Independent state legislature theory facts for kids

The independent state legislature theory (often called ISL) was a legal idea about who controls rules for national elections in a state. This idea suggested that only a state's elected lawmakers (the legislature) should decide how federal elections, like those for President or Congress, are run. It argued that other parts of the state government, like state courts, governors, or even the state's own constitution, should not be able to change these rules.

People who supported ISL believed that if a state law about federal elections went against the state's constitution, only federal courts, not state courts, could fix the problem.

However, many people argued against ISL. They said it would give too much power to just one part of a state's government. This could be unfair and go against important American ideas like checks and balances and federalism (sharing power between state and federal governments).

In June 2023, the U.S. Supreme Court made a big decision in a case called Moore v. Harper. The Court ruled 6-3 that the Elections Clause of the U.S. Constitution does not give state legislatures total power over elections. This decision rejected the ISL theory.

How the Independent State Legislature Theory Came Up

The idea of the independent state legislature theory first appeared during the 2000 U.S. presidential election. Lawyers for then-candidate George W. Bush used it to try and stop a vote recount in Florida.

More recently, the ISL theory was discussed again in 2022. This was during the process of drawing new voting districts for Congress. States redraw these districts every ten years after the census.

The Moore v. Harper Case

In the case of Moore v. Harper, Republican lawmakers in North Carolina had drawn new voting maps for Congress. These maps were designed to favor Republican candidates. The North Carolina Supreme Court said these maps were unfair and went against the North Carolina Constitution.

The North Carolina lawmakers then asked the U.S. Supreme Court to overrule their state's court. They argued that, based on the ISL theory, only they had the power to draw these maps.

The U.S. Supreme Court had actually rejected a similar idea in 2015. But some Supreme Court justices later showed interest in adopting parts of the ISL theory.

However, in June 2023, the Supreme Court ruled 6-3 in the Moore case. They decided that the Elections Clause of the U.S. Constitution does not give state legislatures unchecked power over federal elections. This decision officially rejected the ISL theory.

Many legal experts strongly disagreed with the ISL idea. Even some scholars who usually interpret the Constitution based on its original meaning filed papers with the Supreme Court rejecting the theory.

What the Theory Said

Arguments for the Theory

Supporters of the ISL theory pointed to specific parts of the U.S. Constitution.

• Article I, Section 4, Clause 1 (the Elections Clause) says: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof..."
• Article II, Section 1, Clause 2 says: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..."

The phrase "the Legislature thereof" in both these clauses was key to the ISL theory. Supporters argued that this phrase meant only the state's elected lawmakers could set election rules. They believed it did not include other parts of the state government, like courts or governors.

Why People Criticized the Theory

The ISL theory faced a lot of criticism.

Former federal judge J. Michael Luttig said there was "absolutely nothing" to support the ISL idea. Other legal experts argued that the people who wrote the Constitution understood that state legislatures were "created and constrained by its state constitution."

Critics also said that ISL was "fatally inconsistent" with basic ideas of federalism (power sharing) and the separation of powers (different branches of government having different roles). They called it an "unprecedented, unconstitutional, and potentially chaos-inducing intrusion into state election law."

Practically, if ISL had been adopted, it would have meant that:

• The general public (through ballot initiatives, where citizens vote directly on laws)
• Governors (who are elected by the whole state)
• State courts

...would have had no say in changing election laws or federal congressional boundaries. This would be true even if those laws or boundaries violated the state's own constitution.

Experts worried that adopting ISL could cause a lot of confusion about state election laws. Some feared it could allow legislatures to draw very unfair voting maps (called gerrymandering) and even affect future presidential elections. Many believed this theory would be a serious threat to American democracy.

In a legal brief submitted for the Moore v. Harper case, a group of former public officials and judges from both political parties warned against a broad view of the ISL theory. They said it "would essentially hand the future of democratic representation in the states to those motivated to entrench political power in a single party."