Political Evolution of the Independent State Legislature Theory in American Electoral Process

The Independent State Legislature Theory (ISLT) is a textual interpretation of the Election Clause (Article I, Section 4) and the Electors Clause (Article II, Section 1) of the U.S. Constitution. According to this theory, state legislatures should hold exclusive and undivided power over the administration of federal elections. Although this theory has never gained precedential force - having been rejected twice by the U.S. Supreme Court (SCOTUS), first in the 2015 decision Arizona State Legislature v. Arizona Independent Redistricting Commission (576 U.S. 787) with 5-4 vote, and again in the 2023 decision Moore v. Harper (600 U.S. 1) with 6-3 vote - its influence over the political landscape remains significant. Since 2000 and the landmark case of Bush v. Gore (531 U.S. 98), some of the conservative-leaning justices of the Court appear to continuously embrace, to a greater or lesser extent, the premises of the ISLT. The creation of such a constitutional narrative, which presents the ISLT as a possibly legitimate way of interpreting the Election and Electors Clauses, is permissive toward the implementation of suppressionist election laws. The paper aims to examine the evolution of the Theory and its influence on the conservative political landscape in the United States. It will explore how, since Bush v. Gore, the principles of ISLT have been politicized and used in hopes of advancing electoral gains. Given the increasing polarization between the Democratic and Republican parties, which appears linked to growing differences in electoral laws (Grumbach, 2022), it will analyze how the legal sphere - specifically the US Constitution and its interpretation by SCOTUS - can be utilized to advance partisan agendas and consolidate political power at both the state and federal levels. Additionally, it will examine how, and if, these dynamics align with the gradual weakening of federally established voting rights protections under the Voting Rights Act (VRA) of 1965, leading to determination of the possible implications of fostering such politicized constitutional narratives for the integrity of democratic processes in the U.S. It seems important to analyze the dependencies between the Court’s shift toward a conservative supermajority - potentially bolstered by a fourth Trump’s SCOTUS nomination as he is expected to enter his second term in office - and the likelihood of strengthening the interpretative framework for the ISLT through either binding or non-binding opinions, which could contribute to voter suppression and further disruption of the integrity of democratic processes (Laidler, 2020; Brown, Epstein, & Nelson, 2024; Shapiro, 2023; Amar & Amar, 2022). This evolving interpretative approach has empowered state legislatures, which control the legal framework for both state and federal elections, to enact and maintain mechanisms that may lead to voter disenfranchisement and voter suppression. These actions risk the dilution of votes, particularly among minority groups (Frymer, 2010; Peretti, 2020). The political evolution of the ISLT should be understood as a dynamic process in which judicial interpretations of the Supreme Court intersect with legislative actions, potentially reshaping the landscape of American electoral politics, thus affecting the scope of federalism.