether 
those will continue to be effective with respect to Federal 
elections.
    You also need to be concerned about whether the rules might 
be different for Federal elections versus State elections, 
regardless of whether the legislature actually passes different 
laws, because they might be interpreted differently or because, 
to the extent that the State court strikes down aspects of the 
laws with respect to--the Federal courts might say they still 
must be in effect with respect to Federal elections. So, there 
could be an enormous amount of chaos, to put it mildly.
    Ms. Scanlon. And that has been one of the problems we have 
had to address, is that there has been chaos with changing 
rules, impacting the electorate and people not being certain of 
what is going forward. And, of course, that damages our 
institutions in general.
    Do you have any recommendations on what we should do, as 
Congress, to protect the right to vote considering the kinds of 
things we have seen happening in Pennsylvania?
    Ms. Shapiro. Well, I certainly--with respect to the ISLT, 
Congress could, for example, pass a law that says that, with 
respect to State laws governing Federal elections, the 
presumption is--or the actual rule is that they necessarily 
incorporate State constitutional provisions in all manner of 
ordinary judicial review, statutory interpretation, et cetera.
    You could pass a law that limits the timing under which 
Federal courts, including the Supreme Court, can intervene, 
especially after a State court has already ruled on a 
particular issue.
    You could also address other issues. You could, as you 
considered doing in H.R. 1, address extreme partisan 
gerrymandering. And, you could do that even with respect to 
State legislative offices, in my view, under the Guarantee 
Clause.
    Ms. Scanlon. Yes.
    I mean, it has been interesting. We hear a lot of, sort of, 
specious arguments that the Elections Clause, Article I, 
Section 4, and whether Congress has the power to address what 
is happening in our elections in the States. Can you just 
summarize that quickly?
    Ms. Shapiro. There is no question that the Congress has the 
power to address congressional elections. Under Article I, 
Section 4, it expressly gives Congress the power to do so. The 
Congress also has the power under the Guarantee Clause to 
guarantee a republican form of government, and, in fact, has 
the obligation to do so.
    There is nothing in the Constitution to suggest that the 
Federal Government can't 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.
    Ms. Scanlon. Thank you.
    I would defer to our constitutional expert, but I believe 
my recollection is that it was misconduct in South Carolina 
that led the Framers of the Constitution to insert that clause 
and make sure----
    Mr. Raskin. Yes, the Elections Clause.
    Ms. Scanlon. Yes.
    Mr. Raskin. I will take your word for it; I can't 
remember----
    Ms. Scanlon. Okay.
    Mr. Raskin [continuing]. What State it was in. But I know 
the power is there and the purpose is clear.
    I am going to ask a few more questions, and----
    Ms. Scanlon. Yes. I would yield back.
    Mr. Raskin [continuing]. And we will open it to Mr. Steil 
and anybody else.
    So, the gentlelady yields back.
    Let's see. Under the extreme versions of this independent 
State legislature hypothesis--and I have not read the 
literature about it, and I would be interested to know whether 
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 overthrowing instant 
runoff voting, without sending the legislation to the Governor 
of the State under the State constitution?
    Ms. Sweren-Becker.
    Ms. Sweren-Becker. Thank you for the question.
    And I will first note that there is a wealth of scholarship 
rebutting this independent State legislature theory. So, there 
is lots of evidence----
    Mr. Raskin. But is there anything on the other side? I 
mean, are you guys just debating a mirage here? Or is it just 
an idea that popped up in the Supreme Court but there is no 
support for it either historically or academically?
    Ms. Sweren-Becker. There is no serious evidence on the 
other side. There is no support historically; there is no 
support legally. The Supreme Court has repeatedly rejected this 
idea in precedent after precedent after precedent.
    Mr. Raskin. Recently as the Arizona case, right?
    Ms. Sweren-Becker. Yes. As recently as 2015, the Court 
rejected this theory outright.
    Mr. Raskin. Okay. But is someone claiming somewhere that a 
legislature could adopt election laws without sending it to the 
Governor of the State under the State constitution?
    Ms. Sweren-Becker. That is the logical extension of this 
theory.
    Mr. Raskin. Wow.
    Ms. Sweren-Becker. The notion that--oh, excuse me. Sorry.
    Mr. Raskin. Yes. No, that was just a ``wow.''
    Ms. Sweren-Becker. The notion that it is the legislature 
alone, outside of the ordinary lawmaking process and without 
the ordinary checks and balances that apply to the State 
lawmaking body, that is the premise of this independent State 
legislature notion. And it is just as radical and shocking as 
you suggest.
    Mr. Raskin. Okay.
    Professor Shapiro, you mentioned something in passing that 
really 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.
