South Fairfax News

She thought her dissertation would lead to a PhD. Now it's informing U.S. law

Three decades ago, Rosemarie Zagarri never imagined her research on 18th-century electoral politics would become urgently relevant to the preservation of democracy in 21st-century America. 

Zagarri, University Professor in the Department of History and Art History in George Mason University’s College of Humanities and Social Sciences, researched state constitutions for her dissertation at Yale University and then published “The Politics of Size: Representation in the United States, 1776-1850” in 1987.

“I examined political representation during the era of the American Revolution, with a great deal of attention to the federal Constitutional Convention, congressional apportionment, the first federal election laws, and the role of state constitutions in the federal system,” Zagarri said. “Although this scholarship is now more than 30 years old, it has not been superseded by recent work.”

The Independent State Legislature Theory, or ISLT, originated in the Supreme Court case Bush v. Gore after the disputed 2000 election, when Chief Justice Williams Rehnquist wrote a concurring opinion that formed the seed of what would become the ISLT. The theory, if implemented, would overturn centuries of precedent and would free state legislatures from oversight by state courts, potentially enabling them to pass harsh voter suppression laws and extremely gerrymandered electoral maps.

The theory might also provide political cover for state legislatures to overturn the results of presidential elections.  

Former President Trump and his adherents tried to use the independent state legislature theory to challenge the results of the 2020 election. The Supreme Court declined the arguments of ISLT in 2020. However, in their dissents, Clarence Thomas, Samuel Alito, and Neil Gorsuch all endorsed it. 

Original source can be found here