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

69 Pages Posted: 5 Mar 2022 Last revised: 11 Oct 2022

Date Written: February 28, 2022

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, including Supreme Court justices, of the ISLT assert that state constitutions’ substantive provisions cannot apply to state election laws governing federal elections, and sometimes argue that state courts’ statutory interpretation of such laws must be rigidly textualist and are reviewable, apparently de novo, by federal courts and that delegations of decision-making authority to non-legislative 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 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.

Keywords: elections, voting, independent state legislature, shadow docket, statutory interpretation, state courts, federalism

Suggested Citation

Shapiro, Carolyn, The Independent State Legislature Theory, Federal Courts, and State Law (February 28, 2022). University of Chicago Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4047322 or http://dx.doi.org/10.2139/ssrn.4047322

Carolyn Shapiro (Contact Author)

IIT Chicago-Kent College of Law ( email )

565 West Adams St.
Chicago, IL 60661
United States

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