When Dr. Rosemarie Zagarri of George Mason University's Department of History and Art History was conducting her research on 18th Century electoral politics for her first book, she never imagined that it would become urgently relevant to the preservation of democracy in 21st Century America. “My work on the Independent state legislature grew out of the research for my dissertation and first book, The Politics of Size: Representation in the United States, 1776 - 1850, published in 1987 by Cornell University Press. In my book, I examined political representation during the era of the American Revolution, with a great deal of attention to the federal Constitutional Convention, congressional apportionment, the first federal election laws, and state constitutions. Although this scholarship is now over thirty years old, it has not been superseded by recent work,” says Dr. Zagarri.
The Independent State Legislature Theory, or ISLT, originated in the Supreme Court case Bush v. Gore after the disputed 2000 election. Chief Justice Williams Rehnquist wrote a concurring opinion that formed the seed of what would become the ISLT. The theory, if implemented, would overturn centuries of precedent and would free state legislatures from oversight by state courts, potentially enabling them to pass harsh voter suppression laws and extremely gerrymandered electoral maps. The theory might also provide political cover for state legislatures to overturn the results of presidential elections. In fact, former President Trump and his adherents tried to use the independent state legislature theory to overturn the results of the 2020 election. The Supreme Court declined the arguments of ISLT in 2020. However, in their dissents, Clarence Thomas, Samuel Alito, and Neil Gorsuch all endorsed it.
Dr. Zagarri says “With the efforts to overturn the 2020 election, the Brennan Center for Justice at NYU Law School realized it was just a matter of time before the ISLT would come before the Supreme Court. Early last year, the Center asked me to write a scholarly article tracing the theory of American constitutionalism, the understanding of the role of state legislatures at the Constitutional Convention, and practices in the state governments at the time of the Founding regarding federal election laws. I wrote an article, called “The Historian’s Case Against the Independent State Legislature,” which will be published in March 2023 by the Boston College Law Review. It has already been made available on the SSRN website and has almost 450 downloads, making it the top article downloaded for 2022 in the field of Election Law.” You can find her article here https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4245950
Dr. Zagarri and the Brennan Center were both correct in thinking that ISLT would become a pressing matter again. “I was also a co-author and signatory on an amicus ("friend-of the court") brief, signed by other Historians of the Founding era, in the Supreme Court case of Moore v. Harper. This case involves the role of the state courts in a gerrymandering issue. The plaintiffs (in this case, officials from North Carolina) made the ISLT the center of their case. Using this unfounded theory, North Carolina officials rejected the authority of the NC state supreme court to vacate what it held to be an unconstitutional redistricting scheme created by the NC legislature, in violation of that state's constitution. The US Supreme Court heard oral arguments on the case on Dec. 7, 2022. A decision is expected in June 2023.
The decision in this case will impact the state of American democracy. “Although the issues involved in this case may seem obscure to the general public, they cut to the very heart of what it means to live under a constitutional system of government, guided by the separation of powers and subject to the division of authority between the state and federal governments. The importance of this case is evident from the number of amicus briefs filed before the case was heard: 48 (including the one I signed) opposed the theory; 16 supported it; and 5 took no position. A ruling that supports the ISLT would mark a radical departure in American government, overturning over 250 of precedent in the way Americans have conducted their federal elections,” said Dr. Zagarri.
For more on the independent state legislator theory, see this informative article from the Brennan Center for Justice at NYU: https://www.brennancenter.org/our-work/research-reports/independent-state-legislature-theory-explained
January 11, 2023