The Fringe Legal Theory Heading to the U.S. Supreme Court

By Caroline Sullivan

A dark blue web of connected images, inlcuding: North Carolina's congressional map, the nine U.S. Supreme Court justices, a NYTimes homepage with the words "TRUMP INCITES MOB" and Jan. 6 imagery, the outside of the North Carolina Supreme Court, Sidney Powell, Article I of the U.S. Constitution, a memo from John Eastman, and the Bush v. Gore Supreme Court opinion.

Over the past few weeks, the U.S. House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol has revealed new details about the extent of former President Donald Trump’s role in the attempted insurrection. 

Trump legal advisor John Eastman wrote a memo that spelled out a frightening, unconstitutional plan of how former Vice President Mike Pence could declare Trump the winner of the electoral college and the presidency. Eastman opens his memo with these words: “Article II, § 1, cl. 2 of the U.S. Constitution assigns to the legislatures of the states the plenary power to determine the manner for choosing presidential electors.”

What’s implied here by Eastman is the most extreme version of a constitutional theory that, up to the present day, has gained no real footing in the legal world. The theory, known as the independent state legislature (ISL) theory, swirled on the fringe of the right-wing for nearly two decades. Now, the U.S. Supreme Court will hear a case next term that embraces it, with significant implications for the future of American elections. Here’s what you need to know. 

What is the independent state legislature theory?

The ISL theory is rooted in two clauses in the Constitution: 

  • The Elections Clause in Article I 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 the U.S. Congress issues its own rules.
  • The Presidential Electors Clause in Article II gives authority to “Each State [to] appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” in selecting the president.

The ISL theory interprets the word “legislature” in these clauses to mean legislature, and legislature alone. The current understanding is that “legislature” represents the state’s holistic lawmaking process, including the governor’s veto and state court review. If the ISL theory is validated, state lawmakers would have remarkable power to set federal election rules without oversight from state courts or beholden to their state constitutions.

This theory has been outrightly rejected by the Supreme Court — in 1916, and a century later in 2015 — but has its modern origins in a concurring opinion in Bush v. Gore (2000). So far, the ISL theory’s interpretation of the Constitution, including in several lawsuits pushed by Trump allies before and after the 2020 presidential election, has not stuck. Now, the ISL theory is directly implicated in a redistricting case out of North Carolina, Moore v. Harper, that the Supreme Court just selected to hear next term.

Why North Carolina? Why redistricting? A quick explanation of how Moore v. Harper ended up before the Supreme Court.

In late 2021, the North Carolina Legislature drew new political lines as part of the decennial redistricting process. After being challenged in state court, the North Carolina Supreme Court struck down the congressional, state House and state Senate maps for being partisan gerrymanders that violated the North Carolina constitution. A court-appointed redistricting expert then redrew a fair congressional map that remains in effect only for the 2022 elections.

It sounds like a simple case of judicial review — the courts interpreted their state constitution and found that an act by the Legislature was in violation of it.

But the GOP leaders in the North Carolina Legislature didn’t accept this result; they tried to get the U.S. Supreme Court to step in. In an emergency motion to the Supreme Court, going through what’s known as the Court’s “shadow docket,” North Carolina Republicans argued that the state courts exceeded their authority by imposing a congressional map for federal elections. This is the request that invoked the ISL theory.

While the Supreme Court denied this shadow docket request, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, dissented from the order. “And if the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts… I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits,” wrote Alito in his dissent. Justice Brett Kavanaugh agreed with the denial, but wrote separately to indicate his interest in taking up the case on the Court’s merits docket — which is exactly what the Court did just over a week ago. 

Unlike other appellate courts, the Supreme Court is not required to hear cases (the Court hears around 80 per year, selected from over 7,000 cases that it is asked to review). As such, the seemingly simple decision of what cases the Court decides to hear is consequential, and often hints at the majority’s priorities for the upcoming term. In granting the North Carolina GOP’s petition on June 30, at least four justices agreed that the ISL theory poses an important, unresolved issue that requires the attention of the Court. What we don’t yet know is how justices will ultimately cast a vote or what lines they may draw in doing so. 

What’s at stake?

Not only is the ISL theory in contradiction with recent precedent, there appears to be little to no historical basis for the argument. But that doesn’t mean our democracy is safe from a right-wing majority on the Court embracing it. If endorsed, state courts could lose the power to do their jobs — interpreting state law and enforcing their state constitutions — in the sphere of elections. State legislatures could set federal voting and election rules and draw congressional maps without that important oversight. At its strongest, the ISL theory also threatens gubernatorial veto power, citizen-led ballot measures and independent redistricting commissions.

Additionally, state legislatures aren’t the bastion of representative democracy that ISL theory proponents illustrate. In the past decades, state legislatures have suffered from extreme partisan gerrymandering. Currently, Democrats hold control of legislatures in just 17 states, compared to Republicans in 31 states; two legislatures have split control. Coupled with the high percentage of GOP legislators in key swing states that have tried to discredit or overturn the results of the 2020 presidential election, the ISL theory interpretation would allocate unprecedented power to these anti-democratic forces.

As far as the Eastman memo and his plan for state legislatures to completely disregard the will of the people after an election, most scholars conclude that is an even more extreme interpretation and likely outside the scope of the ISL theory. However, the implications of the ISL theory are broad, and who’s to say that bad actors won’t change the “manner” of presidential elections before the election to grant themselves final say of the results.

The schedule for oral arguments in Moore v. Harper has not been set, but we can expect the final opinion at some point next spring. The fact that this radical theory has migrated from footnotes and far-flung lawsuits to the center of our political universe is highly concerning. We do not know how the justices will accept or apply the theory, but the stakes couldn’t be higher.