The Independent State Legislature Theory and Partisan Gerrymandering: How Moore v. Harper May Reshape Congressional Elections

In 2019, the U.S. Supreme Court ruled in Rucho v. Common Cause that partisan gerrymandering is not a justiciable question for federal courts. Four years later, the Court is reviewing a new case, Moore v. Harper. In Moore, the question presented is whether state courts can review partisan gerrymandering. The central question in Moore is the validity of the Independent State Legislature Theory. Proponents of the ISLT believe that state legislatures derive their authority to draw Congressional districts from the Federal Constitution and are therefore not subject to state-level checks and balances such as gubernatorial vetoes and state courts when redistricting. Critics argue that neither precedent nor the intent of the Framers grants state legislatures exclusive authority over redistricting. This paper analyzes the history of the Independent State Legislature Theory and outlines potential standards that the Court may adopt based off past-precedent. It then applies these standards to the redistricting process, arguing that nearly any form of the Independent State Legislature Theory would harm American democracy by making it easier for state legislatures to draw Congressional districts for partisan advantage. This paper concludes with strategies for mitigating the harm that would be caused if the Court legitimizes the Independent State Legislature Theory.