This page explains the Independent State Legislature (“ISL”) theory and provides (1) a brief explainer; (2) links to scholarly articles, opinion editorials, and podcasts analyzing the theory; (3) summaries of key U.S. Supreme Court cases and litigation related to the 2020 elections raising the theory; and (4) analysis on Moore v. Harper, a North Carolina redistricting case, in which the state legislature is petitioning the U.S. Supreme Court to recognize the ISL theory as a legitimate doctrine.
The ISL theory (also known as the ISL doctrine) posits that state legislatures have plenary authority to regulate federal elections, unchecked by other state-level constraints—such as state constitutions and state courts. The theory’s constitutional authority supposedly arises from Articles I and II of the U.S. Constitution.
U.S. Const., Art. I, § 4, cl. 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 . . . .”
U.S. Const., Art. II, § 1, cl. 3 (the Electors Clause): “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .”
Because there are several potential versions of the ISL theory, if the U.S. Supreme Court were to recognize the theory, the potential effects and ramifications would depend on which particular version the Supreme Court adopts. The dispute between the theory’s supporters and opponents ultimately hinges on how to understand the word “Legislature.” Primarily relying on textualist arguments, proponents of the ISL theory contend that explicit references to “Legislature” in the Elections and Electors Clauses refer solely to representative legislative bodies—not the states generally. On the other hand, opponents contend that singling out the word “Legislature” without analyzing the broader context of the U.S. Constitution or the history behind its enactment is misguided.
While the Court has never adopted the theory, its modern origins derive from rulings concerning the 2000 presidential election. In Bush v. Gore, 531 U.S. 98 (2000) a concurring opinion by Chief Justice William Rehnquist (joined by Justices Antonin Scalia and Clarence Thomas) advanced an argument that Article II’s delegation to the state legislature allows federal courts to block state court interpretations of state law when those interpretations significantly depart from the law’s plain text.
In some of the 2020 election litigation, however, several Justices put forth more extreme versions of the theory than Chief Justice Rehnquist’s concurrence. Some of the Court’s “originalist faction,” including Justices Thomas, Alito, Gorsuch, and Kavanaugh, signaled support for some deference by state courts to state legislatures when regulating federal elections. Read our analysis here.
In March 2022, the North Carolina State Legislature asked the U.S. Supreme Court to review the North Carolina state courts’ involvement in the legislature’s congressional redistricting map, arguing that the state courts inappropriately limited its redistricting authority (the Respondents’ reply brief is linked here). This petition came after the North Carolina Supreme Court ruled the map to be an “egregious and intentional partisan gerrymander,” and thus violative of the state constitution. Although the U.S. Supreme Court denied their application in an unsigned order, the Court granted a request to review the full case.
Question Presented in Moore: Whether a state’s judicial branch may nullify the regulations governing congressional elections prescribed by a state legislature, and replace them with regulations of the state courts’ own devising, based on state constitutional provisions?
Members of the state legislature (the Petitioners’ brief is linked here) are invoking the ISL theory to claim that the state courts violated the Elections Clause when they struck down the legislature’s redistricting maps. Ultimately, the Court will consider the scope of a state court’s authority under the Elections Clause to overturn state laws regulating congressional elections based on state constitutional provisions. Whether a majority of the Court will endorse the theory is uncertain. Notably, the scope of the theory would be just as important because there are several potential versions of the theory.
To view the amicus briefs submitted, click here.
March 2023 Update: In February 2023, the North Carolina Supreme Court, which recently gained a Republican majority, granted a request from Republican state lawmakers to rehear the original case while the U.S. Supreme Court case is pending. The rehearing, currently scheduled for March 14, 2023, opens up the possibility that the state supreme court’s February 2022 decision could be overruled, making the case moot and obviating the need for the U.S. Supreme Court to issue an opinion.
The Current by the Brookings Institution: Moore v. Harper: Who has the power to set state election rules? (Dec. 7, 2022)
The Political Scene from the New Yorker: A Supreme Court Case That Could Upend Elections (Dec. 5, 2022)
Common Law at the University of Virginia School of Law: The Supreme Court Case That Could Rewrite Democracy (Nov. 3, 2022)
Strict Scrutiny: Debunking the Independent State Legislature Fantasy (Sept. 5, 2022)
Lawfare: Derek Muller on Moore v. Harper and Independent State Legislature Doctrine (July 26, 2022)
National Constitution Center:
What is the “Independent State Legislature Doctrine”? – Part 2 (July 21, 2022)
What is the “Independent State Legislature Doctrine”? (Mar. 17, 2022)
Other Explainers & Reports:
Heritage Foundation: History and Consequences: Setting the Record Straight on the Elections Clause and Moore v. Harper (Dec. 1, 2022)
Congressional Research Service: State Legislatures, State Courts, and Federal Elections: U.S. Supreme Court to Consider Moore v. Harper (Nov. 1, 2022)
Bipartisan Policy Center: Independent State Legislature Theory Undermines Elections Principles (Oct. 31, 2022)
Center for American Progress: Supreme Court May Adopt Extreme MAGA Election Theory That Threatens Democracy (Sept. 26, 2022)
Democracy Docket: The Independent State Legislature Theory (July 14, 2022)
Cato Institute: The Limits of Independent State Legislature Theory (July 6, 2022)
Brennan Center: The ‘Independent State Legislature Theory,’ Explained (June 30, 2022)
Carolyn, Shapiro, The Independent State Legislature Theory, Federal Courts, and State Law, 90 U. Chi. L. Rev. 137 (2023). Read here.
