Moore v. Harper: The Independent State Legislature Theory and the Court at the Brink

Authors

Braden Fain

Document Type

Supreme Court Commentaries

Publication Date

3-7-2023

Keywords

Elections, Independent State Legislature, Gerrymandering, Democracy, Voting

Subject Category

Constitutional Law | Law

Abstract

Moore v. Harper tasks the Supreme Court with considering a fringe legal idea known as the Independent State Legislature Theory (ISLT). Donald Trump gave ISLT new life by invoking the theory during his attempts to overturn the results of the 2020 election. Instead of presidential elections, the litigation in Moore concerns congressional elections and partisan gerrymandering. Were the Court to accept ISLT, the theory would render states effectively impotent to curb gerrymandering and would aggrandize the Court's authority in federal elections. Scholars have recognized the theory's threat to American democracy and have accordingly produced a detailed record debunking the ISLT. Despite its unseriousness as a legal theory, the Court appears poised to sincerely consider the ISLT as sound doctrine.

Although scholars have forcefully refuted ISLT, its logic is enticingly simple, and at first glance the theory might even seem downright plausible. Thus, it is worth taking a deeper dive into the theory and examining the arguments on either side. This Commentary aims to do that. Moore v. Harper and ISLT also present a substantial threat to free and fair elections in the United States. This Commentary will examine the questions the Court is likely to answer and consider the effects its answers will have on American elections and democracy. The Commentary concludes with a simple suggestion the Court is unlikely to adopt.

Recommended Citation

Braden Fain, Moore v. Harper: The Independent State Legislature Theory and the Court at the Brink, 18 Duke Journal of Constitutional Law & Public Policy Sidebar 293–322 (2023)