Voter Due Process and the “Independent” State Legislature

Bellis, Michael P. | April 16, 2023

In a series of opinions surrounding the 2020 presidential election, multiple U.S. Supreme Court Justices broke from precedent to signal support of the “independent state legislature theory” (ISLT), a formerly obscure interpretation of state legislatures’ power over the administration of federal elections. Proponents of the ISLT allege that the U.S. Constitution grants state legislatures plenary power in federal election contexts—including the power to discount ballots, redraw legislative maps, or appoint alternative slates of presidential electors. Although the Court denied certiorari in each case, across the denials four current Justices dissented because they considered the ISLT to be a proper interpretation of Article II power. More recently, state litigants have sought to win the Court’s endorsement of the ISLT to preserve maps from the 2020 redistricting cycle that state courts found unconstitutional. Finally, ahead of the 2022 term, the Court granted certiorari in Moore v. Harper, a North Carolina redistricting case that centers on the ISLT question.

These developments are, in a word, unsettling. This Note assumes for the sake of argument that the Court will endorse some version of the ISLT in the near future, through Moore v. Harper or a similar vehicle. It argues that potential election-subversion scenarios, even if undertaken by a Court-endorsed “independent” state legislature, are nevertheless textually constrained by the Due Process Clauses of the Fifth and Fourteenth Amendments. That is, a legislature acting under color of the ISLT would violate voters’ due process “liberty” interests if it invokes the ISLT to manufacture antidemocratic outcomes. In so doing, this Note expands upon established due process frameworks in the voting context—including settled expectations, detrimental reliance, and fundamental fairness—and applies these principles to the novel context of the ISLT. By addressing a variety of textual and practical considerations in this developing area, this Note is the first to provide workable and credible constraints to limit independent legislatures from subverting well-settled democratic processes.