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The Political Scene | The New Yorker

The Flimsy Legal Theory That Could Upend American Elections

The Political Scene | The New Yorker

The New Yorker

President, Barack, News, Politics, Wnyc, Obama, Lizza, Washington, Wickenden

4.33.9K Ratings

🗓️ 7 June 2023

⏱️ 38 minutes

🧾️ Download transcript

Summary

There’s a connection between Bush v. Gore, gerrymandering in North Carolina, and Donald Trump’s legal challenges to the 2020 election: they’ve all been justified by a dubious legal idea called the “independent-state-legislature theory,” or I.S.L.T. Its proponents argue that the Constitution gives state legislatures complete authority over elections, even the authority to override the popular vote. In a story by Andrew Marantz in this week’s magazine, Laurence Tribe, a law professor emeritus at Harvard, says I.S.L.T. was “pulled out of somebody’s butt.” Leah Litman, a law professor at the University of Michigan, calls it “right-wing fanfic.” But, as fringe as it may be, this theory is now before the Supreme Court, in the case Moore v. Harper. Marantz joins Tyler Foggatt to discuss how the theory took hold and what the consequences of the Supreme Court decision could be.

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Transcript

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Things people love.

0:47.9

You're listening to The Political Scene.

0:50.3

I'm Tyler Foggett and I'm a senior editor at The New Yorker.

0:53.6

There's a connection between Bush v. Gore, gerrymandering in North Carolina, and Donald

0:58.9

Trump's legal challenges to the 2020 election. They've all been justified by a flimsy legal idea

1:04.7

called the independent state legislature theory, or ISLT. Some people argue that it gives state

1:10.7

legislatures complete power over how they run

1:13.0

federal elections, even if this means overriding the popular vote.

1:17.5

Andrew Moran's wrote about the rise of ISLT for this week's magazine.

1:21.4

In his story, one legal scholar said the theory was, quote, pulled out of somebody's butt,

1:26.6

another referred to it as right-wing fanfic. But as fringe as it may be, this theory is dangerous. And it's now up in front of the Supreme Court. Hi, Andrew. Thank you so much for being here. Yeah, yeah, of course. I'm really excited to talk to you about independent state legislature theory. Yeah, that's what they all say.

1:46.0

I just keep hearing.

1:47.0

A sentence that's never before been uttered.

...

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