Michael Weingartner, Liquidating the Independent State Legislature Theory, 46 Harv. J. of L. & Pub. Pol’y (forthcoming 2023). Read here.
Franita Tolson, The “Independent” State Legislature in Republican Theory, Tex. A&M L. Rev. (forthcoming 2023). Read here.
Vikram D. Amar & Akhil Amar, Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish, 2022 Sup. Ct. Rev. (2022). Read here.
Hayward H. Smith, Revisiting the History of the Independent State Legislature Doctrine, 53 St. Mary’s L.J. 445 (2022). Read here.
Leah M. Littman & Katherine Shaw, Textualism, Judicial Supremacy, and the Independent State Legislature Theory, 2022 Wisc. L. Rev. 1235 (2022). Read here.
Matthew A. Seligman, Disputed Presidential Elections and The Collapse of Constitutional Norms (Jan. 30, 2022) (unpublished manuscript) (on file with author). Read here.
Joshua A. Douglas, Undue Deference to States in the 2020 Election Litigation, 30 Wm. & Mary Bill Rts. J. 59 (2021). Read here.
Justin Levitt, Failed Elections and the Legislative Selection of Presidential Electors, 96 N.Y.U. L. Rev. 1052 (2021). Read here.
Eliza Sweren-Becker & Michael Waldman, The Meaning, History, and Importance of the Elections Clause, 96 Wash. L. Rev. 997 (2021). Read here.
Nathaniel F. Rubin, The Electors Clause and the Governor’s Veto, 106 Cornell L. Rev. 577 (2021). Read here.
Michael T. Morley, The Independent State Legislature Doctrine, Federal Elections, and State Constitutions, 55 Ga. L. Rev. 1, 14 (2020). Read here.
Hayward H. Smith, History of the Article II Independent State Legislature Doctrine, 29 Fla. St. U. L. Rev. 731 (2001). Read here.
Jim Jones, The North Carolina Supreme Court has Thrown SCOTUS a Lifeline, The Hill (Feb. 18, 2023, 11:00 AM).
Richard L. Hasen, Unfortunately, the Biggest Election Case of the Supreme Court Term Could Be Moot, Slate (Feb. 6, 2023, 5:50 AM).
Tabatha Abu El-Haj, The Profound Ahistoricism of Moore v. Harper, Election L. Blog (Dec. 6, 2022, 1:43 PM).
Vikram. D. Amar, What the ISL Moore v. Harper Case Can Tell Us About Principled Originalism, Verdict (Nov. 9, 2022).
Fred Wertheimer, Democracy on the Ballot—the “Independent State Legislature Theory” Will Not Empower State Legislatures to Override Presidential Election Results, Brookings Inst. (Nov. 4, 2022).
J. Michael Luttig, There is Absolutely Nothing to Support the ‘Independent State Legislature’ Theory, Atlantic (Oct. 3, 2022).
Helen White, The Independent State Legislature Theory Should Horrify Supreme Court Originalists, Just Security (June 30, 2022).
Vikram D. Amar, The Legal Trick That Could Undermine the 2024 Election—If the Supreme Court Doesn’t Shut It Down, Time (June 30, 2022, 3:43 PM).
Lawrence Lessig & Jason Harrow, State Legislatures Can’t Ignore the Popular Vote in Appointing Electors, Lawfare (Nov. 6, 2020, 11:20 AM).
Moore v. Harper – Case Previews:
Amy Howe at SCOTUSblog (Dec. 6, 2022): In high-stakes election case, justices will decide validity of “independent state legislature” theory.
Michael Sozan & Genna Cifelli at Center for American Progress (Dec. 1, 2022): 9 Ways the Supreme Court’s Decision in Moore v. Harper Could Harm Democracy
Helen White at Just Security (Oct. 28, 2022): As Moore v. Harper Takes Shape, a Broad Coalition Takes Aim at the Independent State Legislature Theory
House Committee on Administration – Hearing on the Independent State Legislature Theory and its Potential to Disrupt our Democracy (July 28, 2022)
1. Richard Pildes, Professor of Constitutional Law, New York University School of Law
2. Carolyn Shapiro, Professor of Law and Associate Dean for Academic Administration and Strategic Initiatives, Chicago-Kent College of Law
3. Eliza Sweren-Becker, Counsel, Democracy Program, Brennan Center for Justice, Washington, D.C.
To train the next generation of lawyers in the law and practice of voting rights, ballot access, campaign finance, election administration, and democracy protection.