How the ISL Theory Could Have Changed Recent Court Cases
During its 2022 term starting this fall, the U.S. Supreme Court will hear Moore v. Harper, a case that could advance the fringe independent state legislature (ISL) theory. The theory argues that state legislatures — and only state legislatures — are permitted to set the rules for federal elections unless Congress specifically does so itself. If adopted by the Court, the theory could have huge implications for American democracy and shape how our elections are run for years to come.
While we don’t know whether the justices will adopt this theory — and if they do, how they will define and apply it — we combed through our catalog of court cases, specifically looking for cases where the ISL theory, if adopted by the courts, may have affected the outcomes. We examined cases in both state and federal court that involved many different issues related to elections to demonstrate the potential far-reaching implications of the theory. Here are a few hypothetical examples.
League of Women Voters v. Pennsylvania
The congressional map Pennsylvania Republicans enacted in 2011 was heavily gerrymandered to favor them. Despite the state’s perennial competitiveness, Republicans consistently held 13 out of 18 districts after the 2012 elections. The League of Women Voters of Pennsylvania filed a lawsuit against the map in 2017, arguing that partisan gerrymandering violates the state constitution.
What the Court Ruled
In February 2018, the Pennsylvania Supreme Court agreed with the League, ruling that the congressional map was an extreme partisan gerrymander and violated the state constitution’s free and fair elections clause. The court eventually adopted its own, much fairer map that led to significant Democratic gains in the 2018 U.S. House elections.
Potential Impact of the ISL Theory
The ISL theory could have impacted the challenge to the Republican gerrymander in two ways. First, the theory could have prevented the state Supreme Court from using the state constitution to evaluate and strike down the legislatively drawn map for being a gerrymander. Second, even if the state court could apply its state constitution, the theory could have prevented it from drawing its own remedial map, requiring it to instead be drawn by the very Legislature that passed the first gerrymander.
Baber v. Dunlap
In 2016, Maine voters approved a ballot measure that enacted ranked-choice voting in the state’s federal elections, likely in response to a series of elections where the winning candidate won without a majority. The new system ensures that the winning candidate has a majority — but it also means the candidate with the most votes at first isn’t guaranteed to win.
The 2018 midterms were the first elections carried out with ranked-choice voting. In Maine’s 2nd Congressional District, incumbent Rep. Bruce Poliquin (R) received a plurality of first-choice votes — but not a majority — due to the presence of two independent candidates on the ballot. When the votes of the two independent candidates were redistributed, candidate Jared Golden (D) ended up ahead of Poliquin. In response, Poliquin’s campaign filed a lawsuit in federal court to prevent Golden from being certified as the winner.
What the Court Ruled
In Baber v. Dunlap, Poliquin and his allies argued ranked-choice voting violates the Voting Rights Act, Article I and the 14th Amendment of the U.S. Constitution. The court rejected all of their arguments, allowing Golden to be certified as the first winner of a ranked-choice election in Congress’s history. In ruling against Poliquin, Judge Lance E. Walker found that “[b]y requiring the concurrence of more than a plurality of voters, the People of Maine have not exceeded the authority vested in them” by the Constitution, meaning the adoption of ranked-choice voting did not violate the Constitution and it could remain in future Maine elections.
Potential Impact of the ISL Theory
Though Moore focuses on what limits state courts can place on state legislative acts, a separate question under the ISL theory is whether election rules passed by the voters through ballot measures are permissible. In 2015, the U.S. Supreme Court said it was. But that decision was 5-4 and the composition of the Supreme Court has since changed. If the Court decided that only legislatures — and not the citizens of a state voting on a ballot measure — can set election law, then the constitutionality of Maine’s ranked-choice voting for congressional elections would be in doubt. In 2018, this could have altered the outcome of this close House race.
