Using Rejected ISL Theory, Michigan Republicans Challenge Voter-Approved Constitutional Amendments
WASHINGTON, D.C. — On Thursday, Sept. 28, Michigan Republican legislators filed a federal lawsuit seeking to resurrect the rejected independent state legislature (ISL) theory as the basis for nullifying two pro-voting constitutional amendments. The challenged amendments were enshrined in the Michigan constitution via voter-approved ballot initiative petitions in 2018 and 2022, respectively.
The GOP plaintiffs also challenge the “future” use of ballot initiative petitions that aim to enact amendments to the Michigan Constitution pertaining to the regulation of the “times, places, and manner of federal elections.”
The new Republican lawsuit invokes the unfounded ISL theory — which was largely rebuffed by the U.S. Supreme Court’s June 2023 decision in Moore v. Harper — to contend that voter-approved amendments regulating federal elections “are an unconstitutional usurpation of state legislator’s rights to participate in law-making decisions under the Elections Clause” of the U.S. Constitution. Under the ISL theory, the GOP state legislators interpret the Elections Clause to mean that state legislatures have the sole authority to set rules for federal elections, free from state constitutional review by courts, citizen-approved ballot initiatives and other parts of the state government.
The plaintiffs argue that because the Michigan Legislature has no involvement in the ballot initiative process, its power is “undermined.” The lawsuit also asserts that the Legislature should be the only “‘entity assigned particular authority by the Federal Constitution’ to regulate the time, place, and manner of federal elections.”
The 2018 voter-approved amendment that the lawsuit seeks to invalidate imposed a host of pro-voting reforms including:
- Protecting the right to vote a secret ballot,
- Ensuring military service members and overseas voters can obtain ballots,
- Automatically registering citizens to vote at the secretary of state’s office unless the citizen declines,
- Allowing a citizen to register to vote anytime with proof of residence,
- Providing all registered voters access to an absentee ballot for any reason and more.
The 2022 amendment, which the Republican legal challenge likewise asks the federal court to repeal, enhanced voting rights in the Great Lake State by expanding the early voting period, providing voters with a right to request an absentee ballot, requiring the state to fund prepaid stamps and a tracking system for absentee ballots and more.
The Republican plaintiffs ask the court to declare the 2018 and 2022 amendments invalid, claiming that they contravene the U.S. Constitution’s Elections Clause, and to prohibit the future use of voter-approved amendments that regulate federal elections.
Despite the Supreme Court’s refusal to endorse the fringe ISL theory — and the Court’s clear mandate in Moore articulating that state courts have the power to review state legislative regulations of federal elections — Michigan Republicans are now attempting to wield the theory to attack direct democracy in their latest legal challenge.