Carolyn Shapiro

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Volume 90.1
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.

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. 

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