In December 2022, the U.S Supreme Court heard oral argument in Moore v. Harper, a landmark and potentially far-reaching case out of North Carolina about congressional redistricting. After the state Supreme Court struck down North Carolina’s gerrymandered congressional map, the Republican legislators who drew the map went to the U.S. Supreme Court to ask it to overturn the decision. In doing so, they invoked the fringe independent state legislature (ISL) theory to argue that the U.S. Constitution gives state legislatures unrestrained control over federal election rules, including the boundaries of congressional districts.
Then, last week, the Tennessee Legislature seized the national spotlight when the Republican supermajority voted to expel Reps. Justin Jones and Justin Pearson, two Black Democrats, for disrupting proceedings to protest gun violence after a deadly mass shooting at an elementary school in Nashville. The expulsions in Tennessee and a Supreme Court case from North Carolina may not, at first glance, have much in common. But a closer examination reveals that what happened in Tennessee last week undermines a key premise pushed by supporters of the ISL theory and underscores precisely how dangerous it could be if adopted by the Court.
Proponents claim that the ISL theory is more democratic and representative.
At its core, the ISL theory argues that the U.S. Constitution’s Elections Clause means that state legislatures — and only state legislatures — can make laws regulating federal elections. This differs from the standard interpretation, which provides a role for the governor’s veto, citizen-led ballot measures and rulings of state courts. By excluding all other parts of the state government, the theory could allow state legislatures to set election rules and enact congressional maps unchecked.
Arguments in favor of the ISL theory are often undergirded by appeals to democratic norms, suggesting that placing the power to govern federal elections solely in the hands of state legislatures is more in line with representative democracy. An example of this tendency is found in the brief submitted by the pro-ISL theory side in Moore, where they argue that the Founding Fathers “designed the legislative branch to function as ‘the grand depository of the democratic principle.’” Thanks to these “democratic bona fides,” according to the North Carolina Republican legislators pushing the theory, they should set the rules for elections. This idea is echoed in several of the amicus briefs submitted in support of the ISL theory, with one contending that “the selection of legislative institutions reflects the Framers’ ‘preference for the democratic process’ in regulating elections.” Since legislatures are theoretically accountable to the electorate, they should have primacy in running elections.
A similar idea is found in another case, this time out of Ohio, which also invokes the ISL theory. Like their counterparts in North Carolina, Ohio Republican lawmakers objected to an Ohio Supreme Court ruling overturning a partisan gerrymander and, in their request for the U.S. Supreme Court to take their case, used the ISL theory to argue that the state Supreme Court usurped the power of the legislature. They suggest that the appropriate remedy for a gerrymander is not court intervention, but instead just letting the voters “use their ballots to punish representatives who draw a map that they disapprove of.” Left unspoken is the assumption that state legislatures will actually be representative and democratic, attuned to the wishes of the electorate, and should therefore be the final arbiter on how federal elections should be run.
In both cases, the Republican lawmakers are essentially arguing that state legislatures don’t need constraints offered by state courts (and that the Framers wouldn’t have wanted to constrain legislatures anyway). Contrary to the warnings of ISL theory opponents, the lawmakers dismiss these concerns. It’s easy to imagine these legislators saying, in a patronizing tone, “don’t worry, state legislatures would never do anything undemocratic.”
Tennessee reveals these assurances to be nothing but empty promises.
In contrast to the lofty ideals espoused in these two ISL theory cases, what happened in Tennessee last week shows there’s nothing inherently democratic about state legislatures. Both Jones and Pearson were duly elected, chosen to be their communities’ voices in the state Legislature. Despite that, the Legislature removed them from their positions, stripping their constituents of their voices in the democratic process (albeit temporarily). In the subsequent days, reports emerged that the Legislature was threatening to withhold funding from Shelby County, home to Memphis, which Pearson represents, if they chose to reappoint Pearson to the Legislature.
Expelling duly elected representatives over political disagreements? Threatening to extort local governments to get what they want? With those actions, Tennessee is making a mockery of representative democracy.
It’s not just the Tennessee Legislature that has undemocratic tendencies. In Ohio, Republican leaders have been trying their hardest to gerrymander the state House and Senate maps to entrench their majorities — a fact they left out of their request to the U.S. Supreme Court. In Florida, Republicans are moving full steam ahead with a six-week abortion ban despite polling in 2022 that found that 67% of Floridians believe abortion should be legal in most cases.
Indeed, the Founding Fathers knew that state legislatures could be anti-democratic and would never have assigned them exclusive power over federal elections. As the anti-ISL theory brief in Moore notes, “multiple delegates [to the 1787 Constitutional Convention] warned of giving ‘undue influence’ over federal elections to state legislatures” and “the Framers worried that state legislatures might devise ‘subversive’ elections laws.” What happened in Tennessee is exactly the kind of machinations they feared.
A victory for the ISL theory would mean granting these undemocratic legislatures even more power.
The debates over the ISL theory can often seem arcane, a technical matter of constitutional interpretation. But carried to their logical conclusions, it could mean that state legislatures would be free to set federal election rules without constraints: not from the courts, not from the governor and not even from the state constitution.
But such a prospect could seem abstract if one thinks about some featureless, anonymized state legislature. To understand how dangerous the ISL theory is, think instead about what the Tennessee Legislature did last week. If the ISL theory is endorsed by the U.S. Supreme Court, the same legislative body that expelled two members for protesting inaction in the face of the gun violence would have total control over federal elections in the state. Does that really sound so benign?