The Court’s Mixed Message on the Independent State Legislature Theory

As anticipated after oral argument, the Court rejected the most extreme version of the ISLT. It held that state constitutions continue to bind state legislatures when they regulate national elections. The Court generated a majority decision, though, by deciding the case in the most minimalist terms, which means this issue is going to continue to hang over the 2024 elections.

The Court endorsed the view — in exceptionally vague terms — that the Constitution prohibits state courts from “transgress[ing” the ordinary bounds of judicial review when they interpret state constitutions, or it seems, state statutes. The Court makes clear that it is not providing any standard at all — even an attempt at a standard — as to what this means concretely.

On top of that, the Court does not even decide whether the NC decision violates this standard. That means we have zero concrete guidance on where the boundaries are on state court decision-making.

It’s critical that the rules for elections are clear and specified in advance, including the rules that follow from judicial doctrine. The Court’s decision eliminates the most extreme versions of the ISLT, but we are going to see constant litigation around this issue in the 2024 elections until courts provide a more clear sense of the boundaries on state court decision-making.

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