Almost Absolute: The Rise and Fall of the Legislature Theory

• Introduction
• Chapter 1 The Textual Spark: The Elections and Electors Clauses
• Chapter 2 Constitutional Echoes: State Constitutions and Early American Voting
• Chapter 3 The Forgotten Precedents: Nineteenth-Century Clashes over Legislative Will
• Chapter 4 Florida, 2000: The Midnight Concurrence in Bush v. Gore
• Chapter 5 Rehnquist’s Hypothesis: Sowing the Seeds of Independent Authority
• Chapter 6 The Long Incubation: Conservative Legal Networks and Originalist Theory
• Chapter 7 A Sleeping Doctrine: The Decade of Doctrinal Silence
• Chapter 8 Drawing the Lines: The Gerrymandering Wars of the 2010s
• Chapter 9 The Arizona Experiment: Independent Commissions and AIRC v. Arizona Legislature
• Chapter 10 The Ghost in the Dissent: Roberts, Thomas, and the Re-emergence
• Chapter 11 Partisan Cartography: The Road to Rucho v. Common Cause
• Chapter 12 Pandemic Democracy: Emergency Orders and Judicial Backlash in 2020
• Chapter 13 The Midnight Docket: The Shadow Docket and the Doctrine's Return
• Chapter 14 The 2020 Election Aftermath: Fringe Theories in the Crosshairs of Power
• Chapter 15 The Architects: The Legal Minds Behind the Independent Theory
• Chapter 16 The North Carolina Laboratory: Maps, Courts, and Legislative Rebellion
• Chapter 17 The Path to Certiorari: How Moore v. Harper Reached the High Court
• Chapter 18 A Republic in the Balance: The Alarming Stakes of Absolute Power
• Chapter 19 The Amicus Army: Historians, Scholars, and the Battle for the Record
• Chapter 20 Confronting the Founders: Historical Scrutiny and the Founding Era
• Chapter 21 Oral Arguments: Three Hours Inside a Constitutional Storm
• Chapter 22 The Procedural Twist: North Carolina’s Mid-Case Reversal
• Chapter 23 The Ruling: John Roberts and the Defeat of the Absolute Doctrine
• Chapter 24 Guardrails Intact: The Real-World Consequences of the Moore Decision
• Chapter 25 The Future of Election Law: Lessons from a Constitutional Near-Miss

On a quiet Tuesday morning in December 2022, the bronze doors of the Supreme Court of the United States closed behind hundreds of spectators, advocates, and journalists who had gathered to witness an argument over what seemed, at first glance, like an esoteric dispute about North Carolina’s congressional map. Yet beneath the dry language of redistricting lay a constitutional firestorm. The question before the nine justices was not merely whether state lawmakers had drawn unfairly partisan district lines; it was whether state lawmakers possessed the unilateral authority to set the rules for federal elections entirely free from the oversight of their own state courts, immune to their own state constitutions, and detached from the standard checks and balances that have governed the American republic since its founding. This radical doctrine, known as the independent state legislature theory, promised to place the machinery of American democracy almost exclusively in the hands of partisan politicians.

For most of the nation’s history, the idea that a state legislature could operate as an untethered, sovereign entity within its own borders would have been treated as an absurdity. The American constitutional experiment was built upon the bedrock of divided power. In every state, legislatures are creatures of their state constitutions; they are created, constrained, and held accountable by the fundamental charters adopted by the people. Yet proponents of the independent state legislature theory seized upon a literalist, hyper-isolated reading of two clauses in the federal Constitution: the Elections Clause and the Electors Clause. By noting that these provisions assign the time, place, and manner of holding congressional elections, as well as the appointment of presidential electors, to the "Legislature" of each state, a daring cohort of legal theoreticians argued that the Framers intentionally bypassed state judiciaries, governors’ vetoes, and popular referendums. If accepted, this premise meant that when regulating federal elections, state legislatures were not bound by the very state constitutions that gave them life.

The concept was not born in the heat of contemporary political warfare, nor was it a spontaneous development of post-2020 election skepticism. Instead, it was an idea with a pedigree that stretched back through the fault lines of modern American politics, incubated in quiet academic circles and conservative legal organizations for more than two decades. Its first major modern manifestation arrived in the chaotic dawn of the twenty-first century, buried within a concurring opinion by Chief Justice William Rehnquist in Bush v. Gore. That three-justice concurrence was largely treated at the time as a footnote—an anomalous, desperate gambit thrown against the wall during a once-in-a-generation presidential succession crisis. For years, the doctrine slept, viewed by leading scholars across the ideological spectrum as a fringe, unsustainable novelty.

Yet ideas in American jurisprudence rarely die; they simply await their season. Over the course of twenty years, against a backdrop of escalating political polarization, aggressive partisan gerrymandering, and a rapidly transforming federal judiciary, the theory was systematically resurrected. What began as an intellectual curiosity became an indispensable tool for partisans seeking to insulate legislative majorities from state constitutional limits. By the time the COVID-19 pandemic introduced unprecedented disruptions to voting procedures in 2020, the independent state legislature theory had migrated from the law review margins to the Supreme Court's emergency shadow docket. Key justices signaled an openness to reevaluating the doctrine, emboldening state politicians to push the envelope until the theory arrived in the formal merits docket in Moore v. Harper. The fringe had become the center.

