Submitted by TheBrennanCenter t3_zasugj in IAmA

That’s a wrap! Thanks so much for joining us today. Follow us on social media or join our email list to get the latest on Moore v. Harper and the independent state legislature theory.

Background reading:

A short explainer of the independent state legislature theory:

An animated video explaining the ISLT:

The Brennan Center's amicus brief in Moore v. Harper:

A guide to the many amicus briefs in the case:

Our project page, which contains all of the above and more analysis from our team of election and constitutional lawyers:

On December 7, the Supreme Court will hear oral arguments in Moore v. Harper. At the center of this case is the “independent state legislature" theory — a claim that state legislators have nearly unchecked power over federal elections. If SCOTUS adopts this baseless theory, state legislators could upend federal elections. More than 170 state constitutional provisions, 650 state laws, thousands of rules and regulations, and hundreds of state court decisions would be thrown into question. Ask us anything about Moore v. Harper and the independent state legislature theory.

The independent state legislature theory, explained:

Proof: Here's proof!



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Portarossa t1_iynhdcj wrote

If you could pinpoint a moment in political history that led to this being treated as a serious threat to democracy rather than a fringe theory that no one really ever thought would come to pass, what would it be?

Where's the branch in the timeline that got us here?


TheBrennanCenter OP t1_iynogad wrote

The ISLT emerged as a serious threat to democracy once a few Justices of the Supreme Court began issuing writings suggesting their openness to, at the very least, considering it.

During the 2020 elections, litigants seeking to keep then-President Trump in office deployed the ISLT in cases designed to change which votes counted (for example, trying to invalidate certain mailed ballots). The Court rejected all those challenges. That could have been the end of the road for the ISLT. But a few Justices in concurrences, dissents, etc. suggested there might be something there.

Other litigants around the country picked up the signal. For example, in this case, the gerrymanderers have been trying to use the ISLT to defend their gerrymanders.

Because of this dynamic, it’s very important that a majority of the Court send a strong message in this case that the ISLT isn’t valid.

– Tom


Portarossa t1_iynquj5 wrote

Respectfully, that really just sort of kicks the can down the road. (That's probably on me; I could have worded it better.) What is it that made these Justices suddenly so open to promoting this idea in their opinions? Have the Justices changed their views on it (or at least found it suddenly more 'acceptable' to start discussing it openly), or was it baked into the nomination of people like Alito, Thomas and Scalia (and now the new batch of Trump's nominated Justices)?

I guess what I'm really asking is how far back this goes. It's easy to view the modern GOP as just throwing any old shit at the wall to see what sticks, as long as it keeps them in power -- and I definitely think there's a strong case to be made for that -- but it also kind of feels like it's been seeded for a long time, and we're now seeing the direct result of that because the Trump administration fluked/scammed their way into three SCOTUS seats in four years. (I guess the parallel would be with the overturning of of Roe v. Wade, where it seemed to fall apart very quickly but there's also evidence that the GOP have been setting up their little chess pieces for a long time through things like the Federalist Society.)

When we're looking for a cause for this -- and with the understanding that situations are nuanced and events are very rarely caused by only one thing -- is it a 'modern' (post-2016) issue, or do we need to be looking a lot further back into history to get the context for this?


Patrickk_Batmann t1_iyr3ue2 wrote

I suggest doing some research on “The Federalist Society”. That’s where the theory originated and that’s where all the conservative judges originate. There’s has been a concerted effort for 40+ years by the republicans and the federalist society to stack the courts with their judges. Remember, every single conservative judge said that Roe was “settled law” before they were appointed. They have no problems lying about their views as long as it gets them to power.


bobans30 t1_iyqvj3t wrote

Why would Trump try to win another election, he's worse than Hitler right? The mail in ballots are a sure way to fraud the election. Every voter should be supposed to vote in person, excluding the ones that are disabled and cannot move. Are the democrats really that desperate to keep power?


TheGazelle t1_iysfaqr wrote

What about people who aren't going to be in their electoral district when voting is done?

They just don't get a vote because they were on a business trip or visiting family?


Daripuff t1_iynm2hi wrote

Mitch McConnell cementing obstructionism of Democratic leadership (and then blaming the Dems for failing to get anything done) as the GOP core strategy.


