In my testimony on the independent state legislature theory (ISLT) to the House Administration Committee, I identified seven different potential versions of such a doctrine, should the Court endorse it at all. That highlights the fact that the question is not just whether the Court endorses such a doctrine, but what the scope of that doctrine would be. I thought it might be helpful to list those different potential versions here.
In my testimony, I address the practical consequences of each of these different versions, as well as the historical evidence, for or against, any of these versions. Here, I will just list these versions without elaborating upon them. One can find endorsements of each, or at least suggestions of support for them, either in statements individual Justices have issued or in well-informed commentary. Also, if the Court endorses the doctrine, that doctrine could include more than one of these specific versions.
I’ve listed them more or less in order of how wide-ranging the consequences would be of each version, with the most sweeping versions listed first:
1. State constitutions. State constitutions cannot impose substantive constraints on state legislation regulating national elections
2. Voter-initiated laws. Voter-initiated legislation cannot impose substantive constraints on state legislation regulating national elections
3. General v. Specific State Constitutional Provisions. State constitutions or voter-initiated laws can impose substantive constraints on such legislation, but cannot transfer permanently transfer entirely out of the legislature’s hands a fundamental function involving state regulation of national elections (such as redistricting)
4. Regulating v. Permanently Displacing State Legislatures. State constitutions can impose substantive constraints on state legislation regulating national elections if those constraints are specific enough, but state courts cannot enforce more general state constitutional provisions against state legislation regulating national elections.
5. Direct Conflicts with State Election Laws in the Administration and Interpretation of State Election Laws. State executive officials and courts cannot invoke general principles or canons of interpretation that generate a result which directly contradicts or conflicts with a provision in state election law regulating national elections.
6. Straying ”Too Far” from State Election Laws in Administration and Interpretation of State Election Laws. Even if executive action or state judicial interpretation does not generate a result that directly conflicts with state election law, the ISLT precludes executive action or state judicial interpretation that strays too far from the text of state election laws that regulate national elections.
7. Limits on State Court Remedial Relief. State courts can enforce substantive provisions in state constitutions or voter-initiated enactments, but if the courts find a violation, they must give the legislature the first opportunity to decide how to remedy that violation, at least absent urgent time constraints.
Note that I do not include on this list a version in which state legislation regulating national elections could not be subject to gubernatorial veto. I’m not aware of any major defender of the ISLT who argues for that version.