The Limits of Independent State Legislature Theory

Andy CraigAt the end of a term with many high-profile and controversial decisions, the Supreme Court agreed to hear a case next term that could upend election law in the United States. InMoore v. Harper, the court agreed to hear an argument known as the independent state legislature (ISL) theory. This case has the potential to have a wide-ranging impact and many election law experts aresounding the alarm.I have beencritical of the ISL theory and mostly unpersuaded of its merits, at least in its more radical forms with regard to elections. Helen White of Protect Democracy offersa good explanation of why originalists should reject ISL, and howrecent research has demonstrated it conflicts with the understanding of the Founders and historical practice dating all the way back to the ratification era. I largely agree with her analysis and the scholarship she cites.However, the ISL theory ’s potential effect on presidential elections is being misunderstood and overstated by some critics of the conservative majority on the Supreme Court. Even as somebody who mostly disagrees with the theory, I ' d like to sound a note of caution. Popular progressive talk show host Thom Hartmann, for example,flatly endorsed the interpretation that ISL would enable the worst possible election subversion schemes, and that the Supreme Court is plotting to use it to steal the 2024 election for Republicans. This is wrong, and it ’s important for even those who disagree with ISL doctrine to be able to e...
Source: Cato-at-liberty - Category: American Health Authors: Source Type: blogs