The Independent State Legislature Claim, Textualism, and State Law

Abstract

During the litigation surrounding the 2020 election, the independent state legislature claim (“ISLC”) , emerged as a potentially crucial factor in the presidential election. The ISLC rests on the Electors and Elections Clauses of the Constitution, which assign decisions about federal elections to state legislatures. Maximalist versions of the ISLC assert that state constitutions’ substantive provisions cannot apply to state election laws governing federal elections, 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.

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 maximalist ISLC is an unprecedented, unconstitutional, and potentially chaos-inducing intrusion into state election law. Those promoting this maximalist interpretation skip the crucial step of statutory interpretation—asking what the state legislature actually did. As a result, the maximalist ISLC 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