Michigan Republicans Resurrect Right-Wing Legal Theory Rejected by Supreme Court Last Summer

In its June 2023 decision in Moore v. Harper, the U.S. Supreme Court firmly rejected a right-wing legal theory touted by North Carolina Republican legislators that had the potential to fundamentally alter American democracy. 

Under the so-called independent state legislature (ISL) theory, Tar Heel State Republicans argued that the Elections Clause of the U.S. Constitution vests state legislatures with exclusive and independent authority to enact laws regulating federal elections. This would mean state legislatures could draw congressional districts free from state court review and compliance with state constitutional requirements.  

Indeed, the Court’s recent opinion in Moore was not the first time it rebuffed conservative legal arguments of that ilk: In a 2015 Supreme Court decision in Arizona State Legislature v. Arizona Independent Redistricting Commission, a 5-4 majority declined to endorse Arizona legislators’ argument that a voter-approved ballot initiative to amend the state constitution — by transferring redistricting authority from the Legislature to an independent commission — violated the Elections Clause. 

Just three months after the Court’s Moore decision, which largely built on its precedent in the Arizona case, Republican legislators in Michigan are attempting to resurrect the ISL theory in a new federal lawsuit, Lindsey v. Whitmer. While the new lawsuit is predicated on an ISL theory argument similar to what North Carolina Republicans recently raised in Moore, its primary objective — to undermine direct democracy — more closely tracks with Arizona Republicans’ failed legal efforts in the Arizona State Legislature case. 

In a wholesale attack on direct democracy, the Michigan lawsuit seeks to nullify two voter-approved state constitutional amendments that expand voting rights.

Brought on behalf of 11 Republican Michigan legislators, the new federal lawsuit deploys the specious ISL theory as the basis for a post hoc challenge to a set of pro-democracy constitutional amendments. Both of the challenged amendments were enshrined in the Michigan constitution via voter-approved ballot measures in 2018 and 2022, respectively. 

In addition to requesting that the court retroactively invalidate these two amendments, the Republican legislators challenge the “future use” of ballot measures that would enact amendments to the Michigan Constitution pertaining to the “times, places, and manner of federal elections.” 

The challenged 2018 amendment, which was handily approved by 67% of voters, imposed a host of pro-voting reforms that include: protecting the right to vote a secret ballot, ensuring military service members and overseas voters can obtain absentee ballots, automatically registering citizens to vote at the secretary of state’s office unless the citizen declines, allowing a citizen to register to vote anytime — including on Election Day — with proof of residence, providing all registered voters access to an absentee ballot for any reason and more. 

The efficacy of these pro-democracy reforms manifested in record-high turnout in the 2020 election, with absentee ballots constituting nearly 57% of all ballots cast and nearly 28,000 voters registering to vote on Election Day proper. 

Meanwhile, the 2022 amendment, which the lawsuit likewise asks a federal court to repeal, enhanced voting rights in the Great Lake State after being approved by 60% of voters. The amendment — among other provisions — recognizes the fundamental right to vote free from harassment, expands the early in-person voting period, provides voters with a right to request an absentee ballot and requires the state to fund prepaid stamps for absentee ballots. The amendment also provides a right for Michiganders to bring legal challenges against laws and policies that unreasonably burden the right to vote.

At the time Michigan voters passed both amendments, the state’s Republican-controlled Legislature remained preoccupied with imposing restrictions on voting. By exercising the right to direct democracy and overwhelmingly approving measures to make voting easier, Michiganders achieved policy goals that their former Republican-controlled Legislature refused to pursue. This past summer, Michigan’s now Democratic-controlled Legislature enacted a package of pro-voting legislation to implement many of the protections guaranteed under the 2022 amendment.    

The Republican plaintiffs base their arguments on the rejected ISL theory. 

Invoking the ISL theory, the Republican plaintiffs contend that voter-approved amendments regulating federal elections “are an unconstitutional usurpation of state legislator’s rights to participate in law-making decisions under the Elections Clause.” The GOP lawmakers interpret the Elections Clause to mean that the Michigan Legislature has exclusive authority — subject only to the governor’s veto — to set rules for federal elections, thereby precluding the use of citizen-approved ballot initiatives to enact state constitutional reforms in that arena. 

