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” to mean that the state legislature — and only the state legislature — 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 argues that state legislatures can set election rules and congressional maps unchecked — not by governors, the courts, the people or even state constitutions themselves.
Why do we, at Democracy Docket, care about this fringe constitutional theory? Last year, the U.S. Supreme Court agreed to hear Moore v. Harper, a redistricting case out of North Carolina. This opened up review of the radical theory which, up until Moore v. Harper, had 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.
On Tuesday, June 27, the Supreme Court issued a 6-3 decision in Moore v. Harper, rejecting the ISL theory. In a major win for democracy, the decision in Moore v. Harper halted an extreme state legislature’s attempt to grab unfettered power from voters in North Carolina and upheld decades of precedent. Learn more about the history of this right-wing theory.
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), opening up review of the radical ISL theory.
On June 27, 2023 the Supreme Court issued a 6-3 decision that rejected the independent state legislature theory, ruling that state courts have the power to review election laws and maps enacted by state legislature. The majority opinion was written by Chief Justice John Roberts and joined by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson. Justice Brett Kavanaugh filed a concurring opinion.
Currently, Democracy Docket is tracking seven cases in state courts challenging congressional maps and 21 cases in state courts challenging voting laws or procedures under state law or state constitutions. With the Supreme Court’s rejection of the ISL theory, these cases will be able to move forward unimpeded by the ISL theory.
in the courts
Lawsuit decided by the U.S. Supreme Court regarding whether the North Carolina Supreme Court violated the Elections Clause of the U.S. Constitution when it reviewed and struck down the state's congressional map drawn by the Legislature…
Lawsuit filed by the Arizona Legislature challenging the constitutionality of the state's redistricting commission.
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.
When former President Donald Trump launched his post-election assault on democracy, he did not start with violence; he started with courts.
As we wait for the U.S. Supreme Court argument on Wednesday in Moore v. Harper, here are the five things I'm watching.
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.
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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.