The Historian’s Case Against the Independent State Legislature Theory

The Independent State Legislature Theory (ISLT) claims that the U.S. Constitution grants to state legislatures near-plenary authority to regulate federal elections, independent of other state actors, state courts, and state constitutions. The theory purports to find support in the text of the Elections Clause (Art. I, Sec. 4) and the Presidential Electors Clause (Art. II, Sec. 1) (together, the “Federal Election Clauses”), which assign the power to regulate federal elections to the “legislature” of each state. At least four sitting Justices on the U.S. Supreme Court have indicated support for the theory. The Court heard a case, Moore v. Harper, in December 2022 premised on this theory. This Essay—the first on the ISLT by an academic historian with an expertise in the founding period—demonstrates that the ISLT has no basis in historical fact. The Essay shows that the ISLT is inconsistent with: (1) the founding era’s rejection of legislative supremacy; (2) the framing of the Constitution; and (3) the conduct of legislatures during the first federal elections.