The independent state legislature (ISL) theory is a right-wing constitutional theory about who has the power to set rules for federal elections. The theory interprets the word “legislature” in the U.S. Constitution to mean that state legislatures — and only state legislatures — can make laws regulating federal elections. This differs from the standard interpretation, in which “legislature” means the state’s general lawmaking process, which 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 state legislatures to set election rules and congressional maps unchecked — not by governors, state courts, the people or even state constitutions themselves.
Why do we, at Democracy Docket, care about this fringe constitutional theory? Right before ending its 2021-2022 term, the U.S. Supreme Court agreed to hear a redistricting case out of North Carolina. This opens up review of this radical theory which, up until now, has been dismissed by the courts as such. A fan favorite for former President Donald Trump’s campaign, this theory was advanced by his lawyers in multiple cases challenging the outcome of the 2020 election.
Now that the fate of the ISL theory is in the hands of our nation’s highest court, learn more about the history of this right-wing theory, the SCOTUS case that will determine its future and how it can impact our democracy for years to come.
from our desk
What does a redistricting case out of North Carolina have to do with a fringe, right-wing constitutional theory?
Let’s back up to late 2021. After updated census data was released, the Republican-controlled North Carolina Legislature drew congressional and legislative maps, which were subsequently challenged and struck down by the North Carolina Supreme Court for being partisan gerrymanders that violated the state constitution. Court-appointed special masters then redrew a fair congressional map that will be in place only for the 2022 election cycle.
North Carolina Republicans requested the U.S. Supreme Court use its shadow docket to block the remedial congressional map, which the Court then denied.
But, the case wasn’t over yet. The same Republican lawmakers went back to the Supreme Court, asking for full review of the case, and this time they were successful. On June 30, 2022, the Court agreed to hear the case (Moore v. Harper) in full, opening up review of the radical ISL theory. Oral argument was held on Dec. 7, 2022 and we can expect a decision by the summer. Learn more about Moore v. Harper and other related cases below.
in the courts
North Carolina Congressional Redistricting Challenge (SCOTUS)
Lawsuit pending before the U.S. Supreme Court on whether North Carolina state courts are permitted to review federal election regulations enacted by the Legislature.
Arizona Independent Redistricting Commission Challenge
Lawsuit filed by the Arizona Legislature challenging the constitutionality of the state's redistricting commission.
Florida 2000 Presidential Election Recount
Following Election Day in 2000, the certification of Florida's presidential election results was hotly contested by both George W. Bush, the Republican candidate, and Al Gore, the Democratic candidate.
A Dangerous Theory Will Have Its Day in the U.S. Supreme Court
When former President Donald Trump launched his post-election assault on democracy, he did not start with violence; he started with courts.
Five Things I’m Watching in Tomorrow’s U.S. Supreme Court Argument
As we wait for the U.S. Supreme Court argument on Wednesday in Moore v. Harper, here are the five things I'm watching.
Headed Toward a Middle Ground? Today’s Argument in Moore v. Harper
Proponents of the ISL theory will likely be disappointed by today’s argument. For voting rights advocates, the devil will be in the details of any opinion, but it feels like we dodged a bullet.
Listen to Relevant Twitter Spaces
The Threat of ISL to Our Democracy
JuLY 14, 2022 | 53:39
Eric Holder, former U.S. attorney general and chair of the National Democratic Redistricting Committee and its affiliates, joins Marc to discuss the threat of the independent state legislature theory, how it could impact voting rights and redistricting and what reforms are needed to prevent catastrophe.
A Troubling New SCOTUS Case
JUNE 30, 2022 | 46:20
The U.S. Supreme Court announced that it granted a petition to hear Moore v. Harper, opening up review on the radical ISL theory during the Court’s next term. Marc Elias explains why the ISL theory is dangerous to our democracy and lays out exactly what’s at stake.
The Importance of State Legislatures to Our Democracy
JUNE 17, 2022 | 51:08
Daniel Squadron, co-founder and executive director of The States Project, joins Marc to discuss the threat of the independent state legislature theory to our elections and why we must keep fighting for majorities in state legislatures.