League of Women Voters of New Hampshire v. Gardner
In 2017, New Hampshire enacted Senate Bill 3, which amended the state’s voter registration laws to require proof of residency. To vote, New Hampshire residents had to submit evidence of their domicile and, as if that wasn’t burdensome enough, the law also didn’t provide voters with clear guidance about what would count as proof of residency. Additionally, voters who registered within 30 days of an election and didn’t submit this proof faced criminal penalties. A group of college-aged voters then filed a lawsuit against S.B. 3.
What the Court Ruled
In 2021, the New Hampshire Supreme Court struck down the law in its entirety, finding that it “imposes unreasonable burdens on the right to vote” and violates the state constitution. As a result, New Hampshire voters no longer have to meet S.B. 3’s vague requirements to prove their residency.
Potential Impact of the ISL Theory
The Republicans’ preferred ISL theory could have made a straightforward ruling much more complicated if the New Hampshire Supreme Court had to follow it. Under the version of the theory that bars state courts from restraining how a legislature runs federal elections, the New Hampshire Supreme Court would not have been able to rely on the state constitution to strike down the residency requirement for congressional and presidential elections, but it still could have for state and local elections. New Hampshire could then have ended up with a dual election system — with different rules for federal elections than state elections, creating even more confusion for voters.
Pennsylvania Ballot Deadline Cases
In September 2020, the Pennsylvania Supreme Court extended the deadline to receive mail-in ballots in that year’s general election from 8 p.m. on Election Day to 5 p.m. on Nov. 6, three days after the election. Republicans challenged this decision in a variety of ways. A congressional candidate and several Republican voters filed a lawsuit, Bognet v. Boockvar, in federal court. At the same time, the Republican Party of Pennsylvania and the Trump campaign pursued a separate appeal of the Pennsylvania Supreme Court’s decision directly to the U.S. Supreme Court.
What the Court Ruled
The complaint in Bognet directly invoked the ISL theory by arguing the Pennsylvania Supreme Court did not have the power to change the ballot deadline the Pennsylvania Legislature had enacted. The plaintiffs argued that, under the U.S. Constitution, state courts “may not ‘prescribe’ ‘[r]egulations’ governing ‘[t]he Times, Places and Manner of holding Elections for Senators and Representatives’ or the ‘manner’ of appointing Presidential Electors.”
Similarly, the Republicans’ application to the U.S. Supreme Court appealing the Pennsylvania Supreme Court’s decision also invoked the ISL theory, arguing “the Supreme Court of Pennsylvania’s decision violates the Elections Clause, Article I, § 4, cl. 1 of the United States Constitution, by seizing the authority to set the times, places, and manner of federal elections from the state legislature.” The U.S. Supreme Court denied a request to pause the lower court’s decision (although Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas said they would have granted it). Later, after the Court declined to expedite the appeal process, Alito wrote that the case raised important constitutional questions and that “there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution.” Following the election, he also ordered the state to separate the ballots received after the original Election Day deadline from the others in case the ruling extending the deadline was eventually overturned. But ultimately it wasn’t — Bognet was dismissed as moot after losing at the district and appellate court levels and the Court declined to hear the Republican appeal of the Pennsylvania Supreme Court’s decision.
Potential Impact of the ISL Theory
If Justices Alito, Gorsuch, Kavanaugh and Thomas had prevailed, the Pennsylvania Supreme Court’s decision to extend the ballot receipt deadline could have been ruled unconstitutional prior to the election and the late arriving ballots could have been immediately discarded. While this wouldn’t have changed the results of the 2020 presidential election in Pennsylvania, this kind of meddling by the U.S. Supreme Court could prove decisive in future elections.
These cases demonstrate the huge implications the ISL theory could have on our democracy.
At its core, the ISL theory is about how the U.S. Constitution should be interpreted when it comes to running federal elections. But the theory’s implications extend far beyond mere interpretation of a couple of words in a 200-year-old document. As these cases demonstrate, the outcome of Moore v. Harper could impact practically every aspect of how our democracy functions, from requirements to vote to redistricting to even vote counting. If the U.S. Supreme Court endorses the ISL theory, efforts to rein in partisan gerrymandering, fight restrictive voting requirements and change electoral rules via ballot measure could all be in jeopardy.