During the recent Senate Rules Committee hearing on Electoral Count Act reform, Senator Angus King (I-ME) asked a question that seems to be on many minds: What is the independent state legislature theory and how would it impact the casting and counting of electoral votes under the Electoral Count Act? The bipartisan panel of experts was clear in response. The Electoral Count Act, current or reformed, would continue to constrain state legislatures even if the Supreme Court adopts the independent state legislature theory and frees state legislatures from state-level checks on their power to regulate federal elections. Indeed, these two areas of election law have little to do with one another. But with the landscape developing quickly and the stakes high, it is helpful to explore the issues in detail.
We offer this analysis, adding to the work of Professors Rick Pildes, Ned Foley, Derek Muller, and Rick Hasen (among others), as well as organizations including the Cato Institute, in an effort to bring more clarity to two topics that are now among the most urgent in election law.