208 ANNALS, AAPSS, 708, July 2023
DOI: 10.1177/00027162241231137
In Electoral
Disputes, State
Justices Are
Less Reliable
GOP Allies
than the U.S.
Supreme
Court—That’s
the “Problem”
the
Independent
State
Legislature
Claim Hopes to
Solve
By
REBECCA L. BROWN,
LEE EPSTEIN,
and
MICHAEL J. NELSON
1231137ANN THE ANNALS OF THE AMERICAN ACADEMYTHE “PROBLEM” THE ISL CLAIM HOPES TO SOLVE
research-article2024
Scholars have identified serious drawbacks to the inde-
pendent state legislature (ISL) claim, which precludes
state-court review of election laws, thus preventing
state guarantees like “free and fair elections” from
being enforced. Considering its flaws, we ask why ISL
would be pursued so fervently and why the Supreme
Court, in Moore v. Harper, adopted a version of it.
Examining data that compare election-law outcomes in
federal and state supreme courts, we found that state
supreme court justices, even if Republican, are not reli-
able supporters of the GOP electoral agenda. The
Roberts court, by contrast, has voted in the GOP-
supported direction in most election-law cases it has
decided. This, we argue, is why ISL is promoted so
vigorously: it takes electoral disputes—such as who can
vote, what the rules for counting are, and such—out of
the hands of state courts and places them squarely into
the hands of the Supreme Court, a reliable partisan ally.
Keywords: independent state legislature doctrine;
Moore v. Harper; election law; U.S.
Supreme Court; state supreme courts;
judicial behavior; partisanship
With the appointment of Amy Coney
Barrett in 2020, the Supreme Court has,
for the first time in history, a majority of
Correspondence: lepstein@law.usc.edu
Rebecca L. Brown is Rader Family Trustee Chair in
Law at the University of Southern California Gould
School of Law. She teaches and writes in constitutional
law and theory. Before entering academia, Brown
clerked for Justice Thurgood Marshall and served in the
Justice Department’s Office of Legal Counsel.
Lee Epstein is University Professor of Law & Political
Science and Hilliard Distinguished Professor of Law at
the University of Southern California. Her research
and teaching interests center on law and legal institu-
tions, especially the behavior of judges.
Michael J. Nelson is a professor of political science and
affiliate law faculty at the Pennsylvania State University.
He studies law and courts, with particular attention to
judicial behavior, judicial elections, and the public’s
perceptions of the judiciary.
THE “PROBLEM” THE ISL CLAIM HOPES TO SOLVE 209
self-described originalist justices, three of whom were nominated by a president
who failed to win the majority of votes cast and confirmed by a portion of the
Senate representing a minority of the national population. While ours has never
been a system driven by pure majority rule, there have always been paths through
which the public can press its values on the decision-making institutions that
govern it, whether by voting, by organizing social movements, or by forming
coalitions to persuade legislators. In the current moment, by contrast, a conflu-
ence of four factors puts the nation on a collision course with its own democratic
intuitions: judicial insistence upon imposing 18th-century values, no matter how
much they diverge from current social mores; systematic denial to national
majorities of the opportunity to determine political outcomes by virtue of
increasingly robust structural impediments such as gerrymandering, the Electoral
College, and equal suffrage in the Senate (Gould and Pozen 2022); entrenched
partisan polarization exacerbated by an increasingly partisan Supreme Court
(Devins and Baum 2019; Hasen 2019); and the utter impossibility of constitu-
tional amendment.
American democracy cannot be expected to sustain the immense pressure that
this quartet of stressors places upon it. It is a pressure cooker with no release
valve. We argue that, if the Court wishes to avoid constitutional crisis, it should
begin to incorporate into its interpretations of structural provisions some consid-
eration of the needs and commitments of democracy, and not rigidly pay obei-
sance to contested interpretations of text or original understanding that seem
inextricable from partisan bias and oblivious to the realities of modern-day gov-
ernance. The judicial supremacy that the justices increasingly promote is a real
threat to self-government both in appearance and in reality.
As just one example, we study a case that could become a major factor deter-
mining the success or failure of democracy itself in the 2024 election: the so-
called “independent state legislature” (ISL) claim. As we discuss in detail below,
the ISL claim suggests that state legislators—not state courts or other state gov-
ernment officials—have the final say over the legality of the rules state legisla-
tures set for the conduct of elections. The ISL claim therefore authorizes federal
courts to overturn state court rulings regarding state election laws. The ISL claim
has given rise to a great deal of concern among constitutional scholars (e.g., Krass
2022; Litman and Shaw 2022; Smith 2022), precisely because its serious implica-
tions for broad structural values, like federalism and election integrity, are not
among the kinds of questions the current Supreme Court has shown a willingness
to consider before issuing sweeping interpretations of the Constitution’s text.
Though the Supreme Court did not fully embrace the ISL claim in Moore v.
Harper (2023), it did not completely repudiate it either, leaving open the possi-
bility for the Court to play an outsized role in congressional and presidential
elections to come—at the Court’s discretion.
NOTE: We are grateful to Matt Hall and Luis Fraga for helpful comments. Epstein thanks the
John Simon Guggenheim Foundation, the National Science Foundation, and the University of
Southern California for supporting her research on judicial behavior. Brown gratefully
acknowledges the support of the Dean’s Research Fund at USC Gould School of Law.
