Independent State Legislature Theory

The North Carolina Supreme Court's rejection of a gerrymandered Congressional map in 2022 set the stage for a legal fight over ISLT.

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Independent State Legislature Theory (ISLT) or Independent State Legislature Doctrine (ISLD) is the judicially rejected belief that the legislative bodies of a state of the United States have absolute, total, and unchecked power to handle federal elections however they want. This controversial theory recently gained popularity following the 2020 Election, where, dissatisfied that their candidate lost an election for President - with an incumbent advantage, no less - Republican lawmakers began pushing this doctrine as a means to ensure that in states where they controlled large majorities in the state legislature, said legislatures would have absolute power in deciding the elections for Republican candidates, and nothing would be able to stop this.

Had this ideology not been rejected, it could have severely affected how elections were decided and potentially drastically harmed the democratic process. If a state was inhabited by a dominant single political party, this could have allowed the state legislature to further concentrate power by allowing legislatures to bypass state constitutional bans on gerrymandering, wipe out independent redistricting committees, and even refuse to certify the results of a presidential election and select its own slate of cronies as electors (as Donald Trump planned to do following his loss in 2020).

In late June 2023, the US Supreme Court (SCOTUS) rejected an attempt by North Carolina, under the guise of a broad interpretation of ISLT, to invalidate the North Carolina Supreme Court's rejection of the state's 2022 Congressional map. Writing for the majority, Chief Justice John Roberts said that the Elections Clause of the United States Constitution "does not insulate state legislatures from the ordinary exercise of state judicial review", effectively judicially rejecting the theory. The vote on this repudiation of ISLT was 6-3, with (the usual suspects) Thomas, Alito, and Gorsuch dissenting. It says a lot about the theory's standing (or lack thereof) that a court that had previously shown zero regard for any precedent detrimental to Republican priorities dismissed it as the dangerous wibble it is.

History

ISLT in the Constitution

ISLT has its roots in the US Constitution. The Consti­tu­tion deleg­ates power to admin­is­ter federal elec­tions to the states, subject to Congres­sional over­ride. There is, however, a disagree­ment about how much power is deleg­ated and to which state actors exactly. The power in regards to federal elections revolve around two clauses in the Constitution. The first is 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”. The second is the Presidential Election Clause, “Each State shall appoint, in such Manner as the Legis­lature thereof may direct, a Number of Elect­ors”. The debate originates in what "Legislature" means in this context. For centuries, judicial organizers and lawmakers have defined "Legislature" as each state’s general lawmak­ing processes, includ­ing all the normal proced­ures and limit­a­tions. In other words, if a state passes laws through a legislature and then have said law subjected to a Governor's veto or a referendum, the same process applies to dealing with federal elections, and that all laws regarding federal elections have to comply with their state constitution.

This is also in line with comments made by the Founding Fathers themselves on this issue. You see, the founders never trusted the states to handle federal elections, stemming from the fact that the Constitution was made in reaction to the failures of state governments under the Articles of Confederation. These clauses were made with extreme hesitancy. John Mercer, a Constitutional Convention delegate argued that the state legislatures were the reason why the convention was necessary given their failures. James Madison made a list of state legislative failures to prove the need for a Constitution in the first place. States also regulated federal elections in their Constitutions, and often shared power with other state actors to regulate them, both of which go against ISLT. In other words, the federal government never wanted the states to have any real power over federal elections, and only gave it out with the idea that the states would treat federal election law in their state with regards to their own lawmaking process and Constitutions. No where was there any argument for the state legislatures having absolute unchecked authority for federal elections.

In the 20^th century, legal precedent was established by the Supreme Court that contrary to ISLT, all elements of the state legislative process (including state courts) do have the authority to challenge election law. This was cemented as precedent by the 1932 case Smiley v. Holm. In this case, the state legislature of Minnesota (then dominated by Republicans) tried to pass a gerrymandered map into law in order to maintain power in light of changes brought about from the 1930 census. Governor Floyd B. Olson, who was of the Minnesota Farmer–Labor Party, vetoed this map; the Republicans tried to ignore the veto and use the gerrymandered maps anyways, under the notion that the legislature alone had power over redistricting under Article I Section 4. While the state courts concurred, the Supreme Court unanimously reversed the decision. Chief Justice Charles Evans Hughes determined that the phrase "legislature" in Article I, Section 4 of the Constitution referred to the state's general lawmaking power rather than to the state's legislative assembly itself, and therefore redistricting was subject to the ordinary legislative process, including vetos.

