SCOTUS Must Act on ‘Independent State Legislature’ Theory

Jhis term on the Supreme Court has been momentous, but the next could be just as important, if not more so. On Thursday, the very last day of this term, the Court granted review in the most potentially significant case it will hear, one that stems from a congressional constituency dispute, but with impacts far beyond its specificities.

In Moore v. Harper, Republican loyalists are challenging the North Carolina Supreme Court’s decision to invalidate (and replace) congressional district lines drawn by the state’s Republican-controlled legislature, after that court found that the legislature had violated the state constitution’s prohibitions on excessive partisanship in district line- drawing. The case is significant enough on its own, because the partisan gerrymandering of the United States House of Representatives is in itself a huge problem. But the case is even more important because of the so-called Independent-State-Legislature (ISL) theory, which Republicans are using to challenge the actions of the North Carolina Supreme Court. If passed by the judges, the notion of ISL could be used to seriously undermine the 2024 elections.

The ISL theory, whose modern resurrection emanates mainly from the reflections of three concurring judges in the (very) famous Bush versus Gore 2000 ruling, posits that because the United States Constitution refers to state legislatures in the regulation of congressional (in Article I) and presidential (in Article II) contests, those legislatures are free from the application by state courts of state constitutional limits when regulating federal elections.

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A supercharged version of the ISL is what Trump loyalists like John Eastman and others invoked in the run-up to January 6 of last year to suggest that even after a presidential election, a state legislature may decide to nominate any list of presidential electors the legislature prefers. This version of the theory is almost as absurd as the notion (also advanced by Eastman) that the vice president can unilaterally decide which voter should be credited; Section II of the Constitution clearly gives the federal government the power to prescribe when, but not how, state voters are to be chosen, and Congress has exercised this power by setting national election day as the time when all states choose their voters (even if the identity of those voters must await tabulation final election results). So any changes to the voter selection process by a state (or even federal officials) after Election Day are off limits.

But even the least extreme version of ISL pressed through the courts — under which state legislatures have plenary power to do whatever they want, as long as they claim their powers before Election Day — is incredibly dangerous.

For example, under ISL, if an elected state legislature were to announce today that in 2024 it would itself choose presidential voters regardless of what state voters want, even if the state constitution the state provides that voters must be chosen by the people, there is nothing any other organ of state government – the governor; the courts, as in the North Carolina case; people themselves can do about it. Or if a state legislature announces today that it – rather than election officials or the courts – will decide any post-election dispute over who actually won, such a grab for power should be respected, even if it flatly contradicts a constitutional provision of the state requiring administrative or judicial review of such electoral disputes.

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The ISL theory is as flawed as it is treacherous. It is true that Articles I and II of the United States Constitution refer to the “legislatures” of the states. Under Article I, Section 4, the “times, places, and manners” of holding congressional elections “shall be prescribed in each state by the legislature thereof.” And Article II says that “each state shall appoint, in such manner as its legislature may direct” a list of presidential electors. But a careful examination of the constitutional text shows the lie of the ISL. For example, the text of Article II (the context of the presidential election at issue in Bush versus Gore) empowers “states”, not state “legislatures”, and simply adds that legislatures “may” – not that they “must” or “shall” – be involved in setting the rules of presidential selection. More generally, the term “legislature” of a “state” (in both Article I and Article II) simply cannot be understood without reference to the constitution of the state which creates, defines and limits such a legislature. Certainly, for the founding generation, it was well accepted that a state “legislature” was an entity created and constrained by its state constitution.

The early practice just before and just after the adoption of the Constitution provides an additional and compelling reason to reject ISL ideas. In total, more than half of the 11 states that ratified the Constitution in 1787-1788 had state constitutions that expressly regulated state legislatures in the context of federal elections in the 1780s and early 1790s. All of these States have acted precisely contrary to the ISL theory. In contrast, ISL theorists have identified no strong, specific evidence from any of the remaining states indicating that those responsible for the constitution affirmatively embraced the ideas of the ISL.

Just as the actions of the founding generation repudiate ISL, so do an unbroken string of Supreme Court decisions from the early 1900s to the present day. The Court upheld, in the face of ISL arguments, the decisions of state constitutions to involve both voters (by referendum) and governors in shaping congressional constituencies. And in a landmark 2015 decision, which the Court – including all then-conservative justices – doubled down on in 2019, the justices explicitly allowed Arizona’s congressional district duty to be completely removed from the elected state legislature and to be invested in instead. an independent commission. If an elected state legislature can be stripped of all congressional constituency power under a state constitution, it is difficult to see how judicial enforcement of lesser state constitutional limits on legislatures could be problematic. .

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Against all this, ISL supporters have only the observations of three judges in the discredited and hyper partisan Bush versus Gore opinions of 2000. (I mention “hyper-partisan” here because it’s no coincidence that ISL is squeezed today by Republicans, even though Democrats are of course not above the partisan gerrymander themselves- For a variety of reasons, Republicans have an easier time succeeding at such gerrymandering in state legislatures; note that seven states that have Republican state legislatures went to Joe Biden in the 2020 election – suggesting a contrast between constituency results and the will of the majority of state voters – while neither with Democratic legislatures was carried by Donald Trump.)

I remain hopeful that even conservative members of the Court today will see the ISL for the intellectual sham that it is. Chief Justice Roberts’ 2020 writings seem to suggest he gets it. And Judge Kavanaugh also signaled that he didn’t necessarily agree with ISL entirely. Certainly, if the Court in the abortion and firearms cases last month (Dobbs and Brown) was serious – and wants to be taken seriously – when the conservative and originalist majority declared that the Court must concern itself with the constitutional text, history and precedents to avoid adopting “obviously erroneous” constitutional interpretations, ISL should be buried once and for all. But if the Court fails to follow the methodological principles it says it is committed to — and misses this opportunity to put an end to misguided notions of the ISL — the 2024 elections could make the 2020s look like a picnic.

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