In December 2022, the United States Supreme Court heard oral arguments in Moore v. Harper. The case addresses whether the North Carolina Supreme Court possesses the authority to strike down a redistricting map drawn by the state legislature. Petitioners contend that the state legislature has no such authority under the United States Constitution, citing a novel interpretation of the Elections Clause known as the “independent state legislature” (“ISL”) theory. The ISL theory is not a unified theory, but rather a constellation of related doctrinal positions that revolve around a core precept: ordinary governing principles by which state courts review the legality of state laws under state constitutions do not apply to state legislatures regulating federal elections.
Proponents of the theory argue that the state legislature can exercise authority to regulate federal elections immune to the checks and balances that typically apply to state legislative action. In deciding Moore, the Supreme Court could endorse some version of this theory, which would be profoundly disruptive to election administration at all levels and likely precipitate election chaos. This Article analyzes how validation of at least some version of the theory would upend election administration and impede local elections by effectively creating a two-tiered system for administering elections.
If unchecked by state judicial or constitutional constraints, partisan state legislatures could erode state-based voting rights protections to the detriment of representative democracy. Though the exact effects on American democracy are difficult to fully predict, this Article concludes that a failure to emphatically rebuke Moore would likely prove destabilizing to the Nation’s election system.
Moore v. Harper and the Consequential Effects of the Independent State Legislature Theory,
Fordham L. Voting Rts. & Democracy F.
Available at: https://ir.lawnet.fordham.edu/vrdf/vol1/iss2/3