SCOTUS Must Act on ‘Independent State Legislature’ Theory

TAlthough the just concluded Supreme Court term was significant, it could prove to be even more crucial. On Thursday, the very last day of this term, the Court granted review in the most potentially significant case they’ll hear, one arising from a Congressional districting dispute—but with impacts far beyond its specifics.

Moore v. Harper, Republican loyalists challenge the decision of the North Carolina Supreme Court to invalidate (and replace) congressional district lines drawn by the state’s Republican-controlled legislature, after that court found that the legislature violated the state constitution’s prohibitions on excessive partisanship in district-line-drawing. Because partisan gerrymandering of U.S. House of Representatives itself is a major issue, the case by itself is significant. But the case is much more important still because of the so-called “Independent-State-Legislature” (ISL) theory, which the Republicans are using to challenge the North Carolina Supreme Court’s actions. The Justices could use the ISL idea to undermine 2024 elections if they accept it.

ISL Theory, the current resurrection of which stems primarily out of the thoughts of three concording Justices in (in)famous Bush v. GoreThe 2000 ruling posits the U.S. Constitution is a reference to state legislatures for the regulation and conduct of presidential (in Article I), and congressional (in Article II) elections. Therefore, these legislatures can be exempted from the enforcement by the states of constitutional limits in federal elections.

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Trump supporters like John Eastman, among others, invoked a supercharged ISL version in order to claim that even after the presidential election, the state legislature could choose to appoint any slate of presidential electors it prefers. The theory that the Vice President can unilaterally decide which slate of electors to credit is nearly as absurd as Eastman’s. Article II clearly gives federal government power to make such decisions. WhenThe states electors are chosen. Congress is empowered to set National Election Day, when all the states can pick their voters. However, the identities of these electors will need to wait until the results of the election. Any state or federal official may not change the elector-selection process after Election Day.

But even the less extreme version of ISL being pressed in court—under which state legislatures have plenary power to do what they want, so long as they stake out 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 will pick presidential electors itself without regard to what the state voters desire, even if the state constitution provides that electors shall be chosen by the people, there is nothing any other organ of state government—the Governor; the courts, as in the North Carolina case; the people themselves—can do about that. Or if a state legislature announces today that it—rather than election officials or courts—shall adjudicate any post-election disputes over who actually won, such an arrogation of power would have to be respected, even if it flatly contradicted a state constitutional provision requiring administrative or judicial review of such election disputes.

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ISL theory can be as dangerously wrongheaded and treacherous as it is foolish. True, Articles I and II of the U.S Constitution do refer to “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 the Legislature therof may direct” a slate of presidential electors. ISL’s claims are untrue if you look carefully at the Constitution. For example, the text of Article II (the presidential-election context at issue in Bush v. Gore) empowers “states,” not state “legislatures,” and adds merely that legislatures “may”—not that they “must” or “shall”—be involved in setting presidential selection rules. More generally, the term “legislature” of a “state” (in both Article I and Article II) simply cannot be understood without reference to the state constitution that creates, defines, and limits such legislature. Certainly to the founding generation, it was well accepted that a state “legislature” was an entity created and constrained by its state constitution.

ISL views are strongly rejected in the context of early practice before and immediately after the Constitution was adopted. All told, more than half of the 11 states that ratified the Constitution in 1787–88 had state constitutions that expressly regulated state legislatures in the context of federal elections in the 1780s and early 1790s. These states all acted contrary to ISL theory. ISL Theorists, however, have not identified any evidence consistent with ISL theories from the other states. This suggests that the constitution-makers did not affirmatively embrace ISL ideas.

Just as the founding generation’s actions repudiate ISL, so too does a string of unbroken decisions by the Supreme Court from the early 1900s to the present. This Court has upheld state constitutions that allow voters to participate (via referendums) as well as governors in the drawing of congressional districts. And in a seminal 2015 ruling, on which the Court—including all the conservative Justices at the time—doubled down in 2019, the Justices explicitly permitted Arizona’s congressional-districting duty to be taken away altogether from the elected state legislature and be vested instead in an independent commission. It is difficult to imagine how the judicial enforcement on lesser-state-constitutional limitations could cause problems if an elected legislature of a state can be stripped of its congressional districting powers under a state constitution.

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ISL Backers oppose all of this and only have the observation of three Justices from the discredited or hyper-partisan Bush v. GoreViews from 2000. (I mention “hyper-partisan” here because it is no coincidence that ISL is being pressed today by Republicans, even though Democrats are of course not above partisan gerrymering themselves. For various 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 the results of districting and the will of the majority of voters in the state—while none with Democratic legislatures were carried by Donald Trump.)

I remain hopeful that even conservative members of today’s Court will see ISL for the intellectual sham it is. Chief Justice Roberts’ writings in 2020 seem to suggest he gets it. And Justice Kavanaugh too has signaled he’s not necessarily all in on ISL. Certainly if the Court in last month’s abortion and gun cases (Dobbs and Bruen) was serious—and wants to be taken seriously—when the conservative and originalist majority said the Court must attend to constitutional text, history, and precedent to avoid adopting “egregiously wrong” constitutional interpretations, ISL should be buried once and for all. But if the Court does not follow the methodological principles it says it is committed to—and misses this opportunity to put misbegotten ISL notions to rest—the 2024 election could make 2020’s look like a picnic.

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