The Dangerous Independent State Legislature Theory

Abstract

In 2020, conservative justices and the Trump Campaign championed a theory, known as the independent state legislature doctrine, that claims voting rights protections in state constitutions do not apply to the election rules that state legislatures set for the federal elections in their states. Under the theory, state courts cannot review and enjoin these state election laws for state constitutional violations. This Article exposes the flaws and dangers of the independent state legislature theory. It deconstructs the justifications for its utility, revealing them as undertheorized and based on flawed assumptions of legislative behavior and flawed understandings of constitutional and institutional design. As for the danger, while our constitutional system generally provides dual federal-state protections for civil rights, the independent state legislature theory would effectively remove state constitutions as a safeguard for voting rights. In this way, the theory would make voting rights the least protected civil right.

Keywords: voting rights, election law

JEL Classification: voting rights, election law