What the Independent State Legislature Theory Would Not Do

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I’ve written a number of times on what the ISLT would not do, as have Derek Muller, Pam Karlan, and Ned Foley, even if the Court were to adopt the most expansive version of the doctrine. In addition, we have laid out the federal constitutional constraints that would still constrain a state legislature’s attempt to subvert the outcome of any election — state and federal.

It’s worth calling attention to the fact that the Republican National Committee agrees with us on all these legal points. In an amicus brief the RNC filed in the Moore v. Harper case in support of the ISLT, the RNC nonetheless agrees about these continuing constraints on state legislatures. Indeed, the brief devotes several pages to making these points forcefully:

  1. The ISLT would not permit state legislatures to ignore the popular vote in the presidential election and appoint electors after Election Day.
  2. State legislatures, like any other state actor, are bound by the due process and equal protection doctrines that apply in the election context.
  3. Among other things, this means that state legislatures cannot treat votes unequally or arbitrarily. The brief cites Bush v. Gore, as we do, among other cases for this principle. Thus, as the RNC says, legislatures cannot choose “to implement unequal standards for evaluating votes cast; to include only part of the valid votes cast; or to set aside the votes altogether …”.
  4. In addition, the RNC also acknowledges that due process and EP principles deny a state legislature the power to retroactively change the rules — either formally or in practice — under which votes have been cast: “To allow a state legislature to retroactively change the results of a valid federal election implicate similar issues of fundamental fairness that would trigger the protections enshrined in the Fourteenth Amendment.” I’ve explored these prohibitions in my article, Judging New Law in Election Disputes.

There is a lot of misinformation and confusion about these issues in the public commentary about the case. It’s good to see the RNC so strongly endorsing these established legal principles.

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