An Elite Power Grab Dressed in Academic Robes
If you have not heard of the independent state legislature (ISL) theory, congratulations. You lead a happier life than I do. Not just because it represents a terrifying power grab by federal judicial supremacists, but also because it has a day-ruining bad name. The ISL theory is not a doctrine, it does not grant anyone independence and it is not about supporting state legislatures. If you’re confused, that’s kind of the point.
In fact, the ISL theory is the idea that partisan federal judges would be allowed to take power away from states, counties, towns and the people who live there — and know how elections in their communities are run — and instead give that power to themselves. This “doctrine” is not a doctrine nor is it a law school exam gone wrong; rather, it’s a political power grab. Pro-democracy lawyers need to treat and fight it as such, and pro-democracy voters need to understand the stakes.
State election laws do not exist in a vacuum. Every state has a constitution representing the rights that the people of that state have granted to themselves, and state laws must comply with the state constitution. Each state has judicial officials, in many cases elected by the people of that state, who are experts in the interpretation of state laws. Finally, there are the implementers: For election laws, this is often a secretary of state, county or town clerks or other local election officials along with your favorite poll worker at the local church who faithfully applies the law when you go in to vote.
The ISL theory replaces the elected officials and dedicated public servants at every level of state and local government with unelected federal judges. The theory’s proponents will tell you that state laws speak for themselves, but they have either never read a state election law or are intentionally misleading you. That’s not just a rhetorical flourish. The same people who are pushing the ISL theory — and the elite federal judges who want to grab power — tend to be deeply unfamiliar with state election law and election administration.
Currently, state judges, who are experts in their state’s election laws, have the final say on what those laws mean. If an ISL theory power grab comes to pass, unelected federal judges will have the final say. This is bad for democracy, no doubt. But it is also bad for competent government.
This is a problem for both voter access and election security. As one example, a common silent point in state election law is exactly how many polling sites each community will open because state legislatures generally recognize that local election officials are in the best position to decide how many polling places their communities need. As another example, in many cases local elections run their own cybersecurity protocols and craft their own plans for election administration technology because needs are often different between jurisdictions. In both situations, administrations should be in charge and state court judges who are deeply familiar with both the election codes and communities should mediate any disputes.
If the ISL theory is adopted by the U.S. Supreme Court, a federal judge who has barely visited a polling place because he always voted absentee from Harvard University could have the final say in those decisions. The proponents of the ISL theory want an unqualified person to resolve these questions because they want the process to break down. These proponents want to hamper access to the polls to cause confusion and insecurity around our elections. They want to harm democracy. It’s that simple.
I am a lawyer. Some of my best friends are lawyers. But we carry hammers and so we often think things are nails, especially when they have been carefully dressed as nails by a coordinated anti-democracy opposition. Lawyers have tried admirably to articulate what is doctrinally wrong with the ISL theory. They have done a good job, but it has mostly not helped. That’s because the ISL theory is not a real legal doctrine — it’s a raw exercise of power. We need to fight this as a political fight, not an academic fight. And that’s where the non-lawyers come in.
We need voters to support leaders who correctly understand courts are a political body and to have the back of local election officials. In a majority of state courts, the judges deciding the lawsuits are actually elected, meaning you can vote for them if you vote all the way down the ballot. But in addition to voting, the average American can stand up when local election officials are attacked, volunteer as a poll worker themselves, show up at meetings, write letters to the editor or even read a mind-numbing phrase like the ISL theory and understand that means a partisan attack on our communities’ ability to engage in the democratic process — and they can get just as mad about it as I am.
Sam Oliker-Friedland is the executive director of the Institute for Responsive Government.