Independent State Legislature Theory: What It Is and How It Will Affect The Future

After a tumultuous term, The United States Supreme Court returns from recess on the first Monday of October. Many contentious topics are on the docket, such as Affirmative Action, voting rights, and environmental acts. SCOTUS has agreed to hear Moore v. Harper, a case that could change the federal election processes as we know them and create new implications for our democracy. 

In Moore v. Harper, the North Carolina Supreme Court found that the state legislatures violated the North Carolina Constitution when redrawing voting districts in favor of one party, also known as partisan gerrymandering. The state Supreme Court argued that this act violated North Carolina’s “free elections” clause. On the other hand, petitioners believe the United States Constitution’s Elections Clause should bar the state Supreme Court from forcing the state legislature to redraw these boundaries. This is one form of the independent state legislature theory (ISLT) argument that SCOTUS will have to address within the case. 

The main issue with the ISLT is how the Elections Clause of the Constitution is interpreted. Article I, Section 4, Clause 1 states that “Times, Places, and Manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Interpretation of “the Legislature thereof” differs depending on whom you ask. Some interpret it broadly, keeping the standard lawmaking process for states. The process starts with a bill being introduced to the first chamber and assigned to a committee, where the committee debates the nature of the bill. The committee can kill or send the bill to the full House or Senate. Legislators will then debate the bill, either sending it to the second chamber, where the process is repeated, or to another committee where differences can be resolved between the two chambers. The governor will either sign the bill into law or veto the bill. Finally, legislators can either sustain the governor’s veto or override it. Others narrowly interpret the literature, implying that since state courts and governors are not mentioned in the text, this power solely belongs to legislators. The vague wording is also found in the Presidential Electors Clause, stating, “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”

If the Court were to accept the ISLT, varying consequences would follow. The apparent outcome for House and Senate elections would be the overturning of reforms restricting partisan gerrymandering. There would also be no power in state executive actions when an emergency such as the COVID-19 pandemic requires procedural changes. But the 2020 election and former President Trump’s advocates arguing for the election to be overturned sheds new light on the ISLT in federal elections. 

States already have the power of legislative selection: legislators will pick who casts the electoral votes instead of holding a presidential election. While it is virtually impossible that states would ignore the popular vote in today’s time, Trump supporters think differently. The Conservative Action Project, led by Ohio’s former Secretary of State, released a memo stating that “… state legislatures in the battleground states of Pennsylvania, Arizona, Georgia, Wisconsin, Nevada, and Michigan should exercise their plenary power under the Constitution and appoint clean slates of electors for the Electoral College to support Donald Trump.” Some may fear that an extreme abuse of power would come into play in future elections. At the end of the day, legislators cannot overturn the results of an election. Congress determines when elections take place. This power of time would bar the appointment of electors after Election Day.

How likely is it that the Court will adopt some version of the ISLT? When selecting cases for review, the highest Court must cast four votes to proceed with oral argumentation. Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh, and Neil Gorsuch voiced their curiosity about the theory in the Moore v. Harper case. It would take one additional vote to decide the case. The Court’s vote on introducing the case to the docket is not an outright acceptance of the theory. Still, even if the theory is adopted, our democratic process will not be destroyed. Necessary voting rights reforms will be lost, but a presidential election overturn will be nearly impossible.