According to the plaintiffs, the voter-initiated ballot measure process “undermines” the Michigan Legislature’s lawmaking authority “because the direct democracy process involves no involvement or approval by the state legislators.” The Legislature should be the only “‘entity assigned particular authority by the Federal Constitution’ to regulate the time, place, and manner of federal elections,” the lawsuit states.

The Michigan legislators’ claims fly in the face of Supreme Court precedent. 

“The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections,” wrote Chief Justice John Roberts, author of the majority opinion in Moore. In Moore, the Court’s 6-3 majority spurned North Carolina Republicans’ contention that when state legislatures prescribe rules concerning federal elections, they should not be subject to state court judicial review or state constitutional constraints. 

Nevertheless, Michigan Republicans rely on the same core argument for their assertion that voter-approved constitutional amendments — in the context of federal elections — violate the Elections Clause by failing to involve state legislators.

Beyond flouting the Court’s mandate in Moore, Michigan Republicans’ claims contravene the Court’s decision in Arizona State Legislature, the underlying arguments of which precisely mirror those advanced in the new Lindsey case — that voter-initiated state constitutional amendments regulating federal elections run afoul of the Elections Clause. 

In its 2015 Arizona State Legislature decision, the Court dismissed as ahistorical Arizona lawmakers’ interpretation of the Elections Clause construing the word “Legislature” to exclusively mean the elected legislative body. The Court reasoned that excluding other components of the legislative process — including citizen-led initiatives — from the definition of “Legislature,” would “run up against the Constitution’s animating principle that the people themselves are the originating source of all the powers of government.” 

In line with a historically sound and “capacious” definition of the word “Legislature,” the majority ruled that the Elections Clause does not prevent states from using “citizen initiatives as an alternative legislative process.” 

Consequently, the Court affirmed the constitutionality of Arizona’s citizen-approved independent redistricting commission, holding that it was adopted through a valid form of lawmaking exercised by the people of Arizona. In doing so, the Court recognized that like the Legislature, the commission would be subject to state constitutional constraints.

Nearly eight years later, Michigan legislators are ignoring the Court’s binding precedent with the goal of eliminating the opportunity for Michiganders to amend their state constitution to protect and expand voting rights. 

Following the new lawsuit, pro-voting forces intervened to defend Michiganders’ rights to engage in direct democracy. 

On the heels of Michigan Republicans’ new legal challenge against Michigan Gov. Gretchen Whitmer (D) and other state officials, a coalition of labor, disability and retiree organizations — alongside individual voters — moved to intervene in the lawsuit. The groups seeking to intervene in opposition to the GOP plaintiffs include the Michigan Alliance for Retired Americans, the Detroit Downriver Chapter of the A. Philip Randolph Institute and Detroit Disability Power.  

In asking the court for permission to participate, the proposed intervenors maintain that “[t]hrough this action, Plaintiffs seek extraordinary and unprecedented relief” that “would gut Michiganders’ fundamental right to vote and eliminate their right to protect and expand voting rights, all based on a bogus legal theory that the Supreme Court rejected just this summer.” 

The pro-voting groups underscore how Republican legislators’ attempt to eviscerate direct democracy as it relates to federal elections “would entail extraordinary judicial interference with Michigan’s democratic processes.” Pointing to the fact that the Michigan Constitution has itself afforded Michiganders the right to amend their state constitution for over a century, the groups admonish the legislators’ brazen attempt to “to use the judiciary to undermine direct democracy.”

Republican legislators in Arizona, Michigan and North Carolina all share a predilection for ignoring the rule of law and upending voting rights. 

In Moore, North Carolina Republicans sought to prevent state courts from exercising judicial review of congressional districts enacted by state legislatures — a longstanding practice that ensures legislatures comply with their state constitutions. Now in Lindsey, Michigan Republicans wish to harness the power of federal judicial review to frustrate the ability of Michiganders to partake in certain forms of direct democracy, despite the Supreme Court’s rejection of these arguments in its Arizona State Legislature decision. 

While the desired anti-democratic ends of Republican legislators in Arizona, Michigan and North Carolina are all distinct, their ISL-theory-rooted arguments — both past and present — coalesce around a shared misreading of the U.S. Constitution’s Elections Clause and a blatant disregard for their own state constitutional requirements.