[deleted] t1_iynnouo wrote



Portarossa t1_iynote2 wrote

Are there legitimate criticisms to be made of the Democrats? Yes, absolutely. Is 'they do the same thing lol' in any way a meaningful comment that's built on anything except edgy grumbling, contrarianism, ignorance or some magical cocktail of the three? Not even close.

At least start paying attention if you want to be taken seriously.


UltraVires33 t1_iynog7r wrote

This is absolutely not true. Both parties have their problems but at least the Democrats are trying to legislate and get things done, while the GOP is just interested in breaking everything and blaming the Democrats for it. Disagree with the policy goals or substance of the bills all you like, but it's pretty clear at this point that only one of the major parties is actually interested in governing.


SuperSocrates t1_iyoylov wrote

Getting things done like forcing rail workers to cancel their strike right


Aneuren t1_iype8rr wrote

Biden and the Democrats completely fucked this up - but what of the Republicans that would have essentially given them nothing at all? I can't pretend to understand the Democrat strategy here - I don't understand why they didn't force more favorable conditions on the railways if they have the power to do so in this limited situation.

But if they did nothing - then they really got nothing done right? And even if they did nothing (thus paving the way for the strike), can you imagine the attacks by Republicans when the country started losing billions of dollars caused by lost transportation?

I won't say they did right, but they got something done, and more than what the opposition was going to do. Which makes zero sense when you think of how much of their rich backers would lose of the strike did happen.


Zalachenko t1_iyqoev5 wrote

The counter to any right-wing attack on worker solidarity is "why would railroad bosses grind transportation to a halt rather than give their workers sick leave?", not "Biden moves in mysterious ways."


Aneuren t1_iyrmt2k wrote

You aren't wrong, it just hasn't worked super well in the past. Tell me if I am wrong - they would need a full majority in the Senate. If everything was included in one bill, it would have met the same fate as the second bill with sick days. This isn't one of the kinds that can be passed with a simple majority?

So then the bill fails to pass and everyone piles it on the Democrats. Whenever that's happened in the past, like Obama era debt ceiling bullshit, it didn't really turn out how logical people would have expected it should have. Republicans then won't budge because they'd rather destroy America then give hard-working people their due, then don't have any actual platform so they're immune to criticism anyway, and Democrats are accused of failing to govern. Meanwhile the economic fallout is supposedly catastrophic.

In a functioning democracy, Democrats should be able to full court press this and grind the fucking rich overlords into the ground. But they can barely get a little aggressive before popular opinion shifts against them, because for some reason a huge percent of our population expects them to be honorable and act like adults, the Republicans are absolutely never held to task for their bullshit stunts, and then the Democrats get slammed (while also doing their own damn best go crush the progressive wing, thanks JJ). And the dumbass outrage voters sit out the election cycle and then we have an overwhelmingly illegitimate supreme court that fucks us even harder for an entire generation.

I personally would love nothing more than to see the Democrats rake the railway over the fucking coals and give the workers everything they asked for and then 100% more that they didn't even have the hope to imagine much less request.

Edit: the same fate, not the same "'date."


Zalachenko t1_iyrpyr6 wrote

I mean, any bill could be one of the ones that passes with a simple majority if Democrats would bother to get rid of the filibuster with the majority they do have, which they could if they wanted to enforce any kind of party discipline in favor of the average American - who supports progressive things like single payer healthcare, marijuana legalization, and abortion rights regardless of party affiliation. There's no excuse for a party to run on flipping both houses, do it, and then spend two years conceding on every issue that was portrayed as contingent on such a victory.

It's true - we don't live in a functioning democracy - but it's not because one or another ruling-class party is prevented from carrying out their stated agenda. It's because they're both complicit in acting against popular will.


Aneuren t1_iyrw3rt wrote

Still no disagreement. My only response to this point is that people use this particular observation mainly against Democrats as well. "Both parties suck so why should I bother." True enough except one of those parties will do the bare minimum to keep things roughly how they are while the other one will literally turn back all progress made in the last 200+ years. I'll still stick up for the Democrats then, while urging people for more, because we have a better chance to actually progress one day from where we are now rather than from a degrading society caused by Republican control.

Voting is for sure important but it's the bare minimum to get the bare minimum results. Without massive change in driving progressive policies at a very wide grass-roots level we will eventually be lost. Bernie was one person who pushed the Democrats wildly left compared to where they were, but he isn't enough and we won't just stumble into two or three more of him by luck alone.


