Podcast Summary: The Flimsy Legal Theory That Could Upend American Elections

The Political Scene | The New Yorker
Date: June 7, 2023
Host: Tyler Foggatt
Guest: Andrew Marantz, Staff Writer at The New Yorker

Episode Overview

This episode dives deep into the “Independent State Legislature Theory” (ISLT), a once-fringe legal interpretation that could fundamentally shift how American federal elections are run. Host Tyler Foggatt is joined by Andrew Marantz, who reported on the origins and dangers of ISLT, especially as it comes before the Supreme Court in the case Moore v. Harper. Their conversation unpacks the constitutional basis of the theory, its recent surge in political relevance, and the implications it poses for the future of U.S. democracy.

Key Discussion Points & Insights

What is the Independent State Legislature Theory (ISLT)?

• Rooted in the "elections clause" and the "electors clause" of the U.S. Constitution, both stating that certain election processes should be determined by “the legislature” of each state.
• ISLT proponents argue this grants state legislatures plenary (nearly unchecked) power over federal elections—potentially allowing them to override the popular vote or be immune from state court review.
• Marantz summarizes:

  "To the very extreme proponents of the independent state legislature theory, they read the Constitution to say whatever a state legislature decides to do in choosing how to administer an election, they can do it. And some of them think that that power is plenary, meaning no one can challenge it." (03:32)

How Did This Theory Emerge from the Fringes?

• Though legal scholars long dismissed ISLT as “pulled out of somebody’s butt” or “right wing fanfic,” (01:54) it has surfaced in significant political moments:
  • Cited in Bush v. Gore (2000) in a concurring opinion as a hypothetical rationale for stopping a Florida recount.
  • Advocated by fringe legal figures like John Eastman, who advised Republicans in 2000 and later Trump’s 2020 team.
  • Four Supreme Court justices—Alito, Thomas, Gorsuch, and Kavanaugh—recently indicated it merits serious consideration.

  "This theory was essentially invented by the George W. Bush legal team in the post 2000 election period... Brett Kavanaugh, John Roberts, and Amy Coney Barrett [were] working for that team." (14:01)

Why is ISLT Suddenly Important?

• Recent Republican-led state legislatures used procedural rules (such as gerrymandering) to entrench their power, exploiting vagueness in how elections can be administered.
• ISLT could permit even more extreme measures, including potentially disregarding the popular vote.
• The issue has crystallized in the North Carolina case Moore v. Harper, after state courts ruled the legislature’s redistricting maps unconstitutional per the state constitution but the legislature objected—citing ISLT.

  "Tim Moore... appealed to the Supreme Court and said, hey, they can't do this. They're challenging our authority, and we're the legislature." (20:14)

The Supreme Court and Moore v. Harper

• Legal observers initially feared the Court’s conservative majority might fully embrace ISLT.
• However, after the 2022 midterm elections (where Republicans underperformed), and a flood of opposition from across the legal spectrum, so-called "moderates" like Roberts, Kavanaugh, and Barrett showed skepticism in oral arguments.

  "By the time the case came before the court, Roberts and Barrett and Kavanaugh seemed much more skeptical." (22:56)

• Still, the outcome is uncertain. A ruling could be broad or narrow, or the Court might avoid a substantive decision if underlying facts have changed.
• Marantz notes:

  "It could be a version of that moderate king approach. I mean, it's hard to know exactly the shape of that... But they were talking a lot about standards: what standard would you need to apply for a state court to get in the way of a state legislature? It would have to be a very high standard..." (25:49)

Risks and Implications

• ISLT hinges on the assumption that legislatures will act in good faith—a risky bet given recent partisan maneuvers.
• The case's ambiguity and the Constitution’s “majestic vagueness” mean the theory could persist as a “zombie legal theory,” invoked whenever politically advantageous.
• Even if the Court moderates a ruling, the slow erosion of checks and balances (what Marantz calls democratic backsliding) might continue unnoticed by most Americans.

  "There isn’t going to be a front-page story about it in the newspaper because there are a dozen other crises per day for people to pay attention to. It just continues in this very gradual boiling frog kind of plotting." (32:21)

Notable Quotes & Memorable Moments

• On ISLT’s Absurdity:
  "One legal scholar said the theory was pulled out of somebody’s butt. Another referred to it as right wing fanfic." — Tyler Foggatt (01:54)

• On the Power Grab:
  "If you wanted to attempt a power grab where you were trying to rewrite the rules of democracy, the best way to do it would be to do it in such a technical way that almost no one even noticed you were doing it." — Andrew Marantz (05:11)

• On the ‘Emergency Brake’ of American Democracy:
  "I just don't think that the fact that we pulled the emergency brake in time for the car not to fall off the cliff is like the guardrail saving us from that cliff is so great and impenetrable. You know, I just don't think that." — Andrew Marantz (35:10)

• On the Constitution’s Dual Nature:
  "It is in some ways really majestic how vague the Constitution is... And yet the obvious corollary... is if your motives are to do the opposite, to take power away from people, you can find plausible ways of doing that too." — Andrew Marantz (33:06)

Important Segment Timestamps

• [01:15] — Introduction to ISLT: what it is and why it matters
• [02:20] — The constitutional clauses underpinning ISLT
• [08:21] — How Bush v. Gore and legal conservatives revived ISLT
• [13:42] — Fraud & “Emergency Powers” in Elections
• [19:03] — Moore v. Harper: overview of facts and parties
• [21:54] — Cross-partisan opposition to ISLT and impact of the 2022 midterms
• [25:49] — How might the Supreme Court “split the baby” on ISLT?
• [32:24] — The risk of complacency and erosion of democratic norms
• [33:06] — The “majestic vagueness” of the Constitution

Conclusion

This episode provides a lucid, detailed explanation of the Independent State Legislature Theory, laying bare its constitutional logic, its journey from fringe to present-day relevance, and the alarm it provokes across most of the legal establishment. The conversation underscores the dangers of drifting toward rule-by-technicality and the need for a robust democratic culture—not just legal guardrails—to sustain American democracy.

Recommended Read:
Andrew Marantz’s article, “How a Fringe Legal Theory Became a Threat to Democracy,” at newyorker.com