Republicans Are Once Again Asking the US Supreme Court to Upend American Elections

WASHINGTON, D.C. —  After the Montana Supreme Court struck down four voter suppression laws, prominent state Republicans are going to ask the U.S. Supreme Court to reconsider a radical theory that could drastically alter checks and balances and sow chaos into our elections.

Dark forbidding storm sky over the United States Supreme Court building in Washington DC. (Adobe Stock)

The independent state legislature (ISL) theory is the idea that under the Elections Clause of the Constitution, only state legislatures have the power to regulate federal elections. Last year, the U.S. Supreme Court rejected the radical ISL theory when it issued its decision in Moore v. Harper. Now, in a request for an extension of time to file an official petition before the court, state Republicans — Secretary of State Christi Jacobsen and Attorney General Austin Knudsen — are asking the court to consider adopting the radical theory. 

Although this latest action is just a request for the state to have more time to file a petition, this request is incredibly revealing of what the state will argue when it does file a cert petition, which will be a full throated request for the Court to once again consider the ISL theory. Montana is requesting an Aug. 26 deadline to officially ask the Supreme Court to take the case. 

If the Supreme Court were to endorse the ISL theory, this could mean that state courts, governors’ vetoes and citizen-led ballot initiatives would not be able to reign in state Legislatures or have a say in how elections are run. This outcome could be especially harmful in states controlled by Republican legislatures that take every opportunity to curtail voting rights. 

Another case pushing the ISL theory brought by Pennsylvania legislators is currently pending before the court as well and the court will determine if it will take the case some time after Sept. 30, 2024. 

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In the case before the Supreme Court, the Montana Supreme Court struck down four voter suppression laws that made it more difficult for Native American voters, voters with disabilities and  young voters to vote; under Republicans’ ISL theory, state courts would be disempowered and unable to take such an action. Voters would lose state courts as an avenue to fight unjust voting practices. 

In Moore, the Supreme Court largely rejected the ISL theory, but did leave the door slightly ajar for more ISL challenges. The majority determined that “state courts may not…exceed the bounds of ordinary judicial review.” In his concurring opinion, Justice Brett Kavanaugh wrote that “the Court should and presumably will distill that general principle into a more specific standard.” 

Republicans are taking conservative justices’ bait and have been relentlessly pushing for the court to consider a new vehicle for the ISL theory. In this case, Jacobsen explicitly asks the court to consider Kavanaugh’s open question from his concurrence by asking what is necessary to “show that a state court has so far exceeded the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures.” 

Acknowledging the court’s previous decision in Moore, Jacobsen’s request argues that the court “left open the question of how to determine whether a state court has transgressed that boundary and im-permissibly interfered with a state legislature’s authority.” 

In March, the Montana Supreme Court held that four laws — that eliminated Election Day registration, banned paid ballot collection and curtailed other forms of ballot return assistance, prohibit the mailing of ballots to new voters who will be eligible to vote on Election Day but are not yet 18 and made it more difficult to vote with a student ID — violated the Montana Constitution. In her new request, Jacobsen argues that the Montana Supreme Court’s decision was “egregiously wrong,”  and  “highlights the need for this Court’s guidance.” 

Read the application for extension of time here. 

Learn more about the case here.