At the end of a term with many high‐profile and controversial decisions, the Supreme Court agreed to hear a case next term that could upend election law in the United States. In Moore v. Harper, the court agreed to hear an argument known as the independent state legislature (ISL) theory. This case has the potential to have a wide‐ranging impact and many election law experts are sounding the alarm.
I have been critical of the ISL theory and mostly unpersuaded of its merits, at least in its more radical forms with regard to elections. Helen White of Protect Democracy offers a good explanation of why originalists should reject ISL, and how recent research has demonstrated it conflicts with the understanding of the Founders and historical practice dating all the way back to the ratification era. I largely agree with her analysis and the scholarship she cites.
However, the ISL theory’s potential effect on presidential elections is being misunderstood and overstated by some critics of the conservative majority on the Supreme Court. Even as somebody who mostly disagrees with the theory, I’d like to sound a note of caution. Popular progressive talk show host Thom Hartmann, for example, flatly endorsed the interpretation that ISL would enable the worst possible election subversion schemes, and that the Supreme Court is plotting to use it to steal the 2024 election for Republicans. This is wrong, and it’s important for even those who disagree with ISL doctrine to be able to explain why.
This confusion is partly because the real ISL theory, endorsed and advocated by serious legal scholars and founded in a credible (if still debatable) interpretation of the Constitution, is being conflated with arguments made by Trump and his acolytes in the 2020 election. These claims invoked the theory in name, but the interpretation claimed by people such as John Eastman and some Republican lawmakers (and rightly rejected by others) is frivolous and unsupported even on ISL’s own terms.
So what is the independent state legislature theory? It starts with the Constitution’s Elections Clause, which provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…” (emphasis added).
The point of contention is in that reference to “the Legislature thereof.” Does that mean only the elected body consisting of state representatives and state senators? Or does it refer to the state’s lawmaking process more broadly, however that might be organized by the state’s constitution, including things like possible gubernatorial vetoes and judicial review by state courts? It’s the former interpretation that would make state legislatures “independent” of any constraints under the state’s constitution, on the theory that any such limits on their power are overridden by the federal Constitution.
The practical implications of this question were made plain in a 2015 case concerning Arizona’s independent redistricting commission, which was created by voters through a ballot initiative. Members of the Arizona state legislature sued in federal court, arguing that this usurped a power the federal Constitution grants only to them. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court rejected that argument in an opinion written by Justice Ginsburg and joined by the three other liberals together with Justice Kennedy.
Now a similar case will go before a changed court, with Kennedy and Ginsburg both replaced by more conservative justices who are presumed to be more sympathetic to the dissents in the Arizona case. In Moore, the North Carolina state courts struck down the congressional districts adopted by the state legislature, holding that they violated the state constitution due to excessive gerrymandering. Like happened in Arizona, North Carolina legislators filed a federal suit claiming that state constitutions and courts can not constrain their exercise of the power granted by the Elections Clause.
Observers widely expect the court to endorse the independent state legislature theory, though how far they will go with it is an open question. The consequences could be substantial, overturning popular reform moves in many states to limit partisan gerrymandering. That might include independent commissions and the use of referendums like in Arizona, state court rulings like the one at stake in North Carolina, and state executive actions such as many states controversially used to alter their election procedures in response to the pandemic. These would be big and consequential changes to how federal elections are run, and those concerned with election law and policy are right to say so.
Such a ruling could also have troubling practical consequences, splitting the process of setting rules for elections to state office from the rules for federal elections, even though both appear on the same ballots on the same day. Such a possibility was once so troubling that the Constitution was amended in record time to avoid it.
So that’s what’s at stake for House and Senate elections. What about presidential elections? What does Moore potentially mean for Electoral Count Act reform and concerns about attempted subversion like we saw in the 2020 election?
The Constitution’s Electors Clause, governing how members of the Electoral College are chosen, contains similar language granting the decision over method of selection to each state’s “legislature.” In the 2020 election and after, advocates for Trump argued this amounts to a sweeping power for state legislators to overturn the results of the presidential election in their state. Even after a state’s voters chose Biden and thus his slate of electors, and after that result was duly confirmed by both state and federal courts, the claim was that Republican‐majority legislatures could appoint Trump electors instead. In its most outlandish version, proponents argue legislators could revoke their state’s 2020 electoral votes right now, long after the election is over and the winner has taken office.
But this is not what independent state legislature theory would do on its own terms, and it is not what has been advocated by serious proponents. There has been no indication from the conservative justices, including in their dissents in Arizona and other recent cases, that they would condone such an action. That’s because it would contradict the plain text of the Constitution regardless of any theory about the powers of state legislatures.
In both congressional and presidential elections, Congress has a time‐setting power to determine when the elections occur, even as the how is mostly left to the states. For presidential elections, that means state legislatures (however that term is construed) have broad power to decide what manner the state will use to choose its presidential electors. But they must implement the method chosen on the date set by federal law, which is Election Day. That’s the deadline.
States could say they won’t hold a presidential election at all, and instead the legislature itself will pick who will cast the state’s electoral votes. This is a power every state already has, and they always have. But in practice, the use of popular elections for president is well‐settled and heavily entrenched, such that no state is likely to abandon letting voters have their say. No state has used legislative selection since 1876. It is politically unthinkable to abolish presidential elections altogether, even in the most heavily Republican states.
The claim made by Trump supporters in 2020 goes beyond that and says that legislatures can hold an election to choose electors but then decide they don’t like the outcome and overturn the results. This is false and would render Congress’s time‐setting power a nullity. You can’t decide how you’re going to do something (appoint electors) after the time set for doing it (Election Day) has already passed. Once the state has decided to hold an election to choose electors, and then actually done so on Election Day, that process is final and state legislators have no further say in the matter.
This is true regardless of how the court rules in Moore. There is no need for Electoral Count Act reform to address it, nor should the pending case be any obstacle to much‐needed ECA reform. That’s because ECA reform is compatible with however the court might rule on the independent state legislature theory. A reformed ECA should clearly articulate the principle that Election Day constitutes a firm deadline for states to decide how they will choose their electors, but this is already current law and what the Constitution clearly requires.
Given the likelihood that the Supreme Court will endorse some version of the independent state legislature theory, it’s important for opponents of Trump‐style election subversion to not overstate the effect it would have. No matter what the court rules in Moore, it will remain unlawful and unconstitutional for state legislatures to overturn presidential election results after the fact.
