For 20 years, the doctrine lay dormant. It was resurrected in 2020 by allies of Donald Trump, who needed some constitutional pretense for their attempt to overturn his defeat. Before the election, a number of state courts had ordered state governments to make accommodations for the pandemic, citing state constitutions. Elsewhere, governors, secretaries of state and state boards of election took matters into their own hands, bypassing the legislature (and using their own authority under the law) to accommodate voters. When, after the election, the Trump campaign sued either to throw out ballots or to invalidate results, its lawyers offered the independent state legislature doctrine as justification. So, too, did supporters of Trump who wanted Republican legislatures to void election results and choose electors who would give the president a second term.The basic problem with this doctrine is that it’s bunk. “The text of the elections and electors clauses is silent as to the role of state constitutions, but the subsequent history is anything but,” the legal scholar Michael Weingartner writes in a draft article on the theory of independent state legislatures. “Since the founding, state constitutions have both directly regulated federal elections and constrained state legislatures’ exercise of their authority under the clauses.” What’s more, over the past century, “nearly every election-related state constitutional provision was either approved and presented to voters by state legislatures or placed on the ballot and enacted by voters directly.” Even if the federal Constitution is vague on the full scope of state legislative power to regulate elections, both history and practice have fixed the meaning of the relevant clauses in favor of constraint. State constitutions (and state courts) do in fact regulate state legislatures as it relates to election law.Some proponents of the independent state legislature doctrine argue that theirs represents the original understanding of the elections and electors clauses in the Constitution. Another researcher, Hayward H. Smith, says otherwise. “The history demonstrates beyond cavil that the founding generation understood that ‘legislatures’ would operate as normal legislatures, not independent legislatures, with respect to both procedure and substance,” he writes. In fact, he notes, a review of every state constitution adopted in the 19th century reveals “that both explicit and nonexplicit limitations on ‘legislatures’ were widespread before, during, and after the Civil War.”There’s simply no basis for the claim that the Constitution grants state legislatures this kind of unaccountable power over the conduct of federal elections. It runs counter to the basic idea behind the American political system — that is, the sharing and separation of power among competing and overlapping institutions. It defeats the purpose of this delicate balance to give state legislatures plenary power over federal elections (to say nothing of how it is incongruent with the elite frustration over the scope of states’ power that gave rise to the Constitution in the first place).Thankfully, the Supreme Court rejected the challenge from Republicans in Pennsylvania and North Carolina. Still, there may be four votes for the theory of the independent state legislature. In a 2020 dissent from the majority on the question of whether Pennsylvania should count certain mail-in ballots, Justices Thomas, Samuel Alito and Brett Kavanaugh appeared sympathetic to the doctrine. Justice Neil Gorsuch endorsed it outright, writing that “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”Dissenting from the court’s decision in the North Carolina case, Justice Alito called the question of state legislative power an issue of “great national importance,” a clear signal that he is open to the arguments of Republican legislators. Justice Kavanaugh concurred. “I agree with Justice Alito that the underlying elections clause question raised in the emergency application is important, and that both sides have advanced serious arguments on the merits. The issue is almost certain to keep arising until the court definitively resolves it.”It is unclear where the newest justice, the Trump appointee Amy Coney Barrett, stands on the doctrine, although she appears to have voted with the majority in these particular cases.