Zalachenko t1_iys1f7u wrote

Certainly - not that the right to vote shouldn't be vigorously defended, it should, but like any other right it was won in the streets first. I don't fault anyone for choosing to disengage, but we're only powerful organized and fighting. Half the work of getting that done is restoring hope in the doing of it.


Trinition t1_iytqk7x wrote

What was the GOP for the railroad labor disagreement?


thergoat t1_iynihb3 wrote

Say this does pass the Supreme Court - what recourse would we have from a legislative perspective? Would it require a constitutional amendment? Federal laws being passed?

How could we hypothetically come back from this?


TheBrennanCenter OP t1_iynod5a wrote

Eliza: The very provision of the U.S. Constitution that North Carolina legislators are trying to weaponize in this case–the Elections Clause–also gives Congress the power to act to ensure free, fair, and representative elections. Namely, the Elections Clause gives Congress the power to “make or alter” rules for federal elections. The Framers gave Congress that overriding power precisely because they were worried that state lawmakers would abuse their authority over federal elections and do things like draw unfair maps and make voting more difficult (sound familiar?).

Congress should–regardless of the outcome in Moore v. Harper–pass democracy reform legislation to protect the right to vote, fight back against racist voter suppression tactics, eliminate partisan gerrymandering, and protect against election sabotage and interference efforts. The Freedom to Vote: John R. Lewis Act would have put these policies in place, and Congress should reintroduce and pass this bill, which would mitigate some of the worst harms of the independent state legislature theory (if the Court does adopt it).


Artisanal_Shitposter t1_iyoek38 wrote

But what would stop a partisan SCOTUS from simply quashing those laws? This court doesn't seem to respect precident. So what's to stop them from reaching the conclusion that this is illegal or unconstitutional, then working backwards to find support for that conclusion?

Typically I wouldn't be concerned about the court behaving in such a fashion. But this court has already shown they're capable of behaving that way.


shalafi71 t1_iyorxhe wrote

Precedent is, "how a law has been interpreted in the past".

Making a new law shoots down that ambiguity. Best the court can do is say, "This law violates the Constitution." They cannot just make up new laws.

It's a fine line that I'm failing to impart...


macrofinite t1_iyr4e7p wrote

I mean, did you read any of the Roe opinion?

They super obviously don’t give a shit about precedent anymore and have no compunctions about making shit up out of whole cloth.


ilikedota5 t1_iys52fy wrote

I mean, Roe was pretty detached from the constitution. The penumbra and emanation logic was never been used again.

At least this case is directly about elections, something that is addressed by the text.


macrofinite t1_iyspxno wrote

That’s not relevant to what I said man.

In the opinion in which they overturned Roe, they blatantly disregarded precedent, fabricated a history that doesn’t exist, and just plain made things up.

We’ve got 5 judges that are ok with doing these things. And you think it makes a single bit of difference how much a topic is covered by the text of a law?


ilikedota5 t1_iysqzts wrote

Dobbs wasn't just made up from nothing. It legally made sense. The historical part is a bit wanting. But there were problems with it. But Roe was even more made up. Its legally suspect from day 1. The legal roots are nonexistant. Disregarding precedent made sense since what was an undue burden was never really established. It was constantly going back to the court on the same question presented.

I think Alito played a bit fast and loose with the history part particularly around his analysis on the quickening part. And yes I think it makes a difference how much is covered by the text of the law because that's kind of their job. Roe existed because there was nothing addressing abortions, thus they literally made up the law, not interpreting the law.


macrofinite t1_iyszsya wrote

Well, there you go.

Roe wasn’t made up, it just offends the reactionary way of thinking. Clearly, making up a bit of history is a smidge distasteful to you, but whatever it takes for the cause, right?

But here in the real world, it’s impossible to create a set of laws that covers every facet of human need an behavior. There is no choice but to infer judgement in cases where the law is not explicit. And I really doubt you want to start arguing that a right to privacy is a terrible thing that is unconstitutional and needs to be overturned across the board. But maybe you do, who knows. The fascists are everywhere these days.

Alito, Thomas, Gorsuch, Kavanaugh, and Barrett are hacks, and Roberts is a pussy. They will enforce their personal preferences upon the law with the flimsiest justification, regardless of what the law says or means, and often in direct opposition to what is right. The deepest of irony is looking back at those decades of reactionaries whining about activist judges, and then coming to a full realization of how deeply they have fucked the country by installing these hacks for life.

