The Independent State Legislature Doctrine, Federal Elections, and State Constitutions

The U.S. Constitution does not confer authority to regulatefederal elections on states as entities. Rather, it grants thatauthority specifically to the “Legislature” of each state. The“independent state legislature doctrine” teaches that a stateconstitution is legally incapable of imposing substantiverestrictions on the authority over federal elections that the U.S.Constitution confers directly upon a state’s legislature. Over thepast 130 years, the U.S. Supreme Court has repeatedly adoptedconflicting positions on this doctrine without recognizing itsdeep historical roots or normative justifications.The independent state legislature doctrine reflects theprevailing understanding of states, Congress, and other actorsin the nineteenth century.

Throughout that period, the doctrinewas consistently applied across a broad range of circumstances.It protects important structural considerations and isconsistent with the political theory underlying the U.S.Constitution’s election-related provisions. The U.S. SupremeCourt could reincorporate the doctrine into modern Americanlaw with minimal disruption to either its precedents or state election systems. Moreover, the doctrine may present apotentially substantial obstacle to the use of state constitutionsto combat partisan gerrymandering in congressional elections.