    I mean, are you saying that the turbo-charged version of 
the independent State legislature theory would allow them to 
say, we are carving out an exception to Marbury v. Madison and 
there wouldn't even be Federal constitutional review?
    Ms. Shapiro. No, I don't think that State legislature can 
prevent Federal constitutional review. But it certainly could, 
under the theory, under the turbo-charged version, prevent 
State courts----
    Mr. Raskin. But it sounds like it doesn't even have to, 
that that is the force of the independent State legislature----
    Ms. Shapiro. Yes.
    Mr. Raskin [continuing]. Doctrine. In fact, it couldn't do 
it even if it wanted to, right? In other words, if the 
legislatures said, ``And we will leave this up to an 
administrative agency to interpret the particular times or 
placement of voting precincts'' or what have you, they couldn't 
do that?
    Ms. Shapiro. Under some versions of the theory. Justice 
Gorsuch suggested that he might be open to that version in his 
opinion in one of the North Carolina cases in 2020.
    Mr. Raskin. The legislature of the State, under this more 
expansive notion, must act as a legislature and as an 
administrative agency and as its own court interpreting the 
State constitution, although the State constitution may be 
completely irrelevant here.
    It is as if they are saying the State legislature acts in a 
completely different capacity and exists as a different kind of 
beast when it governs election law, and State constitutional 
law is just irrelevant.
    Am I over-reading that, Ms. Sweren-Becker?
    Ms. Sweren-Becker. No, that is exactly right. The logical 
extension of the theory is, there is no separation of powers, 
the judiciary doesn't get to say what the law is, the 
Constitution has no bearing on what the legislature can do, nor 
does the Governor, but only in the instance of regulating 
Federal elections.
    Mr. Raskin. Yes.
    Ms. Sweren-Becker. And that exception makes absolutely no 
sense.
    Mr. Raskin. I just want to say that, you know, 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 in 
control there, let's dramatically inflate the power of that 
office or person.
    It is sort of like what happened on January 6th, where it 
was said, well, the Vice President has the power to count 
Electoral College votes and unilaterally, without Congress 
being involved, reject Electoral College votes, and essentially 
determine who is going to be President. And there was never any 
basis for that. Nobody ever claimed it. It is surprising nobody 
would have noticed it for more than two centuries of American 
constitutional and senatorial and congressional practice. And 
yet that was a claim being made.
    It was a coup in search of a legal theory, as Judge Carter 
said from California. I am afraid that this a little bit of a 
political fix in search of a legal theory too.
    I am happy to recognize my friend Mr. Steil.
    Mr. Steil. Thank you very much.
    Let's just dive back in here. We are on round two.
    Ms. Sweren-Becker, you gave testimony regarding independent 
State legislature theory, claiming that the theory, if adopted 
by the courts, would deprive voters of free and fair elections, 
and you pivoted to January 6th and the fact that States have 
enacted various election reform measures.
    Can you confirm, would your position on ISL be the same for 
Democratically controlled States, often with veto-proof 
legislatures, like Illinois or Maryland?
    Ms. Sweren-Becker. Thank you for the question.
    What I think you are pointing out here is that the 
independent State legislature theory is bad for Americans, no 
matter what side of the aisle you are on. It would remove----
    Mr. Steil. And is that your position?
    Ms. Sweren-Becker. Absolutely.
    Mr. Steil. Okay.
    Shift slightly. You also mentioned that, if ISL was adopted 
as a legal doctrine, then State legislatures would not have a 
check and balance on their power. Is that a fair analysis of 
your statement?
    Ms. Sweren-Becker. Yes. This notion removes checks and 
balances that apply to State legislatures.
    Mr. Steil. Do you think that voters play a powerful check 
on State legislators, since they are the ones who elect them?
    Ms. Sweren-Becker. Yes, absolutely. And that is why it is 
so concerning that this notion could remove the power of voters 
to enact laws through direct democracy.
    Mr. Steil. I appreciate your comments.
    Mr. Chair, I yield back.
    Mr. Raskin. Thank you very much.
    And I don't know, Ms. Scanlon, did you have any further 
questions?
    Ms. Scanlon. No.
    Mr. Raskin. All right. Well, in that event, we are going to 
come to a close here.
    I think that all 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. I 
am glad we seem to have bipartisan agreement about the 
strangeness of this doctrine.
    I want to thank all the witnesses for their valuable 
testimony, and I want to thank the Members for their excellent 
questioning today.
    Members might have additional questions, going forward, for 
the witnesses. And, if so, we will ask you to respond in 
writing if you would. The hearing record will be held open for 
those responses.
    Mr. Raskin. And, without objection, the Committee on House 
Administration now stands adjourned.
    [Whereupon, at 2:07 p.m., the Committee was adjourned.]

      

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