The Independent State Legislature Doctrine, Federal Elections, and State Constitutions

Abstract

The U.S. Constitution does not confer authority to regulate federal elections on states as entities. Rather, it grants that authority specifically to the “Legislature” of each state. The “independent state legislature doctrine” teaches that a state constitution is legally incapable of imposing substantive restrictions on the authority over federal elections that the U.S. Constitution confers directly upon a state’s legislature. Over the past 130 years, the U.S. Supreme Court has repeatedly adopted conflicting positions on this doctrine without recognizing its deep historical roots or normative justifications.

The independent state legislature doctrine reflects the prevailing understanding of states, Congress, and other actors in the nineteenth century. Throughout that period, the doctrine was consistently applied across a broad range of circumstances. It protects important structural considerations and is consistent with the political theory underlying the U.S. Constitution’s election-related provisions. The U.S. Supreme Court could reincorporate the doctrine into modern American law with minimal disruption to either its precedents or state election systems. Moreover, the doctrine may present a
potentially substantial obstacle to the use of state constitutions to combat partisan gerrymandering in congressional elections.

Keywords: political gerrymandering, partisan gerrymandering, constitutional law, voting rights, right to vote, state constitution, federalism, Elections Clause, Presidential Electors Clause, election contest, Nineteenth Century, originalism, structuralism, intratextualism, Supreme Court, redistricting