Independent State Legislature Theory
|
|
 |
| Select a state from the menu below to learn more about its election administration. |
Independent State Legislature theory or doctrine (ISL) states that the U.S. Constitution gives state legislatures the authority to regulate federal elections. Since this power comes directly from the U.S. Constitution – and not state constitutions – state judges, governors, secretaries of state, and other state officials cannot intervene to change federal election rules established by state legislatures, according to the theory. Under the Constitution, checks on state legislatures’ power to regulate federal elections come from federal courts and the U.S. Congress.[1][2]
Florida State University College of Law professor Michael Morley, a proponent of ISL, wrote, "The U.S. Constitution grants authority to both regulate congressional elections and determine the manner in which a state chooses its presidential electors specifically to the legislature of each state, rather than to the state as an entity. The independent state legislature doctrine teaches that, because a legislature derives its power over federal elections directly from the Constitution in this manner, that authority differs in certain important respects from the legislature’s general police powers that it exercises under the state constitution."[1][3]
Vikram David Amar, a University of Illinois law professor, and Akhil Reed Amar, a Yale University law professor, who oppose ISL, wrote, "The theory invokes constitutional provisions designed to protect states against federal interference (including interference from federal courts) and instead uses these provisions to disrespect both the wishes of the state peoples who create, empower, and limit their legislatures, and the wishes of the elected legislatures themselves. The theory gives near carte blanche to federal judges, when the key point of Article II’s election language (and the companion language of Article I) was to empower states."[2]
Background
The independent state legislature theory (ISL) first appeared in 19th century case law but then laid dormant for decades.[4] Chief Justice William Rehnquist (joined by Justices Antonin Scalia and Clarence Thomas) resurrected it in his concurring opinion in Bush v. Gore. Rhenquist said the state courts acted outside their constitutional authority when ordering a recount in the election because the recount conflicted with the election deadlines set by the state legislature.[5]
In 2020, a number of states changed election dates and procedures in response to the COVID-19 pandemic. Several parties filed lawsuits asking federal courts to intervene and prevent these changes from taking effect.[6][7][8]
Pennsylvania legislators asked the Court to hear their challenge to a Pennsylvania Supreme Court ruling extending the time for state election officials to accept mail-in ballots by three days in the 2020 election. Dissenting from an order denying the legislators’ request for the Supreme Court to hear the case, Justice Samuel Alito (joined by Justices Clarence Thomas and Neil Gorsuch) wrote that the Pennsylvania Supreme Court’s actions were unconstitutional in Republican Party of Pennsylvania v. Boochvar.[6]
In response to a request from Wisconsin voters to reinstate a district judge’s order to extend the absentee ballot deadline, Justices Brett Kavanaugh and Samuel Alito wrote, "The elections clauses are not some judge-made 'doctrine'; their exclusive delegation to state legislatures is right there in the constitutional text."[8]
In another Pennsylvania case, in which election officials allowed three extra days for accepting absentee ballots, Justice Thomas, dissenting from the Court’s decision to not take the case wrote that "For more than a century, this Court has recognized that the Constitution 'operat[es] as a limitation upon the State in respect of any attempt to circumscribe the legislative power' to regulate federal elections."[7]
On June 27, 2023, the United States Supreme Court affirmed the North Carolina Supreme Court's original decision in Moore v. Harper that the state's congressional district map violated state law. In the case, North Carolina’s state legislators argued that the North Carolina Supreme Court improperly blocked the state’s 2022 electoral map, which was enacted by the state legislature. The legislators argued that state courts do not have the authority to regulate elections under the U.S. Constitution; only state legislatures do.[9] In its 6-3 decision, Chief Justice John Roberts wrote:
| “ | The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections...When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review. The precedents of this Court have long rejected the view that legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution. The argument to the contrary does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life. Thus, when a state legislature carries out its federal constitutional power to prescribe rules regulating federal elections, it acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the state legislature’s exercise of power. |
” |
Original understanding of ISL
Scholars, constitutional lawyers, and advocates for and against ISL disagree about the interpretation of the Electors and Elections Clauses in the constitution within the theory.
The Elections Clause, Article I, Section 4, Clause 1 reads as follows:
"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 Senators."
The Electors Clause, Article II, Section 1, Clause 2 reads as follows:
"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."
