January 29, 2023

WHAT IS “ISLD”? How this week’s Supreme Court case can bring down American democracy

WHAT IS "ISLD"? How this week's Supreme Court case can bring down American democracy

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On Wednesday the Supreme Court will begin hearing arguments in the case of Moore v. Harper, which will put to test what’s known as the independent state legislature doctrine, or ISLD.

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Critics of the theory — ranging from Federalist Society co-chair Steven Calabresi to former Attorney General Eric Holder — warn that ruling in favor of the ISLD interpretation could seriously jeopardize our elections and democratic institutions.

The case centers around the North Carolina Supreme Court’s striking down of a heavily gerrymandered map for Congressional districts that had been engineered by the state legislature’s Republicans (led by Timothy K. Moore, the speaker).

The voters who filed the case (Rebecca Harper, et al) claimed that the state constitution prohibited such a slanted map since it would obviously lead to unequal voting power.

As noted by the Brennan Center, had that map been left alone, an evenly split electorate would have resulted in ten Republican seats and only four for Democrats.

The court agreed with the voters and struck down the map, replacing it with a fairer one, created by a special master.

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The Republican petitioners then filed with the Supreme Court.

Before now, SCOTUS has followed the policy that matters related to state law should be interpreted by state courts.

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Yet if the court accepts the independent state legislature doctrine, it would leave all interpretations to itself, since it would be accepting the notion that state courts cannot strike down laws by the legislatures in their states when they relate to elections.

The ISLD is not just considered controversial, but truly out on the fringes of legal theory.

As Ian Millhiser has pointed out for Vox, accepting such an interpretation as ISLD implies would upend not just a hundred years of legal precedent, but also the way we conduct elections.

Millhiser noted that much of it comes down to a flawed semantic argument: the US Constitution states that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof,” granting that choosing presidential electors would also be the responsibility of the “legislature.”

But, Millhiser says, back in 1787 the term “legislature” did not simply refer to a congressional body as we think of it today but incorporated all of the people who contributed to lawmaking, including governors and courts – a standard that has been upheld for many, many years.

It should also be noted that the Founders were far from perfect.

And even if you disagree somehow with Millhiser’s widely accepted interpretation, this does not mean that the Founders would have intended state legislatures to act unilaterally without any oversight – something that would completely violate their widely shared belief in checks and balances and a reasonable separation of powers.

There would also be considerable irony in a Supreme Court of unelected judges — three of whom were chosen by a president who did not win the popular vote — ordering that other judges (state judges) cannot strike down a decision by a legislature.

Nonetheless, past opinions offered by Supreme Court Justices Thomas, Alito, Gorsuch, and Kavanaugh make it appear that they are very open to the ISLD interpretation.

Chief Justice John Roberts has been somewhat noncommittal and its unclear what Amy Coney Barrett believes.

If the conservatives on the court do accept the theory, it would have wide-ranging consequences.

Not only could it lead to extreme gerrymandering, but it could also allow state legislatures to enact restrictive voting measures, including banning mail-in ballots, without court oversight.

Legislatures could abolish state laws that protect voters without any countermanding force.

Some scholars, like Matthew A. Seligman of Stanford, have argued that while the case is indeed important, liberals are misinterpreting it.

Despite claims to the contrary, he says, acceptance of the ISLD in Moore would not allow legislatures to simply toss out electors chosen by the popular vote in the state:

“These claims are unequivocally false,” Seligman has written. “Even if the Supreme Court adopts the most extreme version of the independent state legislature theory, it would absolutely and without question violate the Constitution and federal law for a state legislature to toss out the results of the election and appoint its own ‘alternative’ electors after Election Day.”

Yet there is more than one way to skin a cat, as the saying goes.

UCLA Law Professor Rick Hasen has expressed the fear that legislatures intent on overturning elections could use ISLD like an ideological “fig leaf” to do so.

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One could envision, for instance, legislatures rejecting certain ballots that they deem “illegitimate” and accepting others.

This is largely what happened during the Election of 1876 — though, in that case, voter intimidation, fraud, extreme violence, and even murder did provide substantial justification for certain results to be rejected.

Just because reasonable people like Seligman would view such an interpretation as beyond reason and beyond the pale, does not mean Republican legislatures wouldn’t attempt it, potentially causing a crisis that would then fall to the Supreme Court to hash out.

And do you trust the court to do so? Given the current court’s prediliction for ignoring precedent, it seems like a risky bet.

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Ross Rosenfeld

is a news analysis and opinion writer whose work has also appeared in the New York Daily News and Newsweek. He lives in New York.

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