Over the last decade, the emergence of an imperial United States Supreme Court—currently armed with the largest conservative majority since the 1930s—has radically reshaped federal voting rights protections. During the litigation surrounding the 2020 election, however, an obscure threat reemerged. The fringe independent state legislature (“ISL”) theory is a potentially revolutionary constitutional theory that could lead to widespread voter disenfranchisement. Proponents of the theory, including Supreme Court Justices, posit, in part, that the United States Constitution vests state legislatures with plenary power to construct rules for federal elections—unbound by state constitutions and free from state judicial review.
Once a refuge for vulnerable voters, recent Supreme Court decisions have left no question that federal courts are restrained in the fight against the increasing number of voter suppression measures enacted by state legislatures. Although the reaction from political leaders has focused on federal legislation, this Article contends that even stronger protections are required at this critical moment. With attacks on the franchise in state legislatures and the Nation’s judiciary, voting rights advocates must lead a national conversation around amending the United States Constitution to affirmatively grant the right to vote.
Accordingly, this Article argues that robust federal legislation and a constitutional amendment enshrining an affirmative right to vote would settle a centuries-long debate about the accessibility of our constitutional democracy’s most essential feature and bring the United States up to par with other democracies.
The Looming Threat of the Independent State Legislature Theory and the Erosion of the Voting Rights Act: It is Time to Enshrine the Right to Vote,
Fordham L. Voting Rts. & Democracy F.
Available at: https://ir.lawnet.fordham.edu/vrdf/vol1/iss2/4