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Independent state legislature theory
From Wikipedia, the free encyclopedia

The Constitution of the United States delegates authority to regulate federal elections within a state to that state's "legislature". Traditionally, this has been interpreted to refer to "the legislative process used in [a] state, determined by that state's own constitution and laws."[1] Advocates of the independent state legislature theory or independent state legislature doctrine (ISL) interpret this as limiting such authority to the state's elected lawmakers, while the state's executive branch, judiciary, or other bodies with legislative power (such as constitutional conventions or independent commissions) have no powers of electoral oversight.[2] Accordingly, in the event of a conflict between congressional election regulations enacted by a state's legislature and those derived from other sources of state law, that conflict must be resolved in favor of the state legislature's enactments, even over state constitutional provisions, and similarly over ballot initiatives which effectively modify a state constitution.[3] Proponents of ISL further claim that adjudicating such purported conflicts is the province of the federal judiciary of the United States.[3]

ISL theory has particular relevance in the context of congressional redistricting, the process whereby each state adopts new congressional districts every ten years using updated census data.[4] Under the ISL theory, a state legislature's plans for new congressional districts are not overridable by a state supreme court's interpretations of its state's own constitution, including any provisions limiting partisan gerrymandering found therein.[5] State legislatures' power to draw congressional districts is not limited by independent commissions authorized by public referenda or initiatives. The doctrine also implies that state court rulings invalidating or reworking voting regulations in presidential elections are unconstitutional, an argument advanced in litigation surrounding the 2020 U.S. presidential election.[6]

As a theory of constitutional interpretation, ISL is both defended and criticized on originalist grounds, with proponents and opponents marshaling conflicting sets of textual, historical, and structural evidence.[2][4] While the Supreme Court of the United States has rejected ISL by majority opinion as recently as 2015, four current Supreme Court justices have voiced interest in adopting some version of the doctrine.[7][8] At the end of its June 2022 term, the Supreme Court agreed to hear a case on the question, Moore v. Harper, in the following term.[9][10][11]



Textual basis
The primary textual basis for ISL in the U.S. Constitution derives from Article I, Section 4, Clause 1 (The Elections Clause):

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.[12] [emphasis added]

Proponents[2] of ISL derive additional textual support from the Presidential Electors Clause's mention of state legislatures in Article II, Section 1, Clause 2:[13]

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.[14] [emphasis added]

The phrase, "the Legislature thereof" in both the Electors Clause and the Elections Clause is interpreted under ISL to refer specifically to a state's elected representative body, not other parts of the state government.[15]

Interpretation of the theory
No majority ruling of the U.S. Supreme Court has explicitly relied on ISL to determine the outcome of a case, and the Court has expressly rejected the doctrine at least once in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015).[3][16] ISL has been advanced or adopted at various points in American legal history at both the state and federal levels. More recently, ISL has been expressly invoked to an unprecedented degree in legal challenges to the results of the 2020 U.S. presidential election, and Justices Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh have each expressed varying levels of interest in adopting some version of ISL.[8][17]

19th century
During the Massachusetts Constitutional Convention of 1820–1821, James T. Austin proposed including a provision in the Massachusetts Constitution that would limit the power of the Massachusetts legislature to redraw new congressional districts every two years.[5] This proposal was rejected by other convention delegates as in violation of the Elections Clause of the U.S. Constitution, with delegate Justice Joseph Story arguing that such an amendment would amount to the Convention "assuming a control over the Legislature which the constitution of the United States does not justify."[5]

In 1873, the Supreme Court of Mississippi ruled that a provision of the Mississippi Constitution requiring all general elections to be held biannually did not limit Mississippi's legislature's discretion to set the timing of congressional elections under the Elections Clause.[5]:;44–45;

The Supreme Court of the United States indicated some approval for ISL in dicta from its 1892 ruling in McPherson v. Blacker.[18] In that case, the Court assessed the constitutionality of a Michigan law regulating the selection of presidential electors. In upholding the law, the Court quoted approvingly from an 1874 Senate committee report containing language recognizing the absolute power of state legislatures to appoint presidential electors. The committee report went on to say that such power "cannot be taken from them or modified by their State constitutions."[19] However, because the issue before the court in Blacker was whether the Michigan law was consistent with the federal constitution, the court made no direct holding addressing ISL.

20th century
Throughout most of the 20th century, both state courts and the Supreme Court of the United States largely ignored or rejected ISL.[5]:;9–10; For example, in 1916, the Supreme Court ruled in State of Ohio ex rel. Davis v. Hildebrant that an amendment to the Ohio Constitution allowing the public to reverse the state legislature's laws was constitutional, even when reversing the legislature's adoption of new congressional districts.[20] The Court did not invoke the Elections Clause or other ISL principles in its reasoning. In 1932 the Supreme Court ruled in Smiley v. Holm that the U.S. Constitution does not forbid a governor from vetoing a redistricting proposal passed by the state legislature.