Their whining was always projection. Because these people don’t give a shit about law, they just want the legitimacy that the “law” provides. Their way of thinking would be laughably childish if it weren’t hurting so many people.


ilikedota5 t1_iyszzsh wrote

The court is not where this stuff should be fought out. Its the province of the legislature. That's precisely why Dobbs threw it back to the States.

The court is supposed to be brakes on the system, to stop the other branches from infringing on existing rights, not inventing new ones out of whole cloth, because they aren't the legislature.

The issue with arguing that the right to privacy extends to abortions is that where does it stop? What is the limit to the right to privacy. All rights have their limits somewhere, because the right to something means defining what encompasses that right. I could strawman it to death, and my point is, without a limit it would swallow up everything else. And should SCOTUS be the one creating and defining those limits? From what basis of constitutional text should they have that power?


BaronVonBaron t1_iyqlp4m wrote

The line isnt there anymore. SCOTUS is now a captured regulatory agency.


BlatantFalsehood t1_iyrclgb wrote

This. If democracy survives, the Roberts Court will go down in history as the most illegimate, corrupt court ever.

And I HATE that Roberts thinks the issue is the Roe decision and that we just don't like it. BULL. I have been a SCOTUS fan for years, despite numerous rulings I didn't like. Bush v. Gore, anyone?

This court is illegimate because:

  • Roberts shows no leadership. Leaks anyone?
  • Three justices were appointed by someone who was installed by a foreign government and did not win the majority of the popular vote
  • Justices leak regularly and give politicwl speeches
  • One justice's wife was part of a plan to overturn a free and fair election, and he didn't bother to recuse himself from related cases.
  • Even after all of this, Roberts doesn't see a need for a SCOTUS code of ethics.

Roberts, if you don't see the corruption in this, you are blind.


Synkope1 t1_iypufy9 wrote

It's not just recently that the Supreme Court has been that way. They often have worked backward from the outcome they desired, it's how you get originalism and textualism as legal theories. The only thing that stops them from doing something as egregious as what you are saying is them trying to maintain the legitimacy of the Supreme Court. There is theoretically a line that the Supreme Court could cross in which state and federal governments would just say, "No, you've overstepped too far and we're not going to listen to that decision." The Supreme Court has no way to enforce its own decisions, it has to rely on other branches agreeing that its decisions are legitimate to enforce their decisions.


AxelShoes t1_iyrbsx6 wrote

Probably the most famous example was President Andrew Jackson just completely ignoring a Supreme Court decision in the 1830s regarding Cherokee sovereignty against the state of Georgia. He's alleged to have responded to the ruling by saying, "[Chief Justice] John Marshall has made his decision. Now let him enforce it." Whether he said those words or not, that was definitely his sentiment, and he simply refused to enforce the Court's decision.


Synkope1 t1_iyrk13j wrote

Oh yea, an example I heard recently was regarding a Oklahoma state supreme court case of the execution of Clayton Lockett. The Supreme Court of Oklahoma had issued a stay of execution (since the state has been unable to obtain the necessary drugs for a lethal injection and was planning to use an untested cocktail that would ultimately end up torturing him for 40 something minutes until he died) and the Governor issued and executive order that the execution would continue and the legislature began impeachment proceedings on the justices until they reversed the stay.

Just something to consider when the republicans eventually say "You can't just not listen to what the Supreme Court says!!"


Ven18 t1_iyngw6c wrote

Who exactly are Moore and Harper and how exactly did this case become one that could upend all elections. What is the issue at hand here?


TheBrennanCenter OP t1_iynnvo0 wrote

Tim Moore is the Speaker of the North Carolina House of Representatives. Rebecca Harper is a voter in North Carolina. Last year, North Carolina’s Republican-dominated state legislature—led by Moore—passed, on a party-line vote, an extreme partisan gerrymander to lock in a supermajority of the state’s 14 congressional seats. Harper, along with other voters and non-profit groups, successfully contested the map in state court, contending that the map violated the state constitution’s “free elections clause,” among other provisions. But Moore wasn’t willing to accept the state court’s ruling, so he asked the U.S. Supreme Court to get involved. Before the U.S. Supreme Court, Moore has invoked the so-called “independent state legislature theory,” the dangerous theory that state legislatures have near exclusive power to set the rules for federal elections.

