The Independent State Legislature Theory, Federal Courts, and State Law

Carolyn Shapiro

Professor of Law and Co-Director, Institute on the Supreme Court of the United States, IIT Chicago-Kent College of Law.

This Article has benefited from the comments of Maggie Blackhawk, Nicholas Stephanopoulos, Alan Erbsen, Mark Krass, Gerard Magliocca, Richard Briffault, Joshua Douglas, Ethan Herenstein, Hayward Smith, Christopher Schmidt, Mark Rosen, Harold Krent, Stephen Heyman, and from the suggestions of additional participants at the 2021 Constitutional Law Colloquium at George Washington University and at the 2022 National Conference of Constitutional Law Scholars. Thanks are also due to Adam Bonin and Joshua Karsh. Taylor Iaculla provided excellent research assistance.

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Abstract

During the litigation surrounding the 2020 election, the independent state legislature theory (ISLT) emerged as a potentially crucial factor in the presidential election. The ISLT rests on the Electors and Elections Clauses of the Constitution, which assign decisions about federal elections to state legislatures. Proponents of the ISLT, including Supreme Court Justices, assert that state constitutions’ substantive provisions cannot apply to state election laws governing federal elections; that state courts’ statutory interpretations of such laws must be rigidly textualist and are reviewable, apparently de novo, by federal courts; and/or that delegations of decisionmaking authority to nonlegislative bodies may be limited, albeit in unspecified ways. The ISLT is at issue in current litigation involving congressional redistricting that the Supreme Court will hear during its October 2022 Term.

This Article charts the emergence of this unprecedented reading of the Electors and Elections Clauses and examines both its justifications and its practical implications. Its central claim is that the ISLT, particularly in its maximalist form, is an unprecedented, unconstitutional, and potentially chaos-inducing intrusion into state election law. Those promoting the ISLT skip the crucial step of statutory interpretation—asking what the state legislature actually did. As a result, the ISLT undermines its own claims to promote political accountability and predictability by failing to engage in the question of whether a legislature has in fact rejected the state constitution and other aspects of state law. The Article concludes with suggestions for the Supreme Court, Congress, state actors, and litigants to protect the continued independence of state election law.

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