The modern revival of interest in ISL at the Supreme Court stems from Bush v. Gore, specifically from a three-Justice concurring opinion in that case written by Chief Justice Rehnquist.[5]:;82; In agreeing with the majority's invalidation of the Florida Supreme Court's order of a statewide manual recount of ballots cast in the 2000 presidential election, the Chief Justice argued that the Court's holding was further supported by the fact that the Florida Supreme Court's ruling significantly departed from the statutory text of Florida's election code—a violation of the Elections Clause.[21]

Arizona State Legislature v. Arizona Independent Redistricting Commission
In 2015, the Supreme Court expressly rejected the ISL in a 5-4 ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission.[16] In that case, the Court considered the constitutionality of the authority granted to an independent commission to draw congressional districts for the state of Arizona.[22] The commission was created by initiative in which the Arizona electorate voted to amend the state constitution to remove the power of congressional redistricting from the state legislature.[22] The Arizona State Legislature filed suit, arguing that reassigning the power to draw congressional maps away from an elected state legislature violated the Elections Clause.[23] The Court rejected this argument. In a majority opinion written by Justice Ruth Ginsburg, the Court ruled that the Election's Clause language "the Legislature thereof" can refer either to the legislative authority of a state's representative body or a state citizenry's use of popular initiative (if consistent with the state's constitution).[24]

Chief Justice John Roberts dissented in the case, joined by Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.[25] The Chief Justice argued that the text, structure, and history of the Constitution required reading the Elections Clause as assigning the duty of regulating federal elections within a state specifically upon that state's elected represented bodies.[26] According to the Chief Justice, this interpretation is the only way to make structural sense of the necessity of the Seventeenth Amendment to the U.S. Constitution, which amended the Constitution to require elections of U.S. Senators "by the people" of each state, replacing the former language granting such power to "the Legislature" of each state. In rejecting the majority's reasoning, the Chief Justice commented ironically on the amendment's ratification efforts: "What chumps! Didn't they realize that all they had to do was interpret the constitutional term 'the Legislature' to mean 'the people'?".[26]

2020 presidential election and 2022 midterm elections
See also: Eastman memos and Pence Card
Since the 2020 United States presidential election, four conservative justices of the Supreme Court have indicated sympathy for ISL.[7][8]

In a federal case challenging Wisconsin's absentee voter laws, Justices Brett Kavanaugh and Neil Gorsuch voiced interest in adopting the doctrine. Specifically, Justice Kavanaugh wrote in favor of ISL as derived from the Presidential Electors Clause, writing "The text of Article II means that the clearly expressed intent of the legislature must prevail and that a state court may not depart from the state election code enacted by the legislature."[27] In another opinion in the same case, Justice Gorsuch (also joined by Justice Kavanaugh) argued that the Elections Clause "provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules."[28]

More recently, Justice Alito, joined by Justices Thomas and Gorsuch, dissented in a denial of an application for a stay of a ruling by the North Carolina Supreme Court.[7] The state supreme court's ruling invalidated the North Carolina Legislature's adoption of a congressional map for the 2022 U.S. midterm elections and ordered the implementation of a judicially created map. The dissent maintained that the North Carolina judiciary's actions were worthy of review by the Court, arguing that "[the Elections Clause's] language specifies a particular organ of a state government [for prescribing the rules for congressional elections], and we must take that language seriously."[29] The Court agreed to review the case during the 2022–2023 term as Moore v. Harper.[6]

Theory
Justifications
While all ISL proponents rely on the text and history of the Elections Clause and the Presidential Electors Clause, Professor Michael Morley has offered additional normative arguments in favor of ISL's grant of authority to state legislatures.[2] Morley argues:

ISL allows state legislatures greater flexibility in responding to local needs and exigencies where state constitutions would otherwise "shackle legislatures' discretion."
The ultimate responsibility for regulating elections should be in the hands of the political branches of government to ensure political accountability for the outcomes of elections.
ISL preserves the shared and symmetrical power to regulate federal elections between Congress and state legislatures, which was the original purpose of the Elections Clause. When state constitutions or state judiciaries usurp this regulative power, the authority of state legislatures over federal elections is reduced, and Congress's regulative power becomes asymmetrically enlarged.
ISL reduces confusion and conflict over the validity of state-run federal elections because other states and the federal government would not need to worry about the validity of a state legislature's actions under that state's constitution. Where a legislature's actions are not subject to override by a State Supreme Court, for example, it would be easier to be certain about the elections regulations that that legislature enacts.[5]:;32–37;
Criticism
ISL has come under criticism on originalist grounds for too narrowly interpreting the phrase "the Legislature thereof" in both the Elections Clause and the Presidential Electors Clause.[4] American legal scholar Vikram Amar argues that ISL construes the concept of the state legislature as implausibly isolated from other state institutions, including state constitutions: "[T]he meaning of state 'legislature' was well accepted and bore a clear public understanding at the Founding: A state 'legislature' was an entity created and constrained by its state constitution."[4] Amar argues further that constraints placed upon state legislatures' authority over elections by public referenda and initiatives are consistent with the Founding-era understanding of the role of state legislatures: "state legislatures were not independent sovereign entities; they were then, and state legislatures remain today, delegatees of the sovereign power of the people."[4]

