The 'Independent State Legislature Theory,' Explained

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https://www.brennancenter.org/our-work/research-reports/independent-state-legislature-theory-explained

The ‘Independent State Legislature Theory,’ Explained

This dubious legal theory could have dramatic consequences for elections.

Ethan Herenstein
Thomas Wolf

LAST UPDATED: June 30, 2022
PUBLISHED: June 6, 2022

There’s a thread that links the partisan gerry­man­der­ing of congres­sional maps in North Caro­lina, attempts to dissolve the Wiscon­sin Elec­tion Commis­sion, and efforts to over­throw the 2020 pres­id­en­tial elec­tion in Pennsylvania and else­where. In each case, the parti­cipants have invoked a dubi­ous inter­pret­a­tion of the Consti­tu­tion called the “inde­pend­ent state legis­lature theory.”

Long releg­ated to the fringe of elec­tion law, the theory will soon be front and center before the Supreme Court, which has agreed to hear a case concern­ing the North Caro­lina congres­sional maps in the fall. If the Supreme Court were to adopt the theory, it would radic­ally change our elec­tions.

What is the inde­pend­ent state legis­lature theory?

The inde­pend­ent state legis­lature theory is a read­ing of the Consti­tu­tion, pushed in recent years by a small group of advoc­ates, that would give state legis­latures wide author­ity to gerry­mander elect­oral maps and pass voter suppres­sion laws. It has even been used as polit­ical cover to try to over­turn elec­tions.

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.

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1. It came from the Bush V Gore decision

I remember reading in the decision that "State legislatures having the power to have an election, can take the election away at any time" and thinking that is the most fucked up and unAmerican thing I have ever read. I made a sign that looked like a grave stone with the Death of Democracy on it, and went to the capitol building in Sacramento. There were only about 30 people there protesting. Very sad. That was almost 23 years ago now. Now we are here...