On Thursday, July 28, the U.S. House of Representatives’ Committee on House Administration held a hearing about the fringe independent state legislature (ISL) theory that could upend American elections. The U.S. Supreme Court will review this theory during the upcoming term when it decides the North Carolina redistricting case Moore v. Harper. The witnesses were unanimous in their testimony that the theory has no basis in the U.S. Constitution or U.S. history and is dangerous for our democracy. You can watch the hearing and find the live play-by-play below.
The Committee called three witnesses to testify:
- Richard Pildes, Sudler Family Professor of Constitutional Law at New York University School of Law,
- Carolyn Shapiro, Professor of Law at Chicago-Kent College of Law and
- Eliza Sweren-Becker, Counsel at the Brennan Center for Justice.
Thursday, July 28, 2022
Last updated: 2:20 p.m.
- Rep. Raskin closes the hearing by summarizing the witnesses’ testimony. “I think all of our expert witnesses have demonstrated that there is no foundation in the text of the Constitution, in the structure of our constitutional system, in the history or the practice of elections for this radical and brazen claim. And I’m glad we seem to have some kind of bipartisan agreement about the strangeness of this doctrine.”
- Sweren-Becker: “The independent state legislature theory is bad for Americans, no matter what side of the aisle you’re on.”
- Sweren-Becker: “The logical extension of this theory is there is no separation of powers.”
- Sweren-Becker: “There’s no serious evidence on the other side. There is no support historically, there is no support legally. The Supreme Court has repeatedly rejected this idea in precedent after precedent as recently as 2015.”
- Professor Shapiro: “No question that Congress has the power to address congressional elections under Article I.”
- Rep. Mary Gay Scanlon (D-Pa.) asks the witnesses about the impact of ISL on her state and what Congress can do. Professor Shapiro replies that “you need to be concerned about whether the rules might be different for federal elections versus state elections…there could be an enormous amount of chaos.”
- Professor Pildes mentions that the Senate’s recently introduced Electoral Count Reform Act would help secure the electoral process against partisan manipulation that the theory could allow. Chair Lofgren mentions that she and her House colleagues are working on their own legislation that will be introduced in the next couple of weeks.
- Rep. Aguilar asks Professor Shapiro about the impact of the ISL theory on basic regulations that protect the voting rights of people of color. Shapiro responds that “every decision that a local election official makes that involves discretion could be second guessed and litigated in federal court.” She notes that communities of color often have needs that require the exact kind of discretion on the part of local officials that the theory would jeopardize.
- Rep. Pete Aguilar (D-Calif.) asks how the ISL theory would impact presidential elections. Sweren-Becker responds that it “opens the door to efforts by state legislatures to attempt…anti-democratic shenanigans.”
- Rep. Butterfield: “Do you believe that the U.S. Supreme Court will decide that state courts do not have the authority to interpret and enforce the state constitution? Do you believe the U.S. Supreme Court will go that far?” Professor Pildes: “There are some indications that at least some justices are prepared to accept such a view.”
- Rep. G.K. Butterfield (D-N.C.) asks the witnesses if Democrats are overreacting over the upcoming case. Professor Pildes says it is difficult to say because there are so many different versions of the theory and lots of legal uncertainties that would be unleashed under any version. “It’s a concern.”
- Rep. Brian Steil (R-Wis.) wrongly states that the ISL theory has never been rejected by the U.S. Supreme Court. The Supreme Court rejected it as recently as 2015, in a redistricting case out of Arizona.
- Rep. Jaime Raskin (D-Md.) asks the witnesses about the role of legislatures under the U.S. Constitution and notes that the theory would “announce that more than two centuries of state election laws are somehow unconstitutional.”
- Sweren-Becker: “The framers use the word Congress and the framers use the word legislature in context, in the context of the checks and balances that apply to both state legislatures and to Congress.
- Rep. Barry Loudermilk (R-Ga.) asks Sweren-Becker what the founders would have understood the word legislature to mean in the U.S. Constitution. Sweren-Beckers responds that “the framers were trying to constrain the power of state legislatures” when they wrote the provisions governing elections.
- Committee Chair Lofgren opens the floor for questions from committee members.
- Sweren-Becker: “The notion would open the door to antidemocratic shenanigans and even failed efforts to manipulate our elections, erode trust and ultimately participation in our democracy.”
- The third witness, Eliza Sweren-Becker, testifies against the ISL theory. She calls ISL a “radical claim” that the “constitutional text, American history, Supreme Court precedent, sound policy and common sense all refute.” She outlines four examples of what ISL would allow for: extreme partisan gerrymandering, voter suppression, disenfranchisement of voters and the removal of critical checks against election interference and sabotage.
- Professor Shapiro urges Congress to take action. “Congress has the power to avert many of the worst implications of the ISLT as well as to protect democracy in other ways. And I urge you to use that power.”
- The second witness, Professor Carolyn Shapiro, delivers her testimony. Like Professor Pildes, she highlights that there is little historical evidence for the ISL theory, especially for more extreme interpretations of the theory. She also rejects the contention that state legislatures can set election laws free from state constitutional restraints, stating that “legislatures are creatures of their constitutions, and so they make laws only as allowed by them.”
- Professor Pildes: “The overwhelming weight of historical practice illustrates that state constitutions throughout American history have imposed substantive constraints on state legislation for national elections.”
- Professor Pildes: “The most extreme version of such a doctrine would maintain that state legislatures cannot be bound by the substantive provisions of state constitutions, or by voter initiated enactments…a decision from the court and endorsing this extreme version of the doctrine would be highly destabilizing.”
- The first witness, Professor Richard Pildes, delivers his testimony. He focuses on the practical implications of the ISL theory and lays out the historical evidence, either for or against recognition of the theory. He notes that the issue is not a simple yes or no question and there are several different versions of the theory that have different implications.
- Committee Ranking Member Rep. Rodney Davis (R-Ill.) delivers his opening remarks. He claims that those on the left are setting the stage to suggest the theory is a grand plan by Republicans to steal the election, “which is not only ludicrous, but completely untrue.”
- Rep. Lofgren: “The independent state legislature theory is part of broader plan to seize control of elections and the theory is linked to the Big Lie to former President Trump’s scheme to violate the Electoral Count Act.”
- Rep. Lofgren: “We’re here today to examine this legal theory, to discuss the historical evidence or lack thereof, supporting it and perhaps most importantly, to explore the dramatic and disruptive consequences to American democracy.”
- The committee hearing begins. Chairwoman Zoe Lofgren (D-Calif.) delivers her opening remarks.