This book is the biography of that dangerous idea. It traces the trajectory of a constitutional thesis from its ambiguous roots in the late eighteenth century, through its catalytic resuscitation in Florida in 2000, to its climactic showdown in the highest court in the land. Along the way, it explores the internal machinery of the legal movement that championed the theory: the originalist debates, the network of conservative advocacy groups, the high-stakes redistricting wars of the 2010s, and the emergency legal blitzes that defined the 2020 presidential election. It details the extraordinary mobilization of historians, legal scholars, and democracy advocates who took to the archives to debunk the historical claims underpinning the doctrine, and it pulls back the curtain on the dramatic oral arguments and internal judicial deliberations that culminated in Chief Justice John Roberts’s landmark opinion decisively repudiating the doctrine’s most extreme form.

To understand the rise and fall of the independent state legislature theory is to understand how American constitutional law actually works in an era of deep division. It is a case study in how fringe legal concepts gain momentum, how partisan imperatives shape constitutional interpretation, and how close the American legal architecture came to having its most fundamental guardrails dismantled. Almost Absolute is not merely an accounting of legal briefs and judicial conferences; it is an investigation into the fragility of democratic institutions and a chronicle of a constitutional near-miss that reshaped the landscape of American election law for generations to come.

Every major constitutional doctrine begins with a text, and the independent state legislature theory rests its entire weight on two short sentences written in the summer of 1787. These provisions, embedded within the primary architecture of the United States Constitution, govern how the nation selects its federal representatives and its chief executive. To the casual reader, the phrasing appears straightforward, almost routine—a functional division of administrative responsibilities between the national government and the states. Yet beneath this operational simplicity lies a linguistic ambiguity that would, more than two centuries later, become one of the most fiercely contested battlegrounds in American legal history.

The first of these provisions is the Elections Clause, set forth in Article I, Section 4, Clause 1 of the Constitution. It dictates that the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, though Congress may at any time by law make or alter such regulations, except as to the places of choosing senators. The second provision is the Electors Clause, located in Article II, Section 1, Clause 2, which establishes that each state shall appoint, in such manner as the legislature thereof may direct, a number of presidential electors equal to the whole number of senators and representatives to which the state may be entitled in the Congress.

At the heart of both clauses is a single capitalized noun: "Legislature." The debate that eventually reached the Supreme Court turned on a fundamental question of syntax and constitutional design: when the Framers assigned these specific powers to the "Legislature" of each state, did they mean the representative lawmaking body acting through its ordinary constitutional process, subject to the usual checks and balances of state law? Or did they mean to confer an extraordinary, direct grant of federal power to the legislative assembly itself, untethered from the state constitution that created it?

To understand how this single word became a constitutional flashpoint, one must look closely at how the text is constructed. Textualism, as a method of statutory and constitutional interpretation, emphasizes the plain meaning of words as they were understood at the time of their drafting. Proponents of the independent state legislature theory built their foundational argument on a strictly literal reading of the word "Legislature." They pointed out that the Framers were meticulous draftsmen who selected their terms with precision. Throughout the Constitution, the text alternates between assigning duties to "each State," to the "People," or specifically to the "Legislature."

For instance, when the Framers wished to grant authority to the state as a political entity as a whole, they knew how to do so. Article I, Section 2 states that qualifications for electors in House elections shall match those required for electors of the most numerous branch of the "State Legislature," but it otherwise speaks of the states as complete political units. Elsewhere, the Constitution refers to actions taken by "a State" or "the States." By explicitly choosing the word "Legislature" in the Elections and Electors Clauses, advocates of the theory argued, the Framers were designating a specific institutional actor, not the general lawmaking apparatus of the state.

Under this strict reading, the power to regulate federal elections is not an inherent sovereign power of the state that pre-existed the Union. Instead, it is a specific, delegated federal duty assigned directly by the federal Constitution to a specific entity: the elected legislative body. Because this power flows directly from the federal Constitution to the state legislature, the argument goes, the state legislature acts as a federal functionary when setting election rules. Consequently, state courts, state governors, and state constitutional provisions have no legitimate authority to alter, veto, or strike down the rules created by that legislature for federal contests.

To modern ears, this distinction might sound like a hyper-technical debate over semantics, but its implications are vast. If a state constitution contains a guarantee of free and fair elections, or prohibitions against partisan manipulation, does that state constitution bind the state legislature when it draws congressional districts or alters voting procedures for federal office? Under a maximalist interpretation of the text, it does not. The legislature, when executing its federal constitutional duty, operates in a separate sphere—an island of legislative authority insulated from the state constitution that brought the legislature into existence in the first place.

However, opponents of this rigid textual reading argue that the term "Legislature" cannot be plucked out of its historical and structural context without doing violence to the broader framework of American constitutionalism. When the Federal Constitution was drafted in Philadelphia, state legislatures did not exist in a vacuum. They were created by state constitutions, which defined their powers, established their boundaries, and created mechanisms for lawmaking. To early Americans, a "legislature" was not merely a collection of politicians sitting in a chamber; it was an institution defined and constrained by the fundamental law of its state.

