All Pain, Whose Gain? A Fifty-State Analysis of the Independent State Legislature Doctrine for Redistricting

The “Independent State Legislature” (ISL) doctrine has recently been offered as a reinterpretation of legislative control over federal elections and may upend decades of election law precedent. Based on Article I of the U.S. Constitution, the ISL doctrine holds that such authority of state legislatures potentially overrides state constitutions, as well as state courts, citizen initiatives, and even the governor. The original political goals of the ISL doctrine were the 2000 and 2016 Presidential elections. The doctrine has recently come before the Supreme Court in Moore v. Harper, a case concerning redistricting, and could open the door to increased gerrymandering of U.S. congressional districts. Here we analyze the practical consequences in all fifty states. We find that such a change in redistricting law would be highly asymmetric to the major political parties, giving considerable advantage to Democrats because it would undo an existing propensity for reform or judicial intervention in Democratic-leaning and swing states. This asymmetry raises questions of the desirability of introducing the ISL to questions of redistricting