The Constitutional Law Theory That Could Upend American Elections
Republicans are quietly advancing a theory that could radically change our electoral process. After their respective state Supreme Courts adopted new congressional maps, Republicans in North Carolina and Pennsylvania filed emergency applications in the U.S. Supreme Court asking it to block the maps from being used this year. They argued that only the Republican-controlled legislatures in both states — not the state Supreme Courts — could enact a congressional map, invoking a fringe constitutional theory known as the independent state legislature theory as justification. The theory argues that state legislatures have special authority to set federal election rules, free from interference from other parts of the state government. Despite running contrary to precedent and history, the Supreme Court appears dangerously close to adopting it — with potentially disastrous ramifications for democracy.
What is the independent state legislature theory?
The independent state legislature (ISL) theory is a right-wing constitutional theory about who has the power to set rules for federal elections. It’s based on an alternative interpretation of two clauses in the U.S. Constitution:
- Article I’s Election Clause states that the “Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof” unless Congress issues its own rules.
- Similarly, Article II directs “Each State [to] appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” to select the president.
The ISL theory interprets the word “legislature” in both of these clauses to mean that the state legislature — and only the state legislature — can make the laws regulating federal elections. This differs from the standard interpretation, in which “legislature” means the state’s general lawmaking process. This includes the governor’s veto, citizen-led ballot measures and rulings of state courts. By excluding all other parts of the state government, the theory would allow the state legislature to set election rules and congressional maps unchecked — not by the governor, the courts, the people or even the state constitution itself.
While the ISL theory does not currently carry any binding weight as precedent in legal decisions, it keeps popping up in the writings of Supreme Court justices. In Bush v. Gore, Chief Justice William Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, wrote that there are “a few exceptional cases in which the Constitution imposes a duty or confers a power” on the state legislature — and federal elections are one of them. The theory formed the basis of Chief Justice John Roberts’ dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission, where he argued that the transfer of redistricting power from the state legislature to a commission was unconstitutional because only “the representative body which makes the laws of the people” is permitted to draw new districts. In 2020, Justices Samuel Alito, Neil Gorsuch and Thomas expressed support for it by suggesting the Pennsylvania Supreme Court’s decision to modify the state legislature’s mail-in ballot deadline violated the U.S. Constitution. Meanwhile, more and more right-wing activists and legislators like those in Pennsylvania and North Carolina are turning to the theory when their efforts to gerrymander Republican majorities or pass restrictive voting laws are thwarted.
This theory could radically change American democracy.
If the Supreme Court ever endorsed this theory, it could completely upend American elections almost overnight. While the ramifications would depend on exactly how the Court applies it, some possible outcomes include:
- Independent redistricting commissions like Arizona’s would be unconstitutional.
- State courts would be unable to review laws passed by a state legislature that regulate federal elections, like when the New Hampshire Supreme Court overturned strict residency requirements for voting.
- Citizen-led ballot measures that modify elections, like Maine’s adoption of ranked-choice voting in 2016 or the top-four primary passed in Alaska in 2020, would be unconstitutional.
- Governors would not be able to veto election laws or congressional maps passed by a state legislature, like when Gov. Gretchen Whitmer (D-Mich.) vetoed a bill that limited absentee voting and strengthened voter ID requirements or when Gov. Tony Evers (D-Wis.) vetoed a new congressional map.
The most extreme form of the theory would allow state legislatures to ignore their own state constitutions when writing election laws, selecting presidential electors or drawing congressional maps. For example, the constitutions of North Carolina and Pennsylvania are currently understood to ban partisan gerrymandering through their free elections clauses. The ISL theory would let their state legislatures ignore these bans, with state courts powerless to stop them.
It’s unsupported by recent precedent and contrary to the historical record.
Despite the support the theory has garnered from some Supreme Court justices, the Court as a whole has never endorsed it. In 2015, a majority of the Court explicitly rejected the theory in Arizona State Legislature by upholding the state’s redistricting commission. In 2019’s Rucho v. Common Cause, the Court held that partisan gerrymandering is beyond the reach of the federal courts. At the same time, Chief Justice Roberts endorsed the ability of state constitutions to constrain partisan gerrymandering and wrote approvingly of ballot measures creating independent redistricting commissions in Colorado and Michigan, an implicit rejection of his dissent in Arizona State Legislature four years earlier. It would then be a major reversal of recent precedent for the Court to adopt the ISL theory.
A wealth of recent legal scholarship also casts doubt on its validity. One law review article points out that the Elections Clause was intended to limit — not empower — state legislatures because the founding fathers were worried that state legislators could try to meddle in the electoral process. To suggest the same clause blocks state constitutions and courts from restraining legislatures would be in diametric opposition to the framers’ intention. Another scholarly paper illustrates that the original, public meaning of the word “legislature” in the U.S. Constitution isn’t the standard dictionary definition but includes the powers, processes and constraints in state constitutions. As such, under the U.S. Constitution state legislatures don’t in fact have free rein to do as they please.
This theory isn’t going away anytime soon.
Even though the Court denied the North Carolina and Pennsylvania applications this month, Justices Alito, Gorsuch and Thomas once again dissented in favor of the ISL theory, writing that the Elections Clause “specifies a particular organ of a state government, and we must take that language seriously.” Although Justice Brett Kavanaugh didn’t join this dissent, he wrote separately that the Court needed to address the merits of the theory at some point. Thus, at least four current justices support re-examining the theory. They will have a chance to do so now that North Carolina Republicans have petitioned for a writ of certiorari asking the Court to hear their case’s merits — and it only takes four justices to grant one. Even if the Court ultimately doesn’t decide to take up the North Carolina case, it could take up another yet to come. If it does, we may wake up and find ourselves living in a very different democracy than we thought.