Publication Date



The U.S. Constitution does not confer authority to regulate
federal elections on states as entities. Rather, it grants that
authority specifically to the “Legislature” of each state. The
“independent state legislature doctrine” teaches that a state
constitution is legally incapable of imposing substantive
restrictions on the authority over federal elections that the U.S.
Constitution confers directly upon a state’s legislature. Over the
past 130 years, the U.S. Supreme Court has repeatedly adopted
conflicting positions on this doctrine without recognizing its
deep historical roots or normative justifications.
The independent state legislature doctrine reflects the
prevailing understanding of states, Congress, and other actors
in the nineteenth century. Throughout that period, the doctrine
was consistently applied across a broad range of circumstances.
It protects important structural considerations and is
consistent with the political theory underlying the U.S.
Constitution’s election-related provisions. The U.S. Supreme
Court could reincorporate the doctrine into modern American
law with minimal disruption to either its precedents or state

election systems. Moreover, the doctrine may present a
potentially substantial obstacle to the use of state constitutions
to combat partisan gerrymandering in congressional elections.