Independent state legislature theory facts for kids
The independent state legislature theory or independent state legislature doctrine (ISL) is a judicially rejected legal theory that posits that the Constitution of the United States delegates authority to regulate federal elections within a state to that state's elected lawmakers without any checks and balances from state constitutions, state courts, governors, ballot initiatives, or other bodies with legislative power (such as constitutional conventions or independent commissions). In June 2023, in the case Moore v. Harper, the Supreme Court ruled in a 6–3 decision that the Elections Clause of the U.S. Constitution does not give state legislatures sole power over elections and rejected the ISL.
Where state legislatures enact laws that conflict with their state constitutions, including provisions added to those constitutions through ballot initiatives passed by a state's citizens, proponents of ISL argue that only the federal courts, not state courts, can resolve conflicts between state laws and state constitutions with respect to administration of federal elections within a state.
The primary argument made successfully against ISL is the danger of concentrating control of elections in one part of a state's government, which would be an undemocratic violation of centuries-old precedents of federalism, separation of powers, and constitutional democracy.
History
The doctrine first appeared in legal arguments raised by attorneys for then-presidential candidate George W. Bush, seeking to stop the recount of votes in Florida during the 2000 U.S. presidential election. The ISL theory has arisen in 2022 in the context of congressional redistricting, the process whereby each state adopts new congressional districts every ten years using updated census data.
In the case of Moore v. Harper, Republican state lawmakers in North Carolina had asked the U.S. Supreme Court to overrule the North Carolina Supreme Court's determination that congressional districts North Carolina lawmakers had drawn to favor Republican candidates in races for the U.S. Congress violated the North Carolina Constitution's prohibition on partisan gerrymandering. The Court previously rejected ISL in 2015, though four Supreme Court justices later voiced interest in adopting some version of the doctrine. The Supreme Court held in a 6–3 decision in Moore in June 2023 that the Elections Clause did not give state legislatures unchecked authority over federal elections, repudiating the ISL.
As a matter of constitutional interpretation, ISL had been fiercely contested. While often defended on originalist grounds, numerous originalist scholars filed amicus briefs with the Supreme Court in Moore rejecting the theory.
Role of Charles Pinckney
Charles Pinckney, then a delegate of the Constitutional Convention, and otherwise an active member of South Carolina's government; purportedly suggested the following clause in 1787, which was reported to the United States Secretary of State John Quincy Adams in an 1818 draft of his notes.
"Each State shall prescribe the time & manner of holding Elections by the People for the house of Delegates & the House of Delegates shall be the judges of the Elections returns & Qualifications of their members."
The appellants of Moore v. Harper cite Pinckney's report to Adams – the so-called "Pinckney Plan" – as supporting their claims, but Pinckney himself was unsure whether he sent the correct draft to be archived in 1818, 32 years after the convention. James Madison as well as some modern historians dispute the version Pinckney chose as being the correct one.
Theory
Arguments made in favor
Michael Morley argues for ISL saying it would give flexibility for legislatures, that election administration should be entirely run by politicians, put more power in state legislatures, and more quickly resolve election disputes. He also cites Article I, Section 4, Clause 1 (The Elections Clause): "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators." [emphasis added] and Article II, Section 1, Clause 2: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." [emphasis added] The phrase, "the Legislature thereof" in both the Electors Clause and the Elections Clause is interpreted under ISL to refer specifically to a state's elected representative body, and not any other parts of the state government.
Criticisms
ISL has come under criticism on originalist and other grounds. Conservative former federal appellate judge J. Michael Luttig argued that there is "absolutely nothing" to support the ISL. American legal scholar Vikram Amar argues that the founders clearly understood state legislatures to be "created and constrained by its state constitution." Other legal scholars consider ISL to be "fatally inconsistent with basic precepts of both federalism and the separation of powers" as well as "an unprecedented, unconstitutional, and potentially chaos-inducing intrusion into state election law."
Practically, ISL would mean that the general public (through ballot initiatives), governors (elected statewide and so not affected by district borders) and state courts would have no role in altering election laws or federal congressional boundaries, even if they violate the state constitution. Adoption of the ISL could create substantial confusion about the validity of a number of state election laws and regulations and even be destabilizing. Experts said it could allow legislatures draw gerrymandered maps and even subvert the next presidential election. Some fear this theory would be a severe, potentially fatal blow to American democracy. Levitsky and Ziblatt argue that it would ensure the country's slide into minority rule. In an amicus brief submitted for Moore v. Harper, a bipartisan group of former public officials and federal judges warned that "a broad view of the so-called independent state legislature theory ... would essentially hand the future of democratic representation in the states to those motivated to entrench political power in a single party."
