Voting Without State Checks and Balances? A Close Look at the Independent State Legislature Theory

The Independent State Legislature Theory (ISLT) is front and center in one of this Supreme Court term’s most-watched cases, Moore v. Harper. In this program prominent scholars and practitioners dissect the meaning and the import of the ISLT, and discuss the ramifications of a Supreme Court endorsement of the ISLT in the Moore case. The ISLT, first proposed in the aftermath of the 2000 election, has gained prominence during litigation over the 2020 election and has been tacitly endorsed by multiple Supreme Court justices. The theory holds that the Electors Clause and the Elections Clause in the U.S. Constitution provide state legislatures with the authority to make decisions relating to federal elections without the oversight of state courts and despite the existence of state constitutional provisions purporting to govern such elections. A broad adoption of the ISLT could impact, for example, states’ ability to ban political gerrymandering, and to set up and maintain independent redistricting commissions. This program explores whether the ISLT has any valid constitutional underpinnings, the historical origins of the relevant constitutional clauses, and the challenges that a Moore decision relying upon the ISLT would present for our democracy.

Marcy L. Kahn
, Chair, Rule of Law Task Force, Associate Justice, New York Appellate Division, First Department (Retired)

Anil Kalhan
, Professor of Law, Thomas R. Kline School of Law, Drexel University, Visiting Professor of Law, Yale Law School

Carolyn Shapiro
, Professor of Law, Founder and Co-Director, Institute on the Supreme Court of the United States, Chicago-Kent School of Law     
Carter G. Phillips, Sidley Austin LLP, Counsel of Record for Amicus Curiae Conference of Chief Justices in Moore v Harper 
Thomas Wolf, Deputy Director, Democracy Program, The Brennan Center for Justice

Sponsoring City Bar Committee:
Rule of Law Task Force, Marcy Kahn, Chair

Co-Sponsoring City Bar Committee:
Election Law, Rachael Harding, Chair

Co-Sponsoring Organization:
The Brennan Center for Justice