# Independent State Legislature Theory **Independent State Legislature Theory (ISL Theory)** is the constitutional-law doctrine that state legislatures have plenary, judicially-unreviewable authority over federal-election administration, including the rules for federal elections, congressional redistricting, and (in some versions) the appointment of presidential electors. The theory reads two specific constitutional clauses — the Elections Clause (Article I, Section 4) and the Electors Clause (Article II, Section 1) — as granting power to "the Legislature" of each state in ways that no state court, state constitution, or state executive can constrain. If accepted, the theory would substantially restructure U.S. federalism in election matters. State courts would be unable to review state-legislative election laws for compliance with state constitutions. Governors couldn't veto election bills. State-constitutional rights to vote would become unenforceable against state-legislative restrictions. In the strongest version of the theory, state legislatures could potentially appoint presidential electors directly, regardless of popular-vote results in their states. ## Origin and development **[[Bush v. Gore]] (2000).** The theory emerged in modern form from concurring opinions in *Bush v. Gore* (2000), particularly Chief Justice Rehnquist's concurrence joined by Scalia and Thomas, which argued that the Florida Supreme Court's interpretation of state election law had exceeded its constitutional role under the Electors Clause. **Bush v. Palm Beach County (2000).** A precursor decision that suggested federal review of state-court election interpretations is appropriate under the Electors Clause. **Eastman memo (2020).** John Eastman's memoranda to the [[Trump White House]] in late 2020 cited ISL Theory as a basis for state legislatures to substitute alternative slates of presidential electors for the slates produced by their states' popular votes. Eastman's argument was used to justify Trump's pressure on [[Vice President Pence]] to refuse to count electors from disputed states on January 6, 2021. **Moore v. Harper (2023).** The Supreme Court's most direct ISL Theory ruling. North Carolina Republican legislators challenged the state supreme court's ruling that the state legislature's congressional map was an unconstitutional partisan gerrymander under the state constitution. The Republicans argued that the state supreme court had no authority to constrain the legislature's congressional districting under the Elections Clause. The Supreme Court ruled 6-3 against the strongest version of ISL Theory — state courts can review state-legislative election laws — but explicitly preserved a narrower form: federal courts can review whether state-court interpretations of state law have exceeded "the ordinary bounds of judicial review." The ruling rejected the maximalist version but left enough doctrinal space that ISL-style challenges continue. ## Why the theory is problematic **Textual implausibility.** The constitutional text empowers "the Legislature" of each state, but "the Legislature" is not a free-floating body — it operates within state constitutions that constrain it. The framers were familiar with state constitutions and didn't write text granting state legislatures power exempt from state-constitutional review. Reading "the Legislature" to mean "the Legislature exempt from normal state-constitutional constraints" requires textual gymnastics. **Historical evidence against.** State legislatures throughout U.S. history have been understood to operate within state constitutions, including in election administration. Decades of state-supreme-court rulings have constrained state-legislative election laws based on state constitutions; this practice has been treated as constitutional throughout U.S. history. The historical record contradicts the strong version of the theory. **The consequences are antidemocratic.** The theory's implications are not subtle. State legislatures could (1) override popular-vote outcomes in presidential elections, (2) enact election laws state courts couldn't review, (3) gerrymander congressional districts immune to state-court review. The aggregate effect is removing checks on state-legislative power over elections — checks that have been the primary defense against electoral manipulation. ## KB significance **The most consequential election-related legal doctrine of the 2020s.** ISL Theory has the potential to restructure how U.S. federal elections work. *Moore v. Harper* (2023) rejected the strongest version but left a narrower form alive. Future cases will determine how much the narrower form constrains state-court review. The doctrinal stakes are large; the political stakes are larger. **The Eastman / January 6 connection.** The most extreme practical use of ISL Theory was Eastman's argument that state legislatures could substitute electors after Election Day if they disputed the popular-vote results. The January 6 attempt to stop electoral certification was partly motivated by this framework. Whether ISL Theory is invoked in similar 2028 election disputes is a live question. **The structural problem with election integrity arguments.** A specific irony: ISL Theory is promoted by movements that frame their arguments in "election integrity" terms. But the theory's practical effect is to *reduce* the institutional checks on state-legislative election manipulation — exactly the kind of check that election-integrity arguments would normally favor. The framework's political function (enabling Republican-controlled state legislatures to act without state-constitutional or state-judicial constraint) is more important to its proponents than its consistency with "integrity" rhetoric. **The federalism inversion.** Traditional conservative legal philosophy has emphasized federalism — states should have authority over their own affairs, including election administration. ISL Theory inverts this: state legislatures should have authority *over state constitutions and state courts*, with federal courts available to enforce the federal-constitutional inversion. The framework is anti-federalism in operation even when promoted under federalism rhetoric. ## See also - [[John Eastman]] — the lawyer who most aggressively advanced ISL Theory in 2020-2021 - [[Moore v. Harper]] — the 2023 Supreme Court ruling that rejected the strong form of ISL Theory - [[Gerrymandering]] — what ISL Theory would protect from state-court review - [[Stop the Steal]] — the political project that invoked ISL Theory for electoral disruption - [[Federalist Society]] — the institutional infrastructure that developed and promoted the theory