ELECTION INTEGRITYSCOTUS Mulls the Independent State Legislature (ISL) Theory
The United States Supreme Court heard oral arguments on 7 December in what is widely seen as one of the most significant cases in the country’s history to address fundamental questions of federalism. The case, Moore v. Harper,implicates what the Constitution means when it delegates to each state’s legislature the job of regulating congressional elections and the appointment of presidential electors.
The United States Supreme Court heard oral arguments on 7 December in what is widely seen as one of the most significant cases in the country’s history to address fundamental questions of federalism.
Moore v. Harper asks whether the North Carolina Supreme Court violated the U.S. Constitution when it struck down the state legislature’s gerrymandered congressional map for violating the North Carolina Constitution. More broadly, the case implicates what the Constitution means when it delegates to each state’s legislature the job of regulating congressional elections and the appointment of presidential electors.
Is the legislature subject to the traditional oversight of state courts? Or can the legislature act alone, with no judicial oversight–a concept known as the “independent state legislature theory.” The theory asserts that the state legislatures’ power is so exclusive, according to a reading of the U.S. Constitution, that they can ignore the requirements even of their own state constitution.
If the Court breathes life into what had previously been considered a fringe legal doctrine, some argue it would upend centuries of legal tradition. No longer would state constitutions and courts be a check on election laws. The Supreme Court would be empowered to decide when state courts have overstepped their authority. Thousands of election policies and laws put in place by state agencies or enacted through ballot initiatives could be at risk of invalidation.
Here, following the oral arguments earlier this month, Stanford Law School’s Michael McConnell, the Richard and Frances Mallery Professor and Director of the Constitutional Law Center, in a conversation with Monica Schreiber and Sharon Driscoll of the SLS Legal Aggregate, weighs in on the case and its potential impact.
Monica Schreiber and Sharon Driscoll: How would you frame the issues in this case?
Michael McConnell: Article I, Section 4, Clause 1, provides that “the times, places, and manner” of holding elections for the U.S. Senate and House are to be “prescribed in each State by the Legislature thereof.” In Moore v Harper, the two parties and most of the amici have taken one of two extreme positions on the meaning of this clause.