Arguments for original/textual basis for ISL
Supporters of ISL say that the text of the Elections and Electors Clauses in the U.S. Constitution plainly and clearly delegate the power to regulate federal elections to state legislatures subject only to checks and regulations enacted by the U.S. Congress. It is not a power reserved to the States more generally. In fact, had it not been for this express delegation to the state legislatures, no state entity would have the power to regulate congressional elections.[12]
According to an amicus brief submitted by the group Restoring Integrity and Trust in Elections (RITE) in support of the petitioners in Moore v. Harper, the term legislature is commonly understood to mean a body of elected representatives that has the power to make laws. It does not include other parts of state government, like courts or executive officials. The only other entity expressly delegated the power to regulate federal elections was another legislative body – the U.S. Congress. Supporters of ISL say the framers envisioned the regulation of federal elections as a legislative activity prescribing the power first to state legislatures and, as a back up, to the U.S. Congress.[12]
According to RITE, the Constitution demonstrates that the framers knew how to, and did, intentionally delegate certain powers to state legislatures, as separate entities, and not as entities of the people more generally. There are many other provisions in the Constitution that require the state legislature, as an entity, to carry out various duties (U.S. Const. art. I, Sec. 3, cl. 1; amend. XVII, Sec. 8, cl. 17; art. II, Sec. 1, cl. 2; art. IV, Sec. 3, cl. 1; amend. XVIII, Sec. 3 (repealed); amend. XX, Sec. 2). There also are many provisions in the Constitution that distinguish between the state legislature as an entity and the people or the state generally (U.S. Const. art. I, Sec. 2, cl.1; Sec., 3, cl. 2, art. IV, Sec. 1; art. V; art. VI, cl. 3; amend. XIV, Sec. 2.). Citing Hawke v. Smith, the brief submitted by RITE states, "There can be no question that the framers of the Constitution clearly understood and carefully used the terms in which that instrument referred to the action of the Legislatures of the states."[12]
According to law professors Saikrishna Bangalore and John Yoo, "The Constitution affords states some flexibility in their institutional arrangements. In particular, when the Constitution vests powers and responsibilities with the 'State.'" But, the Constitution specifies that only certain entities within the state can exercise certain powers. For example, state legislatures can call for a constitutional convention to ratify proposed amendments, consent to how the state is divided, and decide how presidential electors will be selected. State executives have the power to issue writs of election when there is a vacancy in the House, and the Supremacy Clause requires state judges to enforce federal law over state law, according to scholars supporting ISL.[13]
Supporters also point to founding-era documents for the plain meaning of legislatures in the Elections Clause. Letters From a Federal Farmer (published during the ratification debates) and Chancellor Kent’s Commentaries on American Law defined it to mean institutional state legislatures. Cooley’s 1890 treatise viewed the Election Clause's specific reference to state legislatures as an exclusive grant of authority.[12]
In an article using an intratextual analysis of the Constitution to defend ISL, Morley wrote that "every state constitution from the Founding Era that used the term legislature defined it as a distinct multimember entity comprised of representatives with the authority to enact laws."[14]
Arguments against original/textual basis
Law professors Akhil and Amar, who argued that there is no textual basis for ISL, acknowledged that Articles I and II of the U.S. Constitution "create powers and duties on the part of the 'legislature,'" but they explained that legislature can, and does, have two meanings under the Constitution – a multi-representative lawmaking body and part of the states' law-making system. State legislatures were created to represent the people, but they were also entities "created and constrained by the state constitution." For example, if a state constitution allows for a governor to veto legislation, the governor has similar power over federal election laws, according to those rejecting the theory.[15]
According to Amar and Amar, the American people created state constitutions and, as a result, state constitutions were understood as supreme over state legislatures. "Since the Revolution, every state legislature has been defined and circumscribed, both procedurally (e.g., What counts as a quorum? Is the governor involved in legislation?) and substantively (e.g., What rights must the legislature respect?) by its state constitution, which in turn emanates from the people of each state," according to Amar and Amar.[2]
Opponents also point to founding documents. Hayward Smith, for example, argued that legislature, as used in the Electors and Elections Clauses, is similar to legislature as used in Article V of the Articles of Confederation. He argued that the use of the term should be seen in that light as "normal legislatures, subject to substantive regulation by state constitutions." Moreover, Smith wrote that the historical record shows that the American people understood legislatures to be subject to state constitutional limitations.[16]
