Next month, the U.S. Supreme Court will hold oral argument in Moore v. Harper, a redistricting lawsuit out of North Carolina that gives the Court the opportunity to consider the fringe independent state legislature (ISL) theory. The theory, based on an interpretation of the Elections Clause in Article I and the Electors Clause in Article II of the U.S. Constitution, holds that state legislatures are the only part of the state government that may set the rules for federal elections.
Even though the Court likely won’t issue a decision supporting or rejecting the ISL theory until next year, this fringe theory is already popping up in court cases across the country. Democracy Docket tracked eight cases that mention ISL theory since the Court agreed to hear Moore in June.
Background: League of Women Voters of Utah v. Utah State Legislature is challenging congressional redistricting in Utah. The complaint alleges that the map approved by the Utah Legislature is a partisan gerrymander that favors Republicans by “cracking” non-Republican voters across districts in violation of the Utah Constitution. Litigation is ongoing.
How the ISL theory appeared: On July 21, 2022, Utah legislators filed a motion to pause the case pending the Court’s decision in Moore. They argued that if the Supreme Court adopts the ISL theory in Moore, Utah state courts “will be prohibited from reviewing Utah’s congressional map or granting Plaintiffs’ requested relief.” Following this line of thinking, the reasonable course of action would be to wait for a decision in Moore. The state court hearing the case, while acknowledging the impact Moore could have, rejected the legislators’ request on Aug. 22.
Background: Montana Democratic Party v. Jacobsen was a consolidated case that went to trial in August. The state Democratic party and other organizations challenged three Montana voter suppression laws: restrictions on Election Day registration, updated ID requirements to vote and a ballot assistance ban. After the trial, the trial court struck down all three laws for violating the Montana Constitution.
How the ISL theory appeared: The defendant in the case, Montana Secretary of State Christi Jacobsen (R), invoked the ISL theory to argue that the U.S. Constitution “restricts state court interference with state legislation regulating federal election procedures, even when based upon the Montana Constitution.” The state court rejected this argument, finding that it relied “on an incorrect reading of the Elections Clause” that “violates nearly a century” of precedent.
Background: Suttlar v. Thurston is a lawsuit filed on behalf of a group of Black Arkansas voters challenging the state’s new congressional map. The plaintiffs argue that the map dilutes the voting strength of Black voters by splitting them between multiple districts in violation of the Arkansas Constitution. Litigation is ongoing.
How the ISL theory appeared: The defendants filed a brief on Sept. 1, 2022 that directly mentions the ISL theory and argues that the state court “lacks jurisdiction” over the lawsuit because “the federal constitution bars state courts from interfering with a state legislature’s congressional redistricting decisions.”
Background: In Republican National Committee v. Chapman, Republicans challenged the authority of counties in Pennsylvania to adopt mail-in ballot cure procedures (the process for voters to fix minor errors on their mail-in ballots). The Commonwealth Court, one of the state’s intermediate appellate courts, declined to block cure procedures prior to the Nov. 8, 2022 elections, a decision the Pennsylvania Supreme Court then affirmed on Oct. 21. The case is currently back before the Commonwealth Court for litigation over the merits.
How the ISL theory appeared: In the Republicans’ original complaint, they argued that the counties’ decision to adopt cure procedures violated the Pennsylvania Legislature’s “plenary delegated authority to ‘prescribe’ the ‘Manner’ of such elections under the Elections Clause.”
Background: Weeks before the 2022 midterm elections, the Republican National Committee (RNC), Republican Congressional Committee, Republican Party of Pennsylvania and Republican voters filed Ball v. Chapman directly in the Pennsylvania Supreme Court to challenge guidance that directed counties to count all undated or incorrectly dated mail-in ballots. The state court ultimately issued a decision directing counties not to count these ballots.
How the ISL theory appeared: In their petition, Republicans relied on the ISL theory to argue against the guidance issued by the Pennsylvania Department of State and directly cited Moore. They contended that the guidance “violates the Elections Clause” because it “vitiate[s] the General Assembly’s date requirement.” Several of the amicus briefs in support of this position also raised ISL theory claims.
Background: Deas v. North Carolina State Board of Elections was filed by the RNC and the state Republican party against the North Carolina State Board of Elections (NCSBE) to challenge the NCSBE’s extension of the mail-in ballot return deadline and regulations over poll watchers in the November 2022 elections. A North Carolina judge blocked one out of the three regulations the Republican groups challenged.
How the ISL theory appeared: The Republican plaintiffs argued that the NCSBE’s changes violated the Elections Clause because “the NCSBE is not the ‘Legislature’ of North Carolina” and it therefore cannot set rules “inconsistent with the choices” of the General Assembly. However, the judge’s decision did not address the ISL theory claims raised by the Republicans.
Background: Neiman v. LaRose is a lawsuit filed on behalf of Ohio voters challenging the revised congressional map that Ohio used in this year’s elections. The lawsuit alleged that the enacted map violated Ohio’s anti-gerrymandering amendments. The Ohio Supreme Court struck down the map on July 19, 2022, requiring the state to redraw a map for 2024.
How the ISL theory appeared: On Oct. 14, 2022, Ohio Republican lawmakers filed a petition asking the U.S. Supreme Court to review the Ohio Supreme Court’s decision in light of the ISL theory. In asking the U.S. Supreme Court to hear the case, they argue that it is “an excellent companion to Moore that would allow the Court to more fully decide the extent to which a state court can usurp the legislature’s role in redistricting.” The legislators further contend “the Ohio Supreme Court disregarded the Elections Clause” in striking down the congressional map. The Supreme Court has yet to act on the petition.
Background: On July 22, 2022, the NCSBE denied the North Carolina GOP’s request to allow counties to use signature matching, the process by which election workers compare the signature on a voter’s ballot to the one on their voter registration. The GOP challenged this decision in state court through In re: Appeal of Declaratory Ruling from the State Board of Elections. On Oct. 3, a judge rejected the Republicans’ attempt to invalidate the NCSBE’s decision prior to this year’s elections.
How the ISL theory appeared: In addition to arguing the lack of a signature matching system violated the state constitution, the plaintiffs used the ISL theory to argue that the NCSBE’s decision “violated U.S. Const. Art. I § 4 by contradicting the General Assembly’s legislation” and “deprived” the Assembly “of [its] lawmaking powers.” In denying the Republicans’ requested relief, however, the judge ruled that they were “asking this Court to legislate” — something the ISL theory would preclude if it were accepted as law.
The breadth of cases where the ISL theory and Moore are already being invoked demonstrate just how destabilizing the theory could be if the U.S. Supreme Court adopts it. Such a move could let suppressive voter laws like Montana’s stay in effect, undermine efforts to rein in partisan gerrymandering in states like Ohio and Utah and create chaos over election administration rules. If the Court is serious about America’s democracy, it will reject this fringe theory.