When It Comes to Electoral Disputes, State Justices are Less Reliable GOP Allies than U.S. Supreme Court Justices—and That’s the “Problem” (Even a Modified Version of) the Independent State Legislature Claim Hopes to Solve

Forthcoming (2024) in the Annals of the American Academy of Political and Social Science

Rebecca L. Brown, University of Southern California
Lee Epstein, University of Southern California
Michael J. Nelson, Penn State University

Abstract
Scholarly alarm has sounded about the danger of the Independent State Legislature (ISL) claim, which precludes state-court review of state laws regulating elections and thus prevents state constitutional guarantees like “free and fair elections,” equality, and the like from being enforced. The critics have warned of both theoretical and pragmatic pitfalls of this claim.

Considering these flaws, we ask why ISL would be pursued so fervently, and why the U.S. Supreme Court, in Moore v. Harper (2023), adopted a version of ISL, that, while not precluding state court review, limits it in a way that allows the Court to intervene at its own discretion.

To answer these questions, we examined data comparing the fate of electoral disputes in the U.S. and state supreme courts. We found that state supreme court justices, even if Republican, are not reliable partisan supporters of the GOP agenda for restricting voting. The Roberts Court, by contrast, has voted in the GOP-supported direction in the vast majority of election-law cases that it has decided. Thus, we have an explanation for why ISL has been promoted so vigorously: it puts electoral decisions—such as who can vote, whose votes are counted, rules for counting, and the like—squarely into the hands of the Supreme Court, a reliable partisan ally.

Click here for the first version of the paper (.pdf)