The Conservative Case Against the Independent State Legislature Doctrine
The Supreme Court will decide whether power politics and partisanship will trump history, tradition, logic, and the text of the Constitution.
Legend has it that in 1823, during a game of school football (what we Americans call soccer) in the town of Rugby, England, a young man named William Webb Ellis picked up the ball and ran towards the opposition’s goal line. He was condemned, naturally, for cheating or, as the stories put it, for acting “with a fine disregard for the rules of the game.”
The result was minor chaos. Ellis was tackled by his peers. What emerged from those childish recriminations and confrontations was a new game, rugby, with entirely new rules. In intramural sports, changing the rules in the middle of the game can lead to innovation and invention. In politics, especially in a democracy, the results are likely to be much less desirable.
The Independent State Legislature theory (ISLT) of elections being advanced before the Supreme Court in Moore v. Harper is the William Webb Ellis of election law—an attempt to create new rules about elections in the middle of the game. Unlike Ellis’ actions, which were in the end of only modest historical consequence, accepting modern-day efforts to change election law will have catastrophic effects. Early next month, the Supreme Court will hear oral argument in Moore and decide whether or not we avert that catastrophe.
The ISLT finds its alleged origin in the text of the Constitution. The Elections Clause (Article I, Section 4) says: “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 . . . .” Then, the Electors Clause (Article II, Section 1) says: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” for the selection of a president.
In its strongest form, ISLT proponents say that this text means that state legislatures have plenary and exclusive power over the conduct of federal redistricting for Congress (the principal question at issue in Moore), the conduct of presidential elections, and the selection of presidential electors. The key to this argument is the alleged “exclusivity” of the legislature’s authority. Under a strong form of the ISLT, neither state election officials (acting pursuant to state law) nor even a state supreme court (interpreting state law and, if applicable, the state constitution) can supplant that legislative authority.
What this means, in practice, is a two-fold threat to democracy. First, it means that state courts cannot “change” what the legislature has enacted, and it is the legislature that can decide whether or not the courts are making a “change.” In Moore the question is whether the North Carolina Supreme Court allegedly improperly supplanted the gerrymandered districts drawn by the state legislature.
This part of the theory upends traditional conservative notions of judicial review, where the legislature sets the rules, but the courts serve as the ultimate arbiters of statutory and constitutional interpretation. This becomes much more insidious in the presidential election context. If, hypothetically, a court were to determine that state law required certain ballots to be counted in a way that might affect the outcome of an election, the legislature—under the doctrine established by ISLT—could intervene and direct a result in contravention of what the courts had determined. Put another way, the interpretation of a statute adopted by the legislature before an election—possibly ambiguous, possibly not—might be subject to partisan legislative review rather than more neutral judicial scrutiny. Alternatively, the U.S. Supreme Court could vacate the decision of the state supreme court interpreting the state law on the grounds that the state court’s intervention violated the ISLT theory of the Constitution.
This latter circumstance was, more or less, what almost happened in 2020. The Pennsylvania Supreme Court, by a vote of 4-3, interpreted state law and the state constitution to require the counting of late-mailed ballots, possibly in contravention of the state statute. Normally, such a decision would not raise eyebrows—state constitutions, of course, supersede state laws just as the federal Constitution supersedes federal laws. The question was whether, under the ISLT, the federal Constitution granted state election laws special status that made them immune to review under state constitutions. Though the Supreme Court declined to intervene, at least three Justices thought that that the ISLT offered a reason to reject the Pennsylvania Supreme Court’s view.
Second, and even more ambitiously, the ISLT opens up the possibility that a state legislature can overturn the decision of duly empowered state elections officials in deciding whom to seat as presidential electors. If, again hypothetically, a secretary of state certified a particular result, the state legislature would have the authority to independently determine that “fraud” had occurred and disregard the results determined by the state election authorities. And because the state courts could not intervene, it is likely that the legislature’s actions would prevail even if they were arbitrary, motivated by partisanship, and without any real evidence.
As the Brennan Center put it: “The nightmare scenario is that a legislature, displeased with how an election official on the ground has interpreted her state’s election laws, would invoke the theory as a pretext to refuse to certify the results of a presidential election and instead select its own slate of electors.” Here, again, there are echoes of 2020 when some of President Trump’s supporters (e.g., Mike Lee) were urging state legislatures to intervene and supplant the choices of state voters with those of the state legislative majority and, for example, send a Trump slate of electors in from Georgia. In short, under the ISLT, the will of the voters would potentially mean nothing—all presidential elections would, ultimately, be contingent on the political whims and prejudices of the then-dominant partisan state legislative majority.