According to Amar and Amar, "Six of the seven state constitutions that were adopted or revised in the Constitution’s earliest years of operation regulated the manner of federal elections and thereby cabined the independence of state legislature." They wrote that supporters cannot point to a state legislature declaring its independence and acting outside the bounds of its constitution.[17]
Supreme Court precedent supporting ISL
Scholars supporting and opposing the independent state legislature (ISL) theory often cite Chief Justice Rehnquist’s concurrence in Bush v. Gore as the origination of the ISL. In that concurrence, Chief Justice Rehnquist, joined by Justices Scalia and Thomas, references the constitutional duty of state legislatures to appoint electors as one of the "few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government."[5]
The doctrine was previewed by the U.S. Supreme Court over one hundred years earlier. In McPherson v. Blacker, the Supreme Court resolved a dispute between Congress and the Michigan state legislature regarding which entity had the power to decide when the Electoral College met in Michigan. The Court ruled that Congress had the power to decide. Within the opinion, the Court discussed the state legislature’s power under Article II, stating:[4]
| “ | The clause under consideration does not read that the people or the citizens shall appoint, but that ‘each state shall,’ and if the words ‘in such manner as the legislature thereof may direct’ had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the state in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.[11] | ” |
McPherson was integral to the Court’s decision in Bush v. Palm Beach County. The justices cited McPherson for the proposition that the state legislatures derive their authority over federal elections not through the people of the state but through "a direct grant of authority under Article II of the Constitution itself."[18]
Further, early precedential support for the doctrine came through cases exploring elements of it. For example, the term legislature is critical, and supporters cite Hawke v. Smith, in which the Supreme Court ruled that state legislatures, not the people of the state, could ratify amendments to the Constitution. The Court held legislature had a certain meaning when incorporated into the U.S. Constitution – "the representative body which made the laws of the people."[19]
In the debate regarding whether state constitutions could limit state legislatures in the regulation of federal elections, Cook v. Gralike found that "because congressional offices 'aris[e] from the Constitution itself,' it is the federal Constitution, not a state constitution, that gives the state legislature the power to regulate congressional elections." Similarly, with federal offices, any "state authority to regulate election to those offices … had to be delegated to, rather than reserved by the States."[12]
Supreme Court precedent against ISL
Early twentieth century cases showed the Supreme Court’s willingness to permit the regulation of federal elections by non-legislative officials. In 1912, Ohio began permitting voters to use the referendum process to overturn laws passed by the state legislature. In Ohio ex rel. Davis v. Hildebrant, the Supreme Court upheld this process as it related to congressional districts drawn by the state legislature.[20] In Smiley v. Holm, the Supreme Court upheld the Minnesota governor’s veto over a congressional redistricting proposal passed by the state’s legislature. The Court found that a state constitution that provides for a gubernatorial veto as a check in the legislative process required the state legislature to enact a redistricting plan that would be subject to a gubernatorial veto.[21]
In 2019, the Supreme Court, in Rucho v. Common Cause, held that "partisan gerrymandering claims present political questions beyond the reach of the federal courts." The Court then endorsed the idea that state courts could curb gerrymandering and cited examples of state courts striking down congressional districting plans that violated the state’s constitution. "State statutes and state constitutions can provide standards and guidance for state courts to apply."[22]
In Arizona State Legislature v. Arizona Independent Redistricting Commission, by a vote of 5-4, the Supreme Court affirmed the people of Arizona’s right to take the authority for redrawing districts away from the state legislature and give it to an independent commission. The Court said, "Nothing in the [Elections] Clause instructs … that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provision of the State’s constitution." Chief Justice Roberts’ dissent, which was joined by Justices Scalia, Thomas, and Alito, states that Arizona was the second state to ratify the 17th Amendment, which modified Article I, Section 3 to allow voters to cast direct votes for U.S. senators. Roberts wrote, "Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from 'the Legislature' of each State, Art., I, §3, to 'the people thereof.' The Amendment resulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States. What chumps! Didn’t they realize that all they had to do was interpret the constitutional term 'the Legislature' to mean 'the people'? The Court today performs just such a magic trick with the Elections Clause."[23]
Opponents of ISL
On July 28, 2022, the Committee on House Administration in the U.S. House of Representatives held a hearing entitled, "The Independent State Legislature Theory and Its Potential to Disrupt Our Democracy." Opponents of ISL outlined several negative consequences for American elections if the Supreme Court adopts the theory as it considered Moore v. Harper.
