Is Independent State Legislature Theory Legally Sound?Īccording to respected legal scholars, ISL theory is a misreading of the Constitution and American history. Secretaries of State, who often maintain significant control over the election process, and bodies like independent redistricting committees would be sidelined entirely. If the state legislatures pass a law in violation of their own state constitution, ISL theory holds that the state Supreme Court is powerless to block it.
They believe that the Constitution actually gives state legislative houses alone almost complete authority over elections, only subject to federal regulations established by Congress. Proponents of Independent State Legislature theory disagree.
State courts can shoot down legislation that violates the state constitution, and governors can veto election laws just like any other legislation. Two and a half centuries of practice and a hundred years of precedent hold that the legislature regulates elections by the regular procedures that govern state lawmaking.
THE PLOT TO SUBVERT AN ELECTION HOW TO
The first reads “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof but the Congress may at any time by Law make or alter such Regulations.”Īnd the second reads “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”īasically, it’s up to states to decide how to administer their elections and award electoral votes. The theory primarily relies on the Elections Clause and the Presidential Electors Clause of the Constitution. In the two decades since, Republican legislatures in states such as Arizona, Kansas, and North Carolina have argued for Independent State Legislature theory to try to nullify checks on their authority. Gore decision when Chief Justice William Rehnquist wrote that state judges have limited power to regulate elections. It came to prominence in the 2000 Bush v. Independent State Legislature theory, or ISL theory, holds that state legislatures have the exclusive power to regulate elections. Independent State Legislature Theory Explained Harper, that could allow state legislatures to have near-complete, unchecked control over elections. That’s the crux of a case the Supreme Court has decided to hear this fall, Moore v. But what if judicial review was outlawed? In that case, we would rely on the courts to challenge any illegal power-grab blatantly subverting the result of the election. Dangerous plots abound, but the most likely to be fatal for our democracy runs through the state legislatures.Īs Pence’s legal counsel, Greg Jacob, revealed in the January 6th hearings, Pence may have been willing to ignore the result of an election in a state if the legislature of that state put forward an alternative slate of electors. The January 6th hearings have proven that the threats to our elections come from all directions: the White House, a violent mob, secretaries of state, legal machinations, alternative electors claiming their state went for Trump with a senator’s aid.
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