No one seems seriously to doubt that, if a state legislature wanted to, it could change the current law and decide before an election to choose its electors without holding a popular vote. But such a decision would require state legislators to explain to their electorates why they were being disenfranchised en masse, making this option politically, but not legally, impossible. The ISLT would allow state legislators to decide after holding a popular vote to choose the electors themselves.
Say what you will about the ISLT as a political device for the accumulation of power, but there is absolutely nothing about the theory that ought to appeal to conservative lawyers. The hallmarks of conservative legal thought are textualism, originalism, historicity, and judicial modesty. The ISLT comports with none of these.
To begin with, consider the text of the Constitution. The question turns ultimately on the word “legislature.” Is it a reference to the legislature exclusively or is it intended to refer to each state’s general lawmaking processes, including all of the attendant limitations, like judicial review and the supremacy of state constitutions over state laws?
Those who would read the Constitutional provision as a grant of exclusive power to legislatures have significant textual challenges to overcome. To start with, the parallel provisions empowering Congress (say, to regulate interstate commerce) all come with an implicitly non-exclusive, non-plenary construction. Though Article I, Section 8 says that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises [and] regulate Commerce [and] coin Money” (along with many other enumerated powers), nobody has ever read the text to mean that these powers were exclusively Congress’s to exert and that they were not, for example, subject to presidential veto or judicial review.
The same must be true of the Elections Clause authorization of state legislative action. If a state constitution subjects general state legislation to a governor’s veto, would ISLT proponents say that election laws could not be blocked in the same way? And if state courts normally subject all other state legislative acts to review for compliance with their state constitutions, it seems odd indeed for this provision to supplant that general rule. In short, the textual reference to “legislatures” cannot be read as meaning “legislatures alone” when the reading most consistent with how the phrase is used elsewhere in the Constitution is as “legislatures subject to general lawmaking rules.”
Nor is the ISLT at all historical or originalist. If the measure of originalism is the practice at the time of the Founding, then the ISLT fails miserably. As Federalist Society co-founder Steven G. Calabresi and his two co-amici, Professors Akhil and Vikram Amar, have noted in a brief for the Court, in the immediate aftermath of the Constitutional Convention, every single one of the states that addressed the issue (some did not) adopted state constitutional amendments limiting state legislative authority to act in the federal elections.
If the federal constitution had truly been meant to divest states of the authority to limit state legislative control of federal elections, then every state that acted (many of which were led by Framers of the Constitution) seems to have completely misread the message. Of course, the opposite conclusion is far the stronger: The Framers knew, because they drafted it, that the Constitution’s elections provisions were not intended to give state legislatures exclusive, plenary authority in determining the “manner” of federal elections. Rather, as they demonstrated by their contemporaneous actions, the Framers readily understood that state legislative action would be subject to other state limits, such as a state constitution, the gubernatorial veto, and/or state judicial review.
Nor is adoption of the ISLT in the least bit consistent with the traditional conservative idea of a Court that acts with restraint and humility. It would, instead, be one of the most significant anti-federalism claims of federal judicial power in derogation of state authority ever witnessed in the history of the republic.
To begin with, it would require the Court to essentially overrule a decision from just seven years ago, Arizona State Legislature v. Arizona Independent Redistricting Committee. The Arizona legislature, having lost its power over redistricting through referendum, sued to reclaim its prerogative. It made the identical argument now pending before the Court—that the use of the phrase “legislature” in the Elections Clause meant that the Arizona could not adopt an independent redistricting commission.
The Arizona legislature lost. As the Court noted, referenda and direct lawmaking by the populace had been a part of the Arizona Constitution since the state was founded. Accordingly, the Court said: “our precedent teaches that redistricting is a legislative function, to be performed in accordance with the State's prescriptions for lawmaking, which may include the referendum and the Governor's veto.” Were today’s Court to reject this precedent, simply because its personnel had since changed, it would be the antithesis of conservatism and contribute further to the erosion of the Court’s legitimacy in the eyes of the public.
More to the point, however, were the Court to accept the ISLT now, it would be, as with William Webb Ellis, unilaterally changing the rules. At no time since the ratification of the Constitution 234 years ago has any court or legislature adopted the ISLT as law. For the Court to do so now would be as transformative and as radical as Ellis’s transformation of soccer into rugby. The difference, of course, is that Ellis merely gave us a new sport. Were the Court to accept the ISLT, it would give us a new country—one that would be recognizably less democratic and more partisan.