Independent state legislature theory

Supporters have also cited a clause purportedly proposed by Charles Pinckney during the Constitutional Convention, though some scholars dismiss the document as fraudulent.[9][10] The disputed document states: "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."

During the Massachusetts Constitutional Convention of 1820–1821, James T. Austin proposed including a provision in the Massachusetts Constitution that would limit the power of the Massachusetts legislature to redraw new congressional districts every two years.[6] This proposal was rejected by other convention delegates as in violation of the Elections Clause of the U.S. Constitution, with delegate Justice Joseph Story arguing that such an amendment would amount to the Convention "assuming a control over the Legislature which the constitution of the United States does not justify."[6]

In 1873, the Supreme Court of Mississippi ruled that a provision of the Mississippi Constitution requiring all general elections to be held biannually did not limit Mississippi's legislature's discretion to set the timing of congressional elections under the Elections Clause.[6]^: 44–45

The Supreme Court of the United States indicated some approval for ISL in dicta from its 1892 ruling in McPherson v. Blacker.[11] In that case, the Court assessed the constitutionality of a Michigan law regulating the selection of presidential electors. In upholding the law, the Court quoted approvingly from an 1874 Senate committee report containing language recognizing the absolute power of state legislatures to appoint presidential electors. The committee report went on to say that such power "cannot be taken from them or modified by their State constitutions."[12] However, because the issue before the court in Blacker was whether the Michigan law was consistent with the federal constitution, the court made no direct holding addressing ISL.

Throughout most of the 20th century, both state courts and the Supreme Court of the United States largely ignored or rejected ISL.[6]^: 9–10 For example, in 1916, the Supreme Court ruled in State of Ohio ex rel. Davis v. Hildebrant that an amendment to the Ohio Constitution allowing the public to reverse the state legislature's laws was constitutional, even when reversing the legislature's adoption of new congressional districts.[13] The Court did not invoke the Elections Clause or other ISL principles in its reasoning. In 1932 the Supreme Court unanimously ruled in Smiley v. Holm that the U.S. Constitution does not forbid a governor from vetoing a redistricting proposal passed by the state legislature.

The modern revival of interest in ISL at the Supreme Court stems from Bush v. Gore, specifically from a three-Justice concurring opinion in that case written by Chief Justice Rehnquist.[6]^: 82 In agreeing with the majority's invalidation of the Florida Supreme Court's order of a statewide manual recount of ballots cast in the 2000 presidential election, the Chief Justice argued that the Court's holding was further supported by the fact that the Florida Supreme Court's ruling significantly departed from the statutory text of Florida's election code—a violation of the Elections Clause.[14]

In 2015, the Supreme Court expressly rejected the ISL in a 5–4 ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission.[15] In that case, the Court considered the constitutionality of the authority granted to an independent commission to draw congressional districts for the state of Arizona.[16] The commission was created by initiative in which the Arizona electorate voted to amend the state constitution to remove the power of congressional redistricting from the state legislature.[16] The Arizona State Legislature filed suit, arguing that reassigning the power to draw congressional maps away from an elected state legislature violated the Elections Clause.[17] The Court rejected this argument. In a majority opinion written by Justice Ruth Ginsburg, the Court ruled that the Election's Clause language "the Legislature thereof" can refer either to the legislative authority of a state's representative body or a state citizenry's use of popular initiative (if consistent with the state's constitution).[18]

Chief Justice John Roberts dissented in the case, joined by Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.[19] The Chief Justice argued that the text, structure, and history of the Constitution required reading the Elections Clause as assigning the duty of regulating federal elections within a state specifically upon that state's elected represented bodies.[20] According to the Chief Justice, this interpretation is the only way to make structural sense of the necessity of the Seventeenth Amendment to the U.S. Constitution, which amended the Constitution to require elections of U.S. Senators "by the people" of each state, replacing the former language granting such power to "the Legislature" of each state. In rejecting the majority's reasoning, the Chief Justice commented ironically on the amendment's ratification efforts: "What chumps! Didn't they realize that all they had to do was interpret the constitutional term 'the Legislature' to mean 'the people'?".[20]

The Independent State Legislature theory was used to try and overturn the 2020 US presidential election results in Pennsylvania among other states.[21]

Since the 2020 United States presidential election, four conservative justices of the Supreme Court have indicated sympathy for ISL.[3][4] In a federal case challenging Wisconsin's absentee voter laws, Justices Brett Kavanaugh and Neil Gorsuch voiced interest in adopting the doctrine. Specifically, Justice Kavanaugh wrote in favor of ISL as derived from the Presidential Electors Clause, writing "The text of Article II means that the clearly expressed intent of the legislature must prevail and that a state court may not depart from the state election code enacted by the legislature."[22] In another opinion in the same case, Justice Gorsuch (also joined by Justice Kavanaugh) argued that the Elections Clause "provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules."[23]

In 2022, Justice Alito, joined by Justices Thomas and Gorsuch, dissented in a denial of an application for a stay of a ruling by the North Carolina Supreme Court.[3] The state supreme court's ruling invalidated the North Carolina General Assembly's adoption of a congressional map for the 2022 U.S. midterm elections and ordered the implementation of a judicially created map, on the grounds that it was an extreme case of gerrymandering in favor of the Republican Party.[24] The dissent maintained that the North Carolina judiciary's actions were worthy of review by the Court, arguing that "[the Elections Clause's] language specifies a particular organ of a state government [for prescribing the rules for congressional elections], and we must take that language seriously."[25] The Court agreed to review the case during the 2022–2023 term as Moore v. Harper.[2][26][27]

The court rejected an expansive view of the theory in a 6-3 decision, but the conservative justices left the door open for a narrower ruling in the future.

The primary portion of the U.S. Constitution discussed is 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.[31] [emphasis added]

The secondary portion of the Constitution discussed is the Presidential Electors Clause in Article II, Section 1, Clause 2:[32][29]

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.[33] [emphasis added]

The phrase, "the Legislature thereof" in both the Electors Clause and the Elections Clause is interpreted under proponents of ISL to refer specifically to a state's elected representative body, not other parts of the state government like the governor or state courts.[34]

Professor 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.[6]^: 32–37[29]

Conservative former federal appellate judge J. Michael Luttig has written that nothing exists to support the ISL.[35] American legal scholar Vikram Amar argues that state legislatures were never isolated or sovereign from other state institutions, including state constitutions, as they are just one form of representation of the people's will.[5] Other legal scholars consider ISL to be inconsistent with basics of federalism and the separation of powers as well as unprecedented and unconstitutional.[36][37] The founders were particularly wary of state legislatures and never held them in high regard, nor did the sharing of power over elections between those legislatures and other branches of state government create controversy.[21] Additionally, the first amendment prohibits only "Congress" from infringing on free speech, but the first amendment is widely understood to apply to the executive and judicial branches as well.[21]

Adoption of the ISL would create substantial confusion about the validity of a number of state election laws and regulations.[38][39][2]

Some fear this theory would be a severe, potentially fatal blow to American democracy.[40][41][42] In an amicus brief submitted for Moore v. Harper, a bipartisan group of former public officials and federal judges argued that ISL could allow the entrenchment of political power in a single party.[43] District lines for geographically-based legislatures of the U.S. already disadvantage one party because of wasted votes resulting in an efficiency gap, which can widen further with unchecked gerrymandering.[44] These geographic efficiency gaps do not exist in statewide races like those for governor, state supreme court justice, or for ballot initiatives which are more representative of the will of the voters in that state.