Do The Leftist Women Rallying Against This Legal Theory Realize It Gave Them The Right To Vote?

In the upcoming case Moore v. Harper, the U.S. Supreme Court will decide whether the term “state legislature” in the U.S. Constitution’s election clause gives state legislatures specific power over election law that cannot be taken away in accordance with the doctrine of “independent state legislature theory.” 

In this case, the Supreme Court is asked to decide whether the independent state legislature theory applies to the Constitution’s election clause. The case asks the court to decide whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives … prescribed … by the Legislature thereof” and replace them with regulations of the state courts’ own devising. The Constitution’s election clause reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

Notably, the Framers considered an alternative election clause proposal, the “Pinckney Plan,” which would have said, “Each State shall prescribe the time and manner of holding elections by the people…” and not use the term “legislature.” Pinckney’s text was not adopted in the election clause.

Leftist women’s groups have responded by launching a hyperbolic campaign against the doctrine. League of Women Voters’ CEO Virginia Kase Solomón claims, “The Independent State Legislature Theory is a dangerous, fringe ideology that leaves voters effectively defenseless from harmful election laws.” But what these women’s groups fail to mention is the U.S. Supreme Court relied on independent state legislature theory to grant women the right to vote over a century ago. 

The 19th Amendment to the U.S. Constitution says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” On June 4, 1919, the U.S. Congress passed the proposed amendment, but in order for a proposed amendment to become part of the Constitution, Article V requires ratification by “three fourths of the several states.” On Aug. 18, 1920, Tennessee became the 36th state (of the union’s then total 48 states) to ratify the 19th Amendment, satisfying the three-fourths requirement.

But a few months later, in Leser v. Garnett, Oscar Leser filed a lawsuit to prevent women from registering to vote by challenging the validity of the amendment’s ratification. He argued that the state constitutions of Tennessee and West Virginia did not grant their state legislatures the power to ratify. Without those states, the proposed 19th Amendment would not have sufficient support to satisfy the three-fourths requirement. To decide this question, the U.S. Supreme Court used independent state legislature theory. Under Article V, proposed amendments must be “ratified by the legislatures of three fourths of the several states.” Because the framers specifically used the term “legislature,” the court held that “the legislatures of Tennessee and of West Virginia had the power to adopt the resolutions of ratification.” 

The minimum number of ratifications was met, so the court held that the 19th Amendment “has become valid to all

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