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A Guide to Recent Scholarship on the ‘Independent State Legislature Theory’

The latest scholarship demonstrates the flaws and the dangers of this radical theory.

Published: May 17, 2022

Schol­ars are turn­ing out in increas­ingly large numbers to take on the “inde­pend­ent state legis­lature theory” (ISLT), a radical and unpre­ced­en­ted approach to the U.S. Consti­tu­tion’s Elec­tions and Elect­ors Clauses that would give state legis­latures wide author­ity to gerry­mander elect­oral maps, pass voter suppres­sion laws, and, at the most extreme, over­turn elec­tions. This schol­ar­ship comes at a crucial moment, as some conser­vat­ive legal activ­ists press the U.S. Supreme Court to make the ISLT the new law of the land and several seated Justices signal their open­ness to doing so.

The ISLT hinges on a stil­ted read­ing of the word “Legis­lature” in the Elec­tions and Elect­ors Clauses, accord­ing to which state legis­latures alone would have the power to regu­late federal elec­tions and appoint pres­id­en­tial elect­ors without any of the normal checks and balances provided by state consti­tu­tions, state courts, or governors. Schol­ars, however, have rejec­ted this approach, and not just as a matter of the Consti­tu­tion’s text. The ISLT is also incon­sist­ent with the Framers’ intent when draft­ing the Consti­tu­tion, the early public mean­ing of the Consti­tu­tion, and histor­ical elec­tions prac­tices, among other fatal flaws.

The Bren­nan Center recently convened several lead­ing schol­ars to discuss their work on the ISLT and what it means for any future Supreme Court show­downs on the issue. (A video of the event is here and the tran­script is here.) Their articles are part of a larger, and continu­ally grow­ing, universe of recent schol­ar­ship. Below is a guide to recent and forth­com­ing liter­at­ure examin­ing the ISLT, focus­ing on each article’s most unique or signi­fic­ant argu­ments and find­ings.

Erad­ic­at­ing Bush-League Argu­ments Root and Branch: The Article II Inde­pend­ent-State-Legis­lature Notion and Related Rubbish
By Vikram David Amar & Akhil Reed Amar
Supreme Court Review (forth­com­ing 2022)
This article reviews the origins of the ISLT and explains how it “runs completely counter to” histor­ical under­stand­ings of the Consti­tu­tion, “to actual state legis­lat­ive prac­tice and inten­tions, and to settled judi­cial preced­ent from the Court itself over the past century.”

Undue Defer­ence to States in the 2020 Elec­tion Litig­a­tion
By Joshua Douglas
William & Mary Law Review (2021)
This article provides an over­view of the elec­tion law cases decided by the Supreme Court and federal appel­late courts in 2020, discuss­ing the ISLT as an example of how courts deferred unduly to state legis­latures during the 2020 elec­tion litig­a­tion.

Debunk­ing the Non-Deleg­a­tion Doctrine for State Regu­la­tion of Federal Elec­tions
By Mark S. Krass
Virginia Law Review (forth­com­ing 2022)
This article debunks the ISLT by show­ing that found­ing era state legis­latures routinely deleg­ated the power to regu­late federal elec­tions to other state actors.

Failed Elec­tions and the Legis­lat­ive Selec­tion of Pres­id­en­tial Elect­ors
By Justin Levitt
NYU Law Review (2021)
This article explores some philo­soph­ical, doctrinal, and prac­tical prob­lems of the ISLT and argues that federal laws have long given states, rather than just state legis­latures, a role in regu­lat­ing federal elec­tions.

Textu­al­ism, Judi­cial Suprem­acy, and the Inde­pend­ent State Legis­lature Theory
By Leah Litman & Kath­er­ine Shaw
Wiscon­sin Law Review (2022)
This article argues that the ISLT is incon­sist­ent with judi­cial feder­al­ism, “a lawless power grab by the federal courts masquer­ad­ing as defer­ence to a roman­ti­cized vision of the state legis­lature.”

The Danger­ous Inde­pend­ent State Legis­lature Theory
By Jason Marisam
Michigan State Law Review (forth­com­ing 2022)
This article argues that the justi­fic­a­tions for the ISLT offered by its support­ers are “under­the­or­ized and based on flawed assump­tions of legis­lat­ive beha­vior and flawed under­stand­ings of consti­tu­tional and insti­tu­tional design.” 

The Inde­pend­ent State Legis­lature Doctrine
By Michael Morley
Ford­ham Law Review (2021)
This article explores the differ­ent “corol­lar­ies” of the ISLT, suggest­ing that courts need not accept or reject the entire theory but could select­ively embrace parts of it. It builds off previ­ous work laying out the argu­ment in favor of the ISLT in Michael Morley, "The Intra­tex­tual Inde­pend­ent 'Legis­lature’ and the Elec­tions Clause," North­west­ern Law Review (2015), and his review of the histor­ical support for the ISLT in Michael Morley, “The Inde­pend­ent State Legis­lature Doctrine, Federal Elec­tions, and State Consti­tu­tions,” Geor­gia Law Review (2021), which has been disputed in current liter­at­ure (see, for example, Smith’s and Amar & Amar’s articles).

The Elect­ors Clause and the Governor’s Veto
By Nath­aniel Rubin
Cornell Law Review (2021)
This article takes on the ISLT by arguing that the “Supreme Court’s preced­ents and long­stand­ing prac­tice strongly suggest that a state governor has the same powers over bills govern­ing pres­id­en­tial elec­tions as over other state legis­la­tion.”

Coun­ter­ma­jor­it­arian Legis­latures
By Miriam Seifter
Columbia Law Review (2021)
This article explains how the ISLT under­mines fair repres­ent­a­tion by giving more power to gerry­mandered state legis­latures.

The Inde­pend­ent State Legis­lature Claim, Textu­al­ism, and State Law
By Caro­lyn Shapiro
Univer­sity of Chicago Law Review (forth­com­ing 2023)
This article argues that the ISLT, para­dox­ic­ally, ignores the will of state legis­latures, the very entit­ies the theory is supposed to empower.

Revis­it­ing the History of the Inde­pend­ent State Legis­lature Doctrine
By Hayward H. Smith
St. Mary’s Law Journal (2022)
This article debunks the ISLT on the grounds of the original mean­ing of the Consti­tu­tion, specific­ally address­ing and reject­ing many of the key histor­ical argu­ments made by ISLT proponents. It builds on Smith’s earlier work in Hayward H. Smith, "History of the Article II Inde­pend­ent State Legis­lature Doctrine," Flor­ida State Law Review (2001).

The Mean­ing, History, and Import­ance of the Elec­tions Clause
By Eliza Sweren-Becker & Michael Wald­man
Wash­ing­ton Law Review (2021)
This article provides a compre­hens­ive analysis of the purpose, mean­ing, and early inter­pret­a­tion of the Elec­tions Clause—one of the two consti­tu­tional provi­sions the ISLT implic­ates, along with the Elect­ors Clause. 

Liquid­at­ing the Elec­tions and Elector Clauses
By Michael Weingart­ner
Harvard Journal of Law and Public Policy (forth­com­ing 2023)
This article argues that courts should reject the ISLT because settled histor­ical prac­tice is incon­sist­ent with it.

Voting Rights Lawyer­ing in Crisis
By Emily Rong Zhang
City Univer­sity of New York Law Review (2021)
This article explains how the ISLT is affect­ing voting rights lawyer­ing.