Deficiencies in the Independent State Legislature Theory

As the integrity of elections continues to be falsely questioned and as more extreme legal measures are being employed to combat this supposed election fraud, a theory that has survived on the fringes of legal thought has suddenly been thrust into litigation across the country: the Independent State Legislature Theory (ISL or The Theory). Though the theory has drastically changed in the last twenty years, in broad terms, the theory is that the Constitution vests within state legislatures unilateral power to control the federal election process for Congress and the President. This is a fundamental shift from past constitutional interpretations by the Supreme Court. The Court has broadly interpreted the legislature’s power to be within the greater lawmaking process, meaning that any laws passed by state legislatures would be subject to the same process as any other laws. Most importantly, the laws could be challenged based on violations of state constitutional provisions. The textualist theory’s roots trace back to former Chief Justice William Rehnquist’s concurring opinion in Bush v. Gore. He claimed that legislatures should be given special deference. From those beginnings, the theory has evolved into granting state legislatures plenary power to control elections, with the only restraints being U.S. Constitutional provisions. The contemporary interpretation includes the sense that state constitutions cannot be applied to state legislative actions regarding federal elections. The widespread acceptance of this theory, which three sitting Supreme Court justices have hinted at supporting, would have multiple adverse effects across elections and law. Judicial review within state courts would be severely weakened, the power and binding nature of state constitutions would be rendered obsolete within the electoral process, and the basic principles of due process would be cast aside in the name of power. In a country founded on the principles of checks and balances and separation of powers, this theory stands in defiant opposition to the U.S.’s democratic institutions.