[1] The primary argument made successfully against ISL is the danger of concentrating control of elections in one part of a state's government, which would be an undemocratic violation of centuries-old precedents of federalism, separation of powers, and constitutional democracy.
The doctrine first appeared in legal arguments raised by attorneys for then-presidential candidate George W. Bush, seeking to stop the recount of votes in Florida during the 2000 U.S. presidential election.
In upholding the law, the Court quoted approvingly from an 1874 Senate committee report containing language recognizing the absolute power of state legislatures to appoint presidential electors.
In 1932 the Supreme Court ruled in Smiley v. Holm that the U.S. Constitution does not forbid a governor from vetoing a redistricting proposal passed by the state legislature.
The modern revival of interest in ISL at the Supreme Court stems from Bush v. Gore, specifically from a three-Justice concurring opinion in that case written by Chief Justice Rehnquist.
In rejecting the majority's reasoning, the Chief Justice commented ironically on the amendment's ratification efforts: "What chumps!
[6][7] In a federal case challenging Wisconsin's absentee voter laws, Justices Brett Kavanaugh and Neil Gorsuch voiced interest in adopting the doctrine.
Specifically, Justice Kavanaugh wrote in favor of ISL as derived from the Presidential Electors Clause, writing "The text of Article II means that the clearly expressed intent of the legislature must prevail and that a state court may not depart from the state election code enacted by the legislature.
[6] The state supreme court's ruling invalidated the North Carolina General Assembly's adoption of a congressional map for the 2022 U.S. midterm elections and ordered the implementation of a judicially created map, on the grounds that it was an extreme case of gerrymandering in favor of the Republican Party.
[19]: 32–37 [20] He also cites Article I, Section 4, Clause 1 (The Elections Clause): "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators."
"[4] Other legal scholars consider ISL to be "fatally inconsistent with basic precepts of both federalism and the separation of powers" as well as "an unprecedented, unconstitutional, and potentially chaos-inducing intrusion into state election law.
"[25][26] Practically, ISL would mean that the general public (through ballot initiatives), governors (elected statewide and so not affected by district borders) and state courts would have no role in altering election laws or federal congressional boundaries, even if they violate the state constitution.
[27][3] Adoption of the ISL could create substantial confusion about the validity of a number of state election laws and regulations[28] and even be destabilizing.
[34] In an amicus brief submitted for Moore v. Harper, a bipartisan group of former public officials and federal judges warned that "a broad view of the so-called independent state legislature theory ... would essentially hand the future of democratic representation in the states to those motivated to entrench political power in a single party.