Court Slated to Consider Independent Legislature Theory

In Moore v. Harper, the question before the Court is “Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives … prescribed … by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.”

See below for related stories and quotes about the ongoing constitutional conversation

The Limits of Independent State Legislature Theory

Read more at the Cato Institute

Given the likelihood that the Supreme Court will endorse some version of the independent state legislature theory, it’s important for opponents of Trump‐​style election subversion to not overstate the effect it would have. No matter what the court rules in Moore, it will remain unlawful and unconstitutional for state legislatures to overturn presidential election results after the fact.

Andy Craig Staff writer at the Cato Institute, where he is the associate editor of the bimonthly magazine Cato Policy Report and the quarterly publication Cato’s Letter.

Related Stories

  • The ‘Independent State Legislature Theory,’ Explained – Brennan Center for Justice
  • Debunking ‘Democracy Vs. Republic’: The Legal Theory Firing Up GOP State Legislators – MSNBC Interview with Akhil Reed Amar
  • There Is Absolutely Nothing to Support the ‘Independent State Legislature’ Theory – The Atlantic
  • How the “independent state legislature” doctrine could transform American elections – The Economist
  • The independent state legislature theory and more on jurisdiction – SCOTUSblog