The Supreme Court will decide whether power politics and partisanship will trump history, tradition, logic, and the text of the Constitution.
The Independent State Legislature theory (ISLT) of elections being advanced before the Supreme Court in Moore v. Harper is the William Webb Ellis of election law—an attempt to create new rules about elections in the middle of the game. Unlike Ellis’ actions, which were in the end of only modest historical consequence, accepting modern-day efforts to change election law will have catastrophic effects. Early next month, the Supreme Court will hear oral argument in Moore and decide whether or not we avert that catastrophe.
In its strongest form, ISLT proponents say that this text means that state legislatures have plenary and exclusive power over the conduct of federal redistricting for Congress (the principal question at issue in Moore), the conduct of presidential elections, and the selection of presidential electors. The key to this argument is the alleged “exclusivity” of the legislature’s authority. Under a strong form of the ISLT, neither state election officials (acting pursuant to state law) nor even a state supreme court (interpreting state law and, if applicable, the state constitution) can supplant that legislative authority.
What this means, in practice, is a two-fold threat to democracy. First, it means that state courts cannot “change” what the legislature has enacted, and it is the legislature that can decide whether or not the courts are making a “change.” In Moore the question is whether the North Carolina Supreme Court allegedly improperly supplanted the gerrymandered districts drawn by the state legislature.
No one seems seriously to doubt that, if a state legislature wanted to, it could change the current law and decide before an election to choose its electors without holding a popular vote. But such a decision would require state legislators to explain to their electorates why they were being disenfranchised en masse, making this option politically, but not legally, impossible. The ISLT would allow state legislators to decide after holding a popular vote to choose the electors themselves.
Say what you will about the ISLT as a political device for the accumulation of power, but there is absolutely nothing about the theory that ought to appeal to conservative lawyers. The hallmarks of conservative legal thought are textualism, originalism, historicity, and judicial modesty. The ISLT comports with none of these.