Supreme Court to hear Independent State Legislature Theory case The "independent state legislature theory" could give state legislatures independent power to put in place all manner of election rules, without any available review by state courts.


Supreme Court to hear controversial election-law case

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The U.S. Supreme Court hears arguments today in a case that could radically reshape the way federal elections are conducted. At issue is the so-called independent state legislature theory, which could give state legislatures virtually unchecked power over federal elections. NPR legal affairs correspondent Nina Totenberg has more.

NINA TOTENBERG, BYLINE: The independent state legislature theory, referred to as the ISL, could give state legislatures independent power to put in place all manner of election laws and rules without any review by state courts. In its most extreme form, the theory could eliminate not just state judicial power over elections but governors' vetoes, and it might at least arguably allow state legislatures to certify presidential electors who were not approved by the voters, an idea that Donald Trump sought unsuccessfully to put forth in 2020.

The case before the court is perhaps a more modest exercise of the conservative ISL theory. The North Carolina state Legislature, dominated by Republicans, is seeking to overturn a decision by the state Supreme Court. That court ruled that the Republican Legislature, in drawing new congressional districts after the 2020 census, had violated the state constitution with an extreme partisan gerrymander. The court twice ordered the Legislature to redraw the map, and when those efforts came up short, the state court, with the aid of court-appointed election experts, redrew new lines itself. The result was that in a state that is closely divided between Republican and Democratic voters, the new map produced an equally divided congressional delegation - seven seats for each party instead of the lopsided 10 or 11 GOP seats that would have been produced by the Republican plan. The Republican Legislature then appealed to the U.S. Supreme Court.

Timothy Moore is the Republican speaker of the Statehouse of Representatives.

TIMOTHY MOORE: If you look at our state constitution, nowhere does it mention at any point involvement by the courts in any way. What this court did, they did a Democratic gerrymander of the congressional districts.

TOTENBERG: The ISL theory that Moore and other conservative Republicans put forth is based on the election clause in the U.S. Constitution. It says that the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. The North Carolina Legislature, backed by the Republican National Committee, reads that clause as meaning that only state legislatures may make election rules and laws unless the Congress of the United States passes contrary legislation. That arguably would leave out courts and governors. North Carolina's Democratic governor, Roy Cooper, sees this case as the canary in the coal mine.

ROY COOPER: We know that at the end of the day, if this court rules in favor of the Republicans, that state legislatures across the country will have exclusive control over running federal elections in their states, which stands our system of checks and balances on its head.

TOTENBERG: Also opposing the Republican Legislature is a vast array of election law experts, judges appointed by both Republicans and Democrats and some important constitutional scholars, including Northwestern law professor Steven Calabresi, co-founder and current co-chair of the conservative Federalist Society Board of Directors. Along with other scholars, he contends that the word legislature as used at the time of the founding refers to the whole structure of state government, not just the legislature as we know it today.

STEVEN CALABRESI: This is a huge national power grab because it suddenly says those state constitutions don't matter in determining what the state lawmaking process is. Instead, the accidental fact that the elections clause uses the word legislatures somehow trumps state constitutions, gubernatorial vetoes and state judicial review.

TOTENBERG: Lawyer Neal Katyal will make a related argument in the Supreme Court today.

NEAL KATYAL: The state Supreme Court found that the redistricting plans violated the state constitutions and, in particular, the rule to guide against malapportionment. And indeed, the court went so far as to find it was more malapportioned than 99.999% of plans that could have been adopted.

TOTENBERG: Lawyer David Thompson, representing the North Carolina Republican Legislature, says state constitutions are not permitted to deal with the problem of extreme partisan gerrymandering in the drawing of district lines for the U.S. House.

DAVID THOMPSON: I'm saying a state constitution could not.

TOTENBERG: State courts, he says, can enforce procedural rules.

THOMPSON: But cannot enforce substantive limitations.

NATHAN HECHT: So that's not really a workable distinction.

TOTENBERG: Nathan Hecht is the chief justice of the Texas Supreme Court and is a member of the Conference of Chief Justices, which took the unusual step of filing a brief in this case.

HECHT: It would be hard to even know exactly what that meant.

TOTENBERG: The chief justice's brief, while nominally not taking sides, says that were the U.S. Supreme Court to adopt the position advocated by the North Carolina state Legislature, the result would be, quote, "chaos, flooding the federal courts with every state dispute imaginable." Election law expert Richard Hasson explains why.

RICHARD HASEN: State administrators fill in the gaps. They resolve ambiguities. Sometimes state attorneys general issue a guidance. Local election officials interpret and implement laws. So these end up in state court when there's a dispute. What would happen if the theory of the Republican legislators were accepted is that every one of those disputes would also turn into a federal dispute.

TOTENBERG: Just how the very conservative U.S. Supreme Court will react to all of this is unclear. The court's three most conservative justices, Thomas, Alito and Gorsuch, have previously indicated support for the independent state legislature theory. The question is whether there are two more to make a majority.

Nina Totenberg, NPR News, Washington.

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