"The Independent State Legislative Theory"

In Moore v. Harper, a case soon to get a hearing before the U.S. Supreme Court, the ridiculous "independent state legislature theory" is being taken seriously by the high court. (Image: Brennan Center for Justice)

Less Than 2 Minutes to Understand the GOP's Dangerous 'Independent State Legislature Theory'

Anyone with an elementary-school understanding of checks and balances should recognize that this is a bad idea—but the Republicans are gunning for it.


The Supreme Court will soon hear arguments on the "independent state legislature theory," a dubious reading of the Constitution that would let state lawmakers gerrymander and suppress votes without the traditional limitations imposed by governors, state judges, and state constitutions. Checks and balances -- so central to our country's vision -- would be wiped out.

The framers didn't intend this outcome. The text of the Constitution does not compel it. Throughout history, it didn't even come up. And anyone with an elementary-school understanding of checks and balances should recognize that it's a bad idea. It must also be noted, the Supreme Court has already rejected it, most recently in 2015.

And yet, in Moore v. Harper, the theory is being taken seriously by the high court. Its proponents hope that new justices will yield a different outcome, in the same way that opponents of reproductive rights managed to overturn Roe v. Wade without achieving a meaningful change in national opinion.

If this all sounds outlandish, well, it is. And it is a bit complex, a bit arcane.

A key way to stop this radical move is to start by raising public awareness. At a time when even justices are warning that the Supreme Court is squandering its legitimacy, public attention will matter.

We at the Brennan Center are playing our role in warning people of the dangers of the independent state legislature theory. We have explainers on both the theory itself and Moore v. Harper, the case pending before the Supreme Court. We compiled an academic literature review to show that the theory exists purely on the fringes of scholarship. And Brennan Center lawyers, some of the world's experts in this field, have fanned out to help educate legislators and the public.

Today the Brennan Center launched a new effort to explain the risks: a short, animated video that we hope you will watch and share widely. Broad understanding of (and opposition to) the independent state legislature theory will force the Supreme Court to think twice about adopting this radical and disruptive idea.

They may protest loudly to the contrary, but the justices are well aware of public opinion. It's important that an unwise ruling would be seen for what it would be: a radical step that would undermine American democracy. Let's make sure they know that we know.

© 2023 Brennan Center for Justice