Practically, it would mean that the general public (through ballot initiatives), governors (elected statewide and so not affected by district borders) and state courts would have no role in altering election laws or federal congressional boundaries, even if it violates the state constitution,[30][6] with the legislature "kind of liberated from all the other checks and balances that we would ordinarily find within state government."[30]

See also
Attempts to overturn the 2020 United States presidential election
Democratic backsliding in the United States
References
 Arizona State Legislature v. Arizona Independent Redistricting Commission
 Morley, Michael (November 2021). "The Independent State Legislature Doctrine". Fordham Law Review. 90: 502 – via Westlaw.
 Amar, Vikram David (March 2, 2022). "How ISL Theory Has Already (and Recently) Been Repudiated by the U.S. Supreme Court: Part Two in a Series". verdict.justia.com. Retrieved May 21, 2022.
 Amar, Vikram David (March 1, 2022). "The United States North Carolina Partisan Gerrymander Case and the Ahistorical "Independent State Legislature" (ISL) Theory: Part One in a Series". verdict.justia.com. Retrieved May 21, 2022.
 Morley, Michael (Fall 2020). "The Independent State Legislature Doctrine, Federal Elections, and State Constitutions". Georgia Law Review. 55: 40, 44, 45 – via Westlaw.
 Rakich, Nathaniel; Thomson-DeVeaux, Amelia (July 7, 2022). "How The Supreme Court Could Turbocharge Gerrymandering — Just In Time for 2024". FiveThirtyEight. Retrieved July 9, 2022.
 Amar, Vikram David (March 14, 2022). "Concluding Thoughts on the Invocation of the Independent-State-Legislature (ISL) Theory in the North Carolina Emergency Relief Application at the Supreme Court: Part Six in a Series". verdict.justia.com. Retrieved May 23, 2022.
 "How the "independent state legislature" doctrine could transform American elections". The Economist. March 23, 2022. Retrieved June 30, 2022.
 Doherty, Erin (June 30, 2022). "Supreme Court will hear case on states' power in federal elections". Axios. Retrieved July 7, 2022.
 Montellaro, Zach; Gerstein, Josh (June 30, 2022). "Supreme Court to hear case on GOP 'independent legislature' theory that could radically reshape elections". Politico. Retrieved July 7, 2022.
 Wolf, Thomas; Herenstein, Ethan (July 11, 2022). "The Case That Could Blow up American Election Law". The Atlantic. Retrieved July 12, 2022.
 "Article 1 Section 4 Clause 1". constitution.congress.gov. Constitution Annotated. Library of Congress. Retrieved May 21, 2022.
 Smith, Hayward H. (2002). "History of the Article II Independent State Legislature Doctrine". Fla. St. U. L. Rev. 29.
 "Article 2 Section 1 Clause 2". constitution.congress.gov. Constitution Annotated. Library of Congress. Retrieved May 21, 2022.
 Jeffrey Rosen (March 17, 2022). "What is the "Independent State Legislature Doctrine"?". We The People Podcast (Podcast). National Constitution Center. Retrieved July 7, 2022.
 Arizona State Legislature v. Arizona Indep. Redistricting Comm'n, 576 U.S. 787, 826, 135 S. Ct. 2652, 2678, 192 L. Ed. 2d 704 (2015)
 Amar, Vikram David (March 7, 2022). "Further Evaluation of the Arguments Raised in the Recent North Carolina Independent-State-Legislature (ISL) Application Filed in the U.S. Supreme Court: Part Four in a Series". verdict.justia.com. Retrieved May 21, 2022.
 McPherson v. Blacker, 146 U.S. 1, 13 S. Ct. 3, 36 L. Ed. 869 (1892)
 McPherson v. Blacker, 146 U.S. 1, 35, 13 S. Ct. 3, 10, 36 L. Ed. 869 (1892)
 State of Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 570, 36 S. Ct. 708, 710, 60 L. Ed. 1172 (1916)
 Bush v. Gore, 531 U.S. 98, 114, 121 S. Ct. 525, 534, 148 L. Ed. 2d 388 (2000)
 Arizona State Legislature, 576 U.S. at 787.
 Arizona State Legislature, 576 U.S. at 800.
 Arizona State Legislature, 576 U.S. at 819.
 Arizona State Legislature, 576 U.S. at 824.
 Arizona State Legislature, 576 U.S. at 825.
 Democratic Nat'l Comm. v. Wisconsin State Legislature, 141 S. Ct. 28, 34, 208 L. Ed. 2d 247 (2020) (internal quotations omitted)
 Democratic Nat'l Comm. v. Wisconsin State Legislature, 141 S. Ct. 28, 29, 208 L. Ed. 2d 247 (2020)
 Moore v. Harper, 142 S. Ct. 1089, 1090 (2022)
 Levine, Sam (July 7, 2022). "Could the US supreme court give state legislatures unchecked election powers?". The Gua