Will SCOTUS blow up 233 years of established law and nullify hundreds of state constitutional provisions that govern federal elections? Believe it or not, that question was in front of justices today. And the answer is probably not. jaymichaelson writes
independent state legislature theory
The basis for the theory is some unusual language in the Elections Clause of the Constitution, which states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” This is indeed unusual: The federal Constitution is assigning power not to states or state governments but directly to legislatures.
Adopting the ISLT would also spell electoral chaos. If state legislatures aren’t held back by state constitutional provisions, they could change not only voting rules and congressional districts but also the way presidential electors are selected — which Donald Trump’s clown car argued back in 2020 — and be accountable only to federal courts and to Congress.
Based on today’s oral arguments, it doesn’t look that way. Justices Neil Gorsuch and Samuel Alito were the only two justices who seemed amenable to this radical rewriting of American democracy. Gorsuch in particular badgered Katyal incessantly, accusing him of “defending” antebellum Virginia’s adoption, in 1830, of the “three-fifths compromise,” the odious constitutional provision counting Black men as equal to three-fifths of a citizen.
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