The ISLT would have catastrophic effects for our elections if it became the law of the land. It would kneecap the state-level movement to end partisan gerrymandering. But it could also endanger the right to a secret ballot in many state constitutions, the right to cast an absentee ballot in at least sixteen states, ranked-choice voting regimes in Alaska and Maine, automatic voter registration in Michigan and Nevada, and on and on. In all, the theory could upend more than 170 constitutional provisions and more than 650 state statutes that protect your right to vote and make sure that elections are free and fair. That’s a recipe to upend elections if there ever were one. -- Ethan


Mysterious_Lesions t1_iynonlc wrote

The now quaint seeming Voting Rights Act would have been ineffective if this concept was in play.

We have a similar thing going on in Canada as well. A province here wants the ability to opt out of federal legislation that they don't agree with - including the federal criminal code. This one will definitely be a rougher path to realization.


spinbutton t1_iyo2qlt wrote

By the way NC just put two more Republicans on our state supreme court so we'll never have fair elections again in my lifetime.


Lysandren t1_iyp3sua wrote

Our Supreme Court judges aren't lifetime appointments in NC. Unless you plan on dying soon you could easily see the court turn blue again.


spinbutton t1_iyvdmoh wrote

I'm pretty old...but I'd like to see it switch back in the next time there are seats up for grabs


rckhppr t1_iypihi7 wrote

It sounds counter intuitive that federal elections need hundreds of state laws to ensure a fair execution. Will the US voting laws need to be simplified or made more concise?


UltraVires33 t1_iyndvsg wrote

Thanks for doing this AMA about such an important case that the media just isn't covering enough! What, in your view, are the number-one strongest arguments for each side of this case?


TheBrennanCenter OP t1_iynpdeb wrote

The gerrymanderers who are asking SCOTUS to embrace the ISLT rely mainly on the fact that when the Constitution assigns the power to regulate federal elections, it gives that power to the “legislatures” of each state (subject to the power of Congress to override these rules). Seizing on the word “legislature,” proponents of the theory insist that state legislatures don’t just get to make the rules, but that they can ignore their state constitutions when doing so!

The problems with the ISLT are endless. For one thing, American elections have never been run this way. It’s a totally made-up theory. Since the founding era, state legislatures have regulated federal elections, subject to all the normal checks and balances that are the hallmark of our democracy–with governors having the chance to veto bad laws, with state courts having the chance to strike down unconstitutional laws, and with election officials being tasked with administering them. The ISLT totally ignores that history.

Other problems with the ISLT: It violates the basic norms and assumptions about how government should work at the time the Constitution was written. It conflicts with hundreds of years of Supreme Court precedent. It defies common sense (how could a state legislature make laws that violate the very state constitution that created it?) It disregards the text of the Constitution (the Constitution gives lots of power to Congress, for example, but no one would ever argue that Congress is free to make unconstitutional laws!) And it’s a recipe for election chaos.

It’s not really a close call, which is why constitutional experts–on both sides of the aisle–have called on the Supreme Court to reject this dangerous theory.



Throwaway_7451 t1_iynqky0 wrote

Then going by their actions so far, this supreme court is almost guaranteed to rule in favor of ISLT. What recourse do we have at that point?


TheBrennanCenter OP t1_iynt4hw wrote

This is far from a done-deal for the ISLT. As Eliza and Tom mentioned in other replies, all of the stuff that this Supreme Court purports to care about–history, originalism, text–all cut sharply against the ISLT. Here’s one data point: Tons of leading academic historians have come out against the ISLT; not a single historian has tried to defend the theory. Combine that with all of the other reasons to reject the theory–e.g., it’s undemocratic and dangerous–and the anti-ISLT side has a very strong hand.




Artisanal_Shitposter t1_iyog0qm wrote

Yeah, okay. But what do we do when this group just says 'lol we don't care' and rules in favor?

Just because they're expected to present an opinion doesn't mean it actually needs to be logical or reasonable. They're ultimately able to rule however they want. Yeah?

For those of us with no faith in these schmuks, what's the next step when they ruin democracy? Can their ruling be challenged at all, is there any check against it?


SaltineFiend t1_iyr63sj wrote

Joe Biden can tell them to go fuck themselves.


