Hello, and Happy Thursday,
On the final day of what may have been its most consequential term ever, the US supreme court announced it would hear a bombshell case when it reconvenes.
The case, Moore v Harper, involves a dispute over North Carolina’s congressional districts. At the heart of the case is what has come to be known as the independent state legislature theory (ISL) – the idea that state legislatures cannot be checked by state supreme courts when it comes to setting rules for federal elections, even if the legislature’s actions violate the state’s constitution. It’s an idea that three justices – William Rehnquist, Clarence Thomas and Antonin Scalia – mused about in Bush v Gore, but has gained little traction since. The decision to hear the case immediately raised serious alarm from experts, who say the idea is anti-democratic and is antithetical to federalism and the separation of powers at the heart of American government.
I spoke with Vikram Amar, the dean of the college of law at the University of Illinois, who has studied the idea extensively. We spoke about the history of the idea and the implications if the supreme court endorses it. Our conversation has been condensed and edited for clarity.
What is the independent state legislature theory?
It’s the idea that the federal constitution essentially empowers one organ of state government over all others. And that is the elected legislature.
Ordinarily, we think of federal governments versus state governments. Some powers are federal and some powers are state. But this is an idea that within the state government, the federal constitution somehow specifies which branch of state government should be calling the shots.
If it’s the legislature, that means in theory the governor has no role. The courts have no role. The people acting directly through direct democracy referenda and initiative, they would have no role. And perhaps most importantly, the courts have no role in enforcing the state constitution.
It’s the state legislature kind of liberated from all the other checks and balances that we would ordinarily find within state government.
And we’re talking specifically about matters of election law
Federal elections. Everyone agrees the state constitutions and state courts limit the state legislature when it comes to state elections.
What would the implications be if the supreme court were to endorse this idea?
There’s lots of different answers to that depending on how wholeheartedly the court embraces it. I’m of the view that once you accept its premise, it’s hard to deny its broad implications.
One implication is not that a state legislature could pick whatever state of electors it wants after December in January. In other words, the whole John Eastman idea that it’s always up to the state legislature to do whatever they want in picking presidential electors. That’s ISL on steroids.
Regardless of what you think of the word legislature, the constitution in Article II clearly, directly gives Congress and the federal government the power to specify the time that electors are chosen for presidential elections. And so Congress has specified election day.
Putting aside that temporal question though, if a state legislature today were to announce that in 2024, it’s going to pick the electors without regard to what the voters want – it says ‘well we’ll take into account the voters’ views,’ but at midnight on election day, we’re gonna have a session without the governor and without anybody else and we’re gonna pick who we think should be the electors of this state. That would have to be respected, even if, as it’s true in some state constitutions, the state constitution explicitly says that the people shall pick presidential electors, and nobody else.
Another one would be if today, before the election, a legislature announced, without input from the governor or anybody else, if there is a dispute about who actually won the election in 2024, and who was actually selected as the electors, instead of having courts decide who won, we will decide who won. And that would have to be respected, even if the state constitution says, as does for example Pennsylvania’s, that all election disputes shall be resolved in courts of law.
More mundanely, it would mean things like if a state constitution allows ex felons to vote, and the legislature decides that’s a bad idea, then the legislature can disregard that, and we’d have to respect that.
Or if the voters decide that congressional districting is better done by an independent redistricting commission, as was true in Arizona, and upheld by the supreme court in 2015, and the legislature said ‘no we want to do it ourselves,’ we’d have to respect that.
And what would the implications be for partisan gerrymandering?
To the extent that the people of the states have tried to deal with the problem of partisan gerrymandering, those efforts would be all for naught, because it would be up to the fox, namely the state legislature, to guard the henhouse. That is their own partisan instincts.
Would there be any check left on state legislatures?
Only the voters when they want to vote out the rascals, the bums. But again, they’d be doing so in districts that are so gerrymandered that it’s hard to do.
If the court does endorse this theory, what kinds of things might we start seeing from legislatures?
You’re going to see things like we talked about, the Arizona proposal to make the legislature the court. You may see more aggressive regulation of voter eligibility and voter ID laws. There’s always the federal backdrop. No one says ISL allows the state legislature to violate federal constitution or federal statutory rights. But to the extent that state constitutions go beyond federal constitutions in recognizing the right to vote. Then you’re going to see state legislatures pull back on that in those states whose supreme courts have been more protective of voting rights.
What are the origins of this idea?
My guess is that the justices, especially Scalia, Thomas and chief justice Rehnquest, they were very skeptical of the Florida supreme court [in Bush v Gore]. They thought the Florida supreme court was up to no good. This was a textual thing, it was a hook, for them to hang their skepticism on.
As is true in Sebelius, the Obamacare case, this is really a theory that is come up with after to justify a kind of instinctual result of what should be the right outcome.
But here’s a unifying theme between invocation of ISL in 2020 and in 2000. It always was invoked in the context of the shadow docket – where there’s an emergency request in front of the court. There’s not full briefing. There’s no resort to scholarship. There’s no time, there’s no deliberation. So this is an idea, as Akhil and I say in our piece, it seems plausible on the surface, but it’s preposterous when you think about it.
It’s going to be really hard for those guys to write an opinion. It’s one thing for those guys to shoot their mouth off in a shadow docket separate writing. It’s another thing to write a majority opinion that deals with all the stuff that we’re writing about. Which is why I remain optimistic that there won’t be five justices to embrace this theory.
The one detour along the way was a 2015 case, from Arizona in which the supreme court considered an ISL argument – whether the citizens of Arizona could strip the legislature of its redistricting power through the constitutional amendment process. The court ruled 5-4 against the legislature.
It flatly rejected ISL.
It’s not just in 2015, a majority of the court, including Justice Kennedy, repudiated ISL. Roberts who dissented himself and embraced the result in the Arizona case, three years later in the Common Cause v Rucho, the partisan gerrymandering case, where he cited approvingly to initiatives in Colorado and Michigan, that were in all respects identical to Arizona’s. Indeed, he cited to a Florida state supreme court case that was remarkably similar to the North Carolina supreme court case here.
You and your brother have studied this idea and you’ve written about how the history shows that this understanding of the language of the constitution of elections clause is bogus. Could you walk me through a little bit through that?
There are several originalist arguments that really devastate ISL.
Legislature is not a term that can be understood apart from the state constitutions that create the legislature. What the ISL folks want to say is that legislature means legislature, not court, not executive branch. They stop halfway short. Legislature means a body created to represent the people.
At the founding, state constitutions preceded the federal constitution. Every state constitution was based on the notion that the people have the power and they create the government, they create the state legislature, which is accountable to the people. And has only those powers and is subject to whatever limitations that the constitution sets up. The idea that the legislature can be freed of limitations, checks and balances, that were created in the very constitution that created the legislature, it’s just oxymoronic.
The actions of the state legislatures and the state peoples, both right before and right after the constitution, that’s normally what we look at to determine the meaning of contested terms. That contradicts ISL.
Indeed, ISL proponents have pointed to nobody at the founding who said legislature means “ISL.” Not a one.
The idea that the federal courts can oversee the state courts for being too creative or freeform. No, that’s why we have states. If the states don’t like what the state supreme court is doing, they can change. That’s federalism.
Not only is ISL not consistent with federalism. It turns federalism on its head. Federalism is all about allowing each state to structure its internal governmental operations however it wants.
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