To protect their gerrymanders, Republicans try to revive a dangerous legal theory

Facing mounting setbacks to their nationwide gerrymanders, Republicans are dusting off a fringe legal theory to block voter referendums, court-ordered maps and other democratic safeguards that threaten their edge.

Across the country, Republican lawmakers are racing to redraw congressional maps ahead of the 2026 midterms — part of an aggressive effort pushed by President Donald Trump to protect the GOP’s razor-thin majority in the U.S. House.

Voters and courts are pushing back against some egregious GOP gerrymanders by striking down or threatening to block the use of those maps. In response, Republicans are escalating with a constitutional argument that could sideline those very checks.

In state after state, the battle is no longer just about how district lines are drawn, but about who gets a say in the process. 

As courts reject partisan maps and voters attempt to overturn them through referendums, Republican officials are turning to federal courts with a revived version of the Independent State Legislature (ISL) theory — a right-wing doctrine the U.S. Supreme Court already rejected in its most sweeping form, but is now being repackaged and pressed in new lawsuits. 

Utah GOP: challenging the courts

In Utah, Republican officials — including U.S. Reps. Celeste Maloy and Burgess Owens— are asking a federal court to block a congressional map imposed by a state judge after the GOP-led legislature’s original map was found to violate state laws against partisan gerrymandering. 

The GOP’s argument rests on the Constitution’s Elections Clause, which says state “Legislatures” set the “Times, Places and Manner” of federal elections, subject to oversight by Congress. 

The GOP and ISL proponents argue that language means legislatures — and legislatures alone — control congressional redistricting, and neither courts nor voters get a say in the matter.

“The Elections Clause of the United States Constitution unequivocally vests the authority to decide ‘[t]he Times, Places and Manner of holding Elections for Senators and Representatives,’ in the ‘Legislature’ of ‘each State,’” the Utah plaintiffs wrote in their filing this month. “Thus, the political branches chosen by the People of Utah — not judges or private activist organizations — possess the exclusive constitutional authority to determine the apportionment of the People’s representatives in the U.S. Congress.”

That framing heavily echoes ISL theory, which holds that state legislatures have near-exclusive authority over federal elections.

In 2023, the U.S. Supreme Court rejected the most extreme version of that theory — which would have barred state courts from reviewing any election laws passed by state legislatures. The Court held that state courts can indeed enforce state constitutions in federal election disputes.

The Supreme Court, however, cautioned that courts may not “transgress the ordinary bounds of judicial review.”

Utah Republicans are seizing on that language, arguing a state judge went too far by imposing a replacement map after striking down the GOP legislature’s gerrymander.

In a hearing this week, the three-judge panel was notably skeptical toward the GOP plaintiffs’ arguments for a preliminary injunction to block the state court-imposed map?

No decision has been issued in Utah yet, but a ruling is expected by the end of the month, before candidate filing begins.

Missouri GOP: challenging the voters

Missouri Republicans advanced a similar argument last year when voters initiated a campaign to block the GOP’s mid-decade congressional gerrymander through referendum.

“The U.S. Constitution expressly vests the power to apportion federal congressional districts in the state legislatures, with only Congress itself expressly given oversight authority over state legislatures,” the Missouri plaintiffs wrote. “The ‘text, structure, or history of the Constitution’ plainly show that Article I, Section 4 deliberately vests ‘the Legislature,’ not ‘the people’ with the power to reapportion congressional representation.”

That case was flatly rejected by a federal court, with the judge refusing to embrace the GOP’s sweeping Elections Clause claims. The GOP is attempting to appeal the ruling. 

And in fact, in 2015, the U.S. Supreme Court held that citizens’ initiatives can play a role in redistricting because the word “legislature” in the Constitution refers to a state’s full lawmaking process — not just the politicians inside the statehouse.

What’s at stake 

Despite repeated rejections, the GOP’s fringe strategy persists.

Rather than resurrecting — yet — the broad claim that state courts and voters have no role in election laws at all, Republicans are pressing a narrower version when it comes to drawing congressional maps.

But even if accepted in this limited form, that argument could sharply curtail state constitutional protections and voter-approved reforms designed to curb partisan gerrymandering.

Voting rights advocates have long warned that even a narrower version of ISL could weaken long-standing, constitutionally grounded checks on partisan abuses — and deal a severe blow to representative democracy.

“The ‘Independent State Legislature Theory’ is a meritless interpretation of the U.S. Constitution that would give state legislatures near-total authority over the laws for federal elections, including voting, redistricting, and election administration,” the Brennan Center for Justice has explained. “It would endanger hundreds of constitutional provisions, ballot initiatives, state court rulings, statutory delegations, and administrative regulations that regulate federal elections.”

For decades, state courts have reviewed election laws. Voters in many states have adopted redistricting reforms by ballot initiative. Governors have vetoed partisan maps. These checks reflect a basic principle of American democracy where no branch of government holds unchecked authority.

So far, federal courts have largely resisted straying away from that principle.

The Supreme Court rejected ISL’s most expansive form. Missouri’s referendum challenge was dismissed. And the Utah panel has shown skepticism toward the GOP’s claims.

But with control of Congress hanging in the balance and escalating pressure from Trump, Republicans appear determined to keep testing the limits — refining fringe theories, narrowing them and raising them again under new contexts.