UltraVires33 t1_iz0w1hb wrote

I mean, not really. The only real way the POTUS could tell the Court that would be to expand the number of Justices on the Court and install his own nominees to outweigh those already there, but the president can't do this on his own; he'd need Congress to help out too. It would be a big step that seems unlikely to get done.


SaltineFiend t1_iz0wa38 wrote

You're quite wrong. The executive branch upholds the rulings of the judiciary out of convention alone, there is no binding enforcement for anything the court says ever.


UltraVires33 t1_iz13q69 wrote

Sure, that's true to a point; the Constitution doesn't explicitly say that the SCOTUS has power to invalidate laws or enjoin the actions of Congress or the Executive. BUT from very early on the Court has held this power of judicial review and it's been pretty much consented to and not really challenged by the other branches for more than 200 years, to the point that it really has been baked in to the fabric of our government. The executive could openly flout a SCOTUS decision pretty easily on something like federal gun laws or IRS tax enforcement or something, but it's definitely going to create a Constitutional crisis in doing so. Here, it gets even trickier because the question is whether state governments or the federal government have ultimate final control over voting and elections, and if the federal government tries to ignore a SCOTUS ruling saying states get to decide then the states trying to exercise that control are going to fight back. So you're technically correct that there is no concrete legal requirement to follow SCOTUS decisions, but the traditional peaceful operation of our government has come to sort of expect it and the Executive trying to negate a SCOTUS decision would be messy at best, particularly in a situation like this that would pit the states against the federal government.


SaltineFiend t1_iz1iqvd wrote

Everything you said equally applies to the SC if they decide ISL has validity after 200+ years of federal law, case law, and the constitution stipulating otherwise.

Fact is, in Dobbs this SC said precedent doesn't matter, the ends of Christian fascism justify whatever means. Biden is well within his right to tell them to fuck off and in my opinion our military should drag them into the street and do what needs to be done to Nazis.


TeenieBopper t1_iynw5os wrote

You've mentioned in a lot of responses how things justices care about- history, text, originalism, etc-means there's a mountain of evidence that ISLT is wrong. But do you have any evidence that the Supreme Court actually cares about any of those things and instead uses those as a cover to be partisan hacks? And that they wouldn't hesitate to throw those things out the window to continue to be partisan hacks?


TheBrennanCenter OP t1_iyo4jtx wrote

At the end of the day, even if the justices want to embrace the ISLT, they’re going to have to write an opinion explaining why. Considering that the kind of reasoning they’d use--text, history, tradition, precedent--cuts against the theory, they would have an awfully tough time writing that opinion. (In fact, one of the major pieces of history that the supporters of the ISLT try to invoke–the so-called Pinckney Plan–is fraudulent!) That puts any of the justices interested in the ISLT in a tough spot–-and it makes it more likely that a majority will form to reject the theory. -- Ethan


TeenieBopper t1_iyo9gyv wrote

> That puts any of the justices interested in the ISLT in a tough spot

Does it though? They have lifetime appointments and impeachment is a political tool, not a legal/ethical one. What's stopping five of the six conservative justices from embracing ISLT and saying "lol, because we feel like it?"


UltraVires33 t1_iyo3kn0 wrote

>But do you have any evidence that the Supreme Court actually cares about any of those things and instead uses those as a cover to be partisan hacks? And that they wouldn't hesitate to throw those things out the window to continue to be partisan hacks?

Scalia was actually a master at doing exactly that.


niloroth t1_iynhd39 wrote

What is the actual worst case scenario in your opinion. It seems like some people think This will only effect state elections, while others are claiming this will end democracy. Where is the truth?


TheBrennanCenter OP t1_iynrss5 wrote

To start, it’s important to remember that the independent state legislature theory relates to federal elections–i.e., elections for congress, senate, and the presidency.

If the Supreme Court rules for the gerrymanderers in Moore v. Harper, it would be a huge blow to efforts to stop partisan gerrymandering in congressional elections. A few years back, the Supreme Court (in a terrible decision) ruled that federal courts aren’t allowed to stop partisan gerrymandering, but the Court–unanimously!--promised that state courts could step in to fill the void. If the Supreme Court were to turn around and announce that, actually, state courts can’t get involved either, that would mean that state legislatures can gerrymander congressional maps to benefit their party–and no court would be able to stop them. That’s a disaster for fair elections.