Bush v. Gore and ISLT in modern politics

See the main article on this topic: Bush v. Gore

ISLT as a modern political concept came about in 2000 following many dubious lawsuits and following the Supreme Court ruling in favor of George W. Bush winning the 2000 election. In his concurring opinion, Chief Justice William Rehnquist argued that the Consti­tu­tion’s assign­ment of elec­tions author­ity to state legis­latures dimin­ishes state judges’ power to alter "the general coher­ence of the legis­lat­ive scheme". Rehnquist was joined in the opinion by justices Antonin Scalia and Clarence Thomas. Basically, this was a kind of embryonic form, arguing that the legislature having power would prevent judges from fucking with federal elections. No one paid any attention to this small detail, and no one really talked about it. That was until 2015 however, when Rehnquist's comment was used as part of an effort to dismantle Arizon­a’s inde­pend­ent redis­trict­ing commis­sion by Republicans who gerrymandered the hell out of Arizona. Again, SCOTUS rejec­ted the theory and let the commis­sion continue its work. This was the first attempt to utilize ISLT in a political sense, that the state legislature had the final say in how the electoral districts were drawn. This was also the case in Kansas and North Carolina, two other states heavily gerrymandered in favor of, surprise, Republicans that got hit with an independent commission redrawing their electoral map. The Supreme Court rejected their attempts as well.

The 2020 election

“”From long before Election Day 2020, Trump and Republicans planned to overturn the presidential election… if Trump lost the popular and Electoral College vote. The cornerstone of the plan was to have the Supreme Court embrace the little known 'independent state legislature' doctrine, which, in turn, would pave the way for exploitation of the Electoral College process and the Electoral Count Act, and finally for Vice President Mike Pence to reject enough swing state electoral votes to overturn the election using Pence’s ceremonial power under the 12th Amendment and award the presidency to Donald Trump.

—J. Michael Luttig, a former US Court of Appeals justice appointed by President George H. W. Bush.

Of course, ISLT, with a lot of the GOP's crazy election takes, came into the limelight with regards to the 2020 presidential election. In an attempt to disqualify Joe Biden's victory over Donald Trump, Republican state legislatures tried to argue using ISLT that their state legislatures should have the final say in order to "prevent fraud" and "stop election tampering". Of course, given that there is zero evidence of either of those things happening, the GOP was acting in bad faith. The Supreme Court rejected this attempt, yet, three Supreme Court justices (Clarence Thomas, Samuel Alito, and Neil Gorsuch) supported it.

Why Republicans love this idea

In order to understand why Republicans are latching on to ISLT, let's look at the "battleground" states that decided the 2020 election for Joe Biden, those being Pennsylvania, Michigan, and Wisconsin. These three states have a few things in common:

1. All three states went for Trump in 2016, and then went to Biden in 2020.
2. All three states have Democrat governors
3. All three states have or can easily get a legislature with Republican majorities in both houses.

Now, if one were a Republican politician pissed that Trump lost 2020 and wanted to ensure the next Republican candidate became President, there are some barriers. The first and obvious problem is that in these states, there are enough Democratic Party voters to turn these states into blue states. The second problem is that even if one wanted to gerrymander or change the election laws or change the structure of federal elections in these states to benefit one's party, the Governors of these states are Democrats and would reject these attempts. Also, there is a chance the courts would strike it down, as was the case in Pennsylvania when they redrew their districts. So what do you do? Well, you take advantage of your one ace in the hole, that your party controls the legislative branch of all three states, and wouldn't you know there happens to be a political theory that supports granting these legislatures unchecked absolute power that no one (not the courts or the governor) can protest or strike down. In other words, Republicans like ISLT because it supports granting power to the one aspect of state government they have a good chance of controlling with regards to federal elections.

Why ISLT could have been bad for democracy

“”In its most extreme form, the Independent State Legislature Theory could have weakened the foundation of our democracy, removing a crucial check on state legislatures and making it easier for rogue legislators to enact policies that suppress voters and subvert elections without adequate oversight from state court. We are incredibly relieved that the Supreme Court decisively rejected this dangerous theory.

—Abha Khanna, attorney for the plaintiffs in Moore v. Harper.

If it isn't obvious, having the state legislature decide power in an age where one party would totally use that in bad faith is extremely bad for democracy. It doesn't take much to imagine Republicans using ISLT to justify tossing out any Democratic victory on a federal level and just declaring their guy the winner. In other words, federal voting could have basically become worthless, since the state legislature would be the ultimate deciding factor in who wins. Also, since key electoral states have solid Republican majorities in their legislatures, it could have allowed the GOP to just have these legislatures declare the Republican the winner, votes be damned, and nothing could stop them short of SCOTUS telling them to stop. It would potentially have led to one-party minority rule in the US.

Had the Supreme Court not effectively neutered ISLT in June 2023, this could have paved the way for the GOP to simply toss out votes across the country and have state legislatures decide the winner of the 2024 Election, which could have ended up being a death-knell for democracy, and could have cemented Republicans as a dominant force in politics without being a majority. Given that the conservative majority in the Supreme Court had previously damned precedent to hell by overturning five decades of Roe v. Wade, and that four of the conservative members of the court had issued opinions in the past that seemed to take ISLT very seriously, this decision could've gone the other way. However, in a move that was a surprise to some court observers, ISLT was rejected.

External links

• The Independent State Legislature Theory — Democracy Docket