Under this counter-perspective, when Article I and Article II refer to the "Legislature" prescribing rules or directing the appointment of electors, the term naturally implies the legislature performing its normal lawmaking function. In the American tradition, standard lawmaking is an exercise that takes place within the parameters established by a charter of government. A state legislature cannot make a law in violation of its state constitution, nor can it bypass the governor's veto or judicial review if the state constitution requires those steps, because a body cannot exercise authority greater than the instrument that granted it existence.

This structural debate is further complicated by the way the Framers used the term "Legislature" across different provisions of the U.S. Constitution. The original text contains several references to state legislatures, assigning them distinct roles that vary significantly in character. In some instances, the legislature is tasked with a purely elective or administrative duty, such as the original mechanism for choosing U.S. Senators under Article I, Section 3, prior to the ratification of the Seventeenth Amendment. In that context, the state legislature acted directly as an electoral college of sorts, choosing individuals to represent the state in the Senate.

In other instances, such as Article V's provision for ratifying constitutional amendments, state legislatures perform an extraordinary federal constitutional function that is explicitly distinct from ordinary state lawmaking. The Supreme Court recognized early in the twentieth century that when a state legislature ratifies an amendment to the U.S. Constitution, it is performing a federal function under Article V that cannot be subjected to a popular referendum or a gubernatorial veto. Proponents of the independent state legislature doctrine frequently pointed to these Article V precedents as proof that state legislatures can act independently of their normal state constitutional constraints when performing federal constitutional duties.

Yet the phrasing in the Elections Clause differs in a crucial respect from Article V: it speaks of "prescribing" rules. Prescribing rules for the times, places, and manner of holding elections looks, sounds, and functions like ordinary legislation. Making laws to govern elections involves setting dates, defining voter qualifications, establishing polling places, designing ballots, and drawing district boundaries. Historically, these actions have been executed through statutes—bills passed by the legislative houses and presented to the executive, subject to judicial review under the applicable state constitution.

The debate over the textual spark of the theory is therefore a debate over whether "prescribing" election rules is an act of ordinary lawmaking or an extraordinary federal power. If it is ordinary lawmaking, then it must follow the state's ordinary constitutional procedures for lawmaking, which include compliance with state constitutional guarantees and judicial oversight. If it is an extraordinary federal delegation, then the state legislature acts as a supreme, unchecked authority within that specific domain, constrained only by overriding federal statutes and the federal Constitution itself.

The drafting history at the Constitutional Convention of 1787 provides critical context for why the Elections Clause was constructed as it was. The Framers were acutely concerned with the potential for state governments to sabotage or undermine the newly proposed national government. Under the Articles of Confederation, the central government was notoriously weak and entirely dependent on the willingness of states to supply funds and delegates. At the convention in Philadelphia, national reformers like James Madison argued forcefully that the new federal government must possess the power to ensure its own survival.

If a state were to refuse to hold elections for federal representatives, or if it were to enact rules designed to paralyze the federal government, the new republic could collapse from within. To prevent this, the Framers inserted a compromise into the Elections Clause. They gave the initial responsibility for setting election rules to the states—specifically through their legislatures—but they added a crucial federal backstop: "but the Congress may at any time by law make or alter such Regulations."

This congressional override clause was designed as a shield for the national government against state default or abuse. Madison explicitly explained in the Federalist Papers that the primary purpose of federal oversight was to ensure that the national government would not be at the mercy of the states for its own existence. If a state legislature refused to draw districts or schedule elections, Congress could step in and supply the necessary rules.

What the Framers did not explicitly address in the text, however, was the internal distribution of power within the states themselves regarding these rules. They were writing at a time when state constitutions were relatively young, having been drafted in the wake of the Declaration of Independence. Most early state constitutions granted immense power to state legislatures while keeping state executives weak and judiciaries relatively undeveloped. Because legislative supremacy was the prevailing political reality in many states in the 1780s, the Framers used the word "Legislature" as the natural, primary descriptor for the lawmaking power of a state.

This historical reality created a latent ambiguity. Did the Framers specifically intend to isolate state legislatures from state constitutional limits, or did they simply use the term "Legislature" because, in 1787, the legislature was the primary organ of state lawmaking? For over two centuries, this textual question remained largely theoretical, a minor puzzle in the margins of constitutional scholarship. But as state constitutions evolved to include stronger protections for voting rights, independent commissions, and robust judicial review, the gap between these two interpretations expanded.

The conflict between the literal reading of "Legislature" and the structural view of integrated state power forms the bedrock of the entire controversy. Proponents saw in the text an unambiguous grant of exclusive authority, a plain command from the founders that meant precisely what it said. Opponents saw a contextual shorthand for the state's ordinary lawmaking process, one that could never be severed from the constitutional foundations that created the legislative office itself. How this textual ambiguity was interpreted over time—and how it transformed from an academic argument into a potent legal doctrine—is the central story of the rise and fall of the independent state legislature theory.