Other potential consequences of the independent state legislature theory: state constitutional provisions that protect your right to vote–like those that guarantee your right to cast an absentee ballot, those that establish automatic voter registration, and even long-standing provisions that guarantee fair elections or equal protection of the law–could all become inapplicable to federal elections.

At the same time, because the theory only applies to federal elections, that could mean that these provisions would still apply to state elections, creating a “two-track” election system, where different rules apply to state and federal elections, that would be confusing for voters and election administrators alike.

This is just some of the chaos that the ISLT will introduce into our elections system, and it’s pretty frightening.




niloroth t1_iynt74n wrote

Thank you for the excellent response.


[deleted] t1_iynph9p wrote



niloroth t1_iynstk2 wrote

And yet I got a detailed and topical response because people can read and Interpret common usage of the language we have around our political system.

Go touch some grass dude.


nemoid t1_iynos66 wrote

What are your predictions for the final ruling (e.g. 5v4 for, 7-2 against, etc)? How confident are you?


TheBrennanCenter OP t1_iynqsx6 wrote

Until I gain the power to read minds, I won’t make predictions!

That said, any Supreme Court Justice who tries to write a credible opinion supporting the ISLT is going to struggle mightily to deliver. Under any metric a Justice would use to figure out the right answer in this case–original public meaning, constitutional text, structure, historical practice, precedent, policy, etc.--the answer is: “The ISLT is wrong.”

The ISLT has been able to motor along up to this point because the Court’s been fielding it on its emergency appeals docket (the shadow docket), where there’s basically no context for its decision-making (few briefs, no argument, etc.) and there’s little to no public scrutiny of what they’re up to.

The game’s different now: The Court’s gotten thousands of pages of briefs dropped on it, covering every conceivable angle of the issue. (We summarized them all here: Folks are paying attention to it now. And the Court has experienced significant blowback for its recent opinions on abortion rights and gun control. All these things will put real limits on the Court's room to go the wrong way here.

In short, this case is a winnable one for the anti-ISLT side. - Tom


UltraVires33 t1_iyo3975 wrote

>That said, any Supreme Court Justice who tries to write a credible opinion supporting the ISLT is going to struggle mightily to deliver.

This question is more honest and genuine than it's going to sound: Do you think any justice on the right wing of the Court other than Roberts actually cares much about credibility? Between Thomas, Alito, Kavanaugh, Barrett, and Gorsuch, is there worry that they'll just band together and craft some B.S. to further their policy goals and not really care much about the actual legal merits?


Artisanal_Shitposter t1_iyofdab wrote

In other words, will they do the job they swore an oath to do, or the job they were installed for?


right_there t1_iyqhbb8 wrote

You have to have integrity and honor to keep an oath, so what do you think?


EqualityForAllll t1_iynovec wrote

In your opinion, how fucked is the Supreme Court?


BEWARB t1_iynxf56 wrote

What is the most important point to take away from Moore v Harper?
What is the likelihood of additional attempts to use ISLT if it is struck down by the Supreme Court in a similar manner to the cases that led to Roe v Wade being overturned?
Additionally, what has been your favorite case you’ve worked on and or the most significant case?


TheBrennanCenter OP t1_iyo2a83 wrote

The most important point to take away from Moore is that the independent state legislature theory is wrong as a matter of text, history, practice, and precedent; the theory, if adopted, would remove critical checks and balances on state legislatures in a way that will create chaos in our elections and could thwart your vote.

A rejection of the ISLT by the Supreme Court should largely stem the tide of litigants seeking to push the issue. The clearer and more unequivocal the Court’s repudiation of the theory, the less likely we are to see actors trying to advance the theory in other contexts in lower courts.

Speaking only for myself, my favorite case to have worked on was a challenge to Florida’s pay-to-vote system for people with felony convictions. We won after an 8-day trial in federal district court, but unfortunately the Eleventh Circuit Court of Appeals reversed. That hasn’t stopped me or the Brennan Center from continuing to fight for returning citizens in Florida!

- Eliza


TheBrennanCenter OP t1_iyo401f wrote

Co-sign Eliza on the importance of checks and balances. I'd rather have that than the ISLT's completely awful proposed system where state legislators alone decide what the rules for federal elections look like, so I'm against the ISLT.

My favorite case was a lawsuit we launched in 2020 to stop the Trump administration from shutting the census down early. Made me proud to be able to be a public interest attorney. -- Tom


sandleaz t1_iynq31o wrote

Hello. Do you think that with some election results coming many days after the election is over will give voters less confidence about the elections?


TheBrennanCenter OP t1_iyns6y2 wrote

Election officials should count every vote, even if that means we may not know the results until a few days after Election Day. Voters knowing that they will cast ballots that count should give them confidence in the results. - Eliza


battraman t1_iyoy66l wrote

In all my life, elections were counted that night. Florida in 2000 was an outlier. Now it's the norm. I think it's inevitable to think there is fraud in elections.


conduitfour t1_iyuckhu wrote

Elections were called based off of current data. They were not 100% counted.

You're just telling a blatant lie.


battraman t1_iyvuui3 wrote

You really think no one cheats in elections?


jeffwinger_esq t1_iynh7gr wrote

Do you believe that Roberts can convince one of the (more) crazies to flip to the side of democracy?


TheBrennanCenter OP t1_iynnbf8 wrote

ESB: The remarkable thing about the independent state legislature theory is how crystal clear history and tradition cut against the theory. Mountains of historical evidence—from the Framers’ intent to limit the power of state legislatures when they drafted the Elections Clause, to the state constitutional constraints that existed at the time of founding as checks and balances on state legislatures, to the existence of state court judicial review at that time—all of it should lead to the rejection of the ISLT. The originalist case against the ISLT is a slam dunk. And with so many justices purporting to use originalism to interpret the Constitution, the short answer is yes, I believe there is a majority of the court that could and should reject petitioners’ arguments.

And that’s before we get into any of the many other strong arguments against the ISLT.


jeffwinger_esq t1_iyny42m wrote

OK, thanks. Follow-up, though: What actually gives any of us the confidence that SCOTUS has any sort of internal integrity as an institution? We've watched the current court tie itself into knots to reach the conclusions that it wants -- why will this be different?


Sunburnt-Vampire t1_iyqd4wo wrote

Not the experts but since it seems AMA is over I'll give the impression I get:

Repealing Roe vs Wade and similar "extreme" decisions are simply a reversion to colonial era America. This is this thus easier to justify than ISLT which has never once been a thing in the history of America.

While we might get the impression the stacked SC is free to do whatever it wants, they do need to at least have a "reason" for their actions. And "it's a reversion to how things were when the constitution was written" won't be a valid one this time.


IAmAModBot t1_iyno2nl wrote

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AgentParkman t1_iyo86um wrote

Should people in these positions have to prove their intent and resolve?


TheGreyOne889 t1_iyqvy6y wrote

Does the Electoral Count Reform bill that's likely to pass during the lame duck address and fix any of this?


kormer t1_iyqyd3k wrote

Suppose a large natural disaster hit a state on election day and caused a large number of people to not be able to vote. Is there a constitutional method to right that wrong and how does this "independent legislature theory" play into that?


ilikedota5 t1_iys7fmv wrote

As a potential future lawyer who has been paying attention to the law, what are the primary objections to ISLT? Personally, I think the strong variant is batshit crazy, but the weak variant is more logically sound to me. I think the textual support is quite strong. I've heard that the counterargument would be based on historical precedent, saying that goes against how things were done in the past, and I think you allude to it here, "More than 170 state constitutional provisions, 650 state laws, thousands of rules and regulations, and hundreds of state court decisions would be thrown into question."

Since the States and the federal government are both sovereign, that means both are operative. And the federal government gives the power to the State legislatures. But the State legislatures are still bound by their own constitutions. Therefore it seems to me, that regardless of what the ISLT says, the States are still bound by whatever restrictions are in their own constitution, as well as State court precedent interpreting said constitution. So there might be a conflict of law issue, in which case, judges attempt to reconcile both, which might be difficult. But I don't think the Supremacy Clause can be interpreted to override the State constitutional provisions at issue, since the whole point of the system is that the people from each State send representatives from their States and the States themselves send representatives to Congress.


SeniorSueno t1_iz1qk2y wrote

So... are we losing our democracy in terms of our federal government having no oversight at state-wide elections? If this is a yes, so (in theory), they can bring Jim Crow back on the ballot and pass it right?


Weary_Ad7119 t1_iyoz8vl wrote

Can we just let one of them leave the union and observe what happens?