Eliza Sweren-Becker of the Brennan Center for Justice said that ISL would: (1) prevent state constitutions, courts, and executive officials from holding state legislatures accountable and guarding against partisan gerrymandering and voter suppression; (2) eliminate voting guarantees in state constitutions, including the right to vote, access to absentee or mail voting; and (3) override state-based voting reforms. [24]
On October 31, 2022, the Bipartisan Policy Center published a report entitled, "Independent State Legislature Theory Undermines Elections Principles." The paper outlined the following three principles it considered essential for U.S. election administration and how the ISL would upset them:[25]
| “ |
Principle 1: State legislatures cannot move quickly enough to establish statutes, regulations, or guidance for elections in the heat of election cycles when legislatures are out of session. |
” |
Supporters of ISL
In a September 29, 2022, posting on the Election Law Blog, Richard Pildes wrote that opponents of ISL overstate what it would do if approved by the Court. In his review of a brief filed by the Republican National Committee (RNC) in Moore v. Harper, Pildes pointed to the following constraints on state legislatures that would remain if the Court rules in favor of the petitioners in Moore v. Harper, as articulated by the RNC:[26]
| “ |
1.) The ISLT would not permit state legislatures to ignore the popular vote in the presidential election and appoint electors after Election Day. 2.) State legislatures, like any other state actor, are bound by the due process and equal protection doctrines that apply in the election context. 3.) Among other things, this means that state legislatures cannot treat votes unequally or arbitrarily. The brief cites Bush v. Gore, as we do, among other cases for this principle. Thus, as the RNC says, legislatures cannot choose “to implement unequal standards for evaluating votes cast; to include only part of the valid votes cast; or to set aside the votes altogether …”. 4.) In addition, the RNC also acknowledges that due process and EP principles deny a state legislature the power to retroactively change the rules — either formally or in practice — under which votes have been cast: “To allow a state legislature to retroactively change the results of a valid federal election implicate similar issues of fundamental fairness that would trigger the protections enshrined in the Fourteenth Amendment.” I’ve explored these prohibitions in my article, Judging New Law in Election Disputes.[11] |
” |
Supporters, like Morely and the Honest Elections Project, argued that ISL ensures that the primary responsibility for elections resides with the state legislators, who are democratically accountable to the people, rather than a governor or other state official, who may be subject to the influence of the person being elected.[1]
America’s Future, Inc., a nonprofit whose stated goal is to fight to preserve American values and ideals and protect the nation’s Constitutional Republic, also argued that by adopting ISL, the Supreme Court would give certainty in elections and decrease the amount of litigation that is designed to game election results. America’s Future, Inc. pointed to over two dozen lawsuits that occurred before Election Day and sought to overturn settled election laws passed by democratically elected state legislatures.[27]
See also
External links
- Search Google News for this topic
- U.S. Supreme Court docket file - Moore v. Harper (petitions, motions, briefs, opinions, and attorneys)
- SCOTUSblog case file for Moore v. Harper
Footnotes
- ↑ 1.0 1.1 1.2 Fordham Law Review, "Independent state legislature doctrine," accessed November 2022
- ↑ 2.0 2.1 2.2 AkhilAmar.com, "Eradicating Bush-league Arguments Root And Branch: The Article II Independent-state-legislature Notion And Related Rubbish," accessed November 2022
- ↑ AkhilAmar.com, "Eradicating Bush-league Arguments Root And Branch: The Article II Independent-state-legislature Notion And Related Rubbish," accessed November 2022
- ↑ 4.0 4.1 United States Supreme Court, McPherson v. Blacker, Decided October 17, 1892
- ↑ 5.0 5.1 Bush v. Gore, Decided December 12, 2000
- ↑ 6.0 6.1 United States Supreme Court, Republican Party of Pennsylvania v. Boochvar, Denied October 19, 2020
- ↑ 7.0 7.1 United States Supreme Court, Republican Party of Pa. v. Degraffenreid, Decided February 22, 2021
- ↑ 8.0 8.1 United States Supreme Court, Democratic National Committee v. Wisconsin State Legislature, Decided October 26, 2020
- ↑ SCOTUSBlog, "Justices will hear case that tests power of state legislatures to set rules for federal elections," June 30, 2022
- ↑ U.S. Supreme Court, “Moore, in his Official Capacity as Speaker of The North Carolina House of Representatives, et al. v. Harper et al.," "Certiorari to the Supreme Court of North Carolina,” accessed June 16, 2023
- ↑ 11.0 11.1 11.2 11.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ 12.0 12.1 12.2 12.3 12.4 SupremeCourt.gov, "Brief for Amicus Curiae Restoring Integrity and Trust in Elections, Inc. In Support of Petitioners," September 2, 2022
- ↑ Harvard Journal of Law & Public Policy, "People ≠ Legislature," April 2016
- ↑ Florida State University College of Law Scholarship Repository, "The Intratextual Independent 'Legislature' and the Elections Clause," 2015
- ↑ Brennan Center for Justice, "The 'Independent State Legislature Theory,' Explained," June 30, 2022
- ↑ "Revisiting the History of the Independent State Legislature Doctrine," St. Mary’s Law Journal. 53. 2002 Forthcoming
- ↑ SupremeCourt.gov, "Brief of Amici Curiae Professors Akhil Reed Amar, Vikram David Amar and Steven Gow Calabresi in Support of Respondents in Moore v. Harper," October 24, 2022
- ↑ Supreme Court of Florida, Bush v. Palm Beach County Canvassing Board, Decided December 4, 2000
- ↑ United States Supreme Court, Hawke v. Smith, Decided June 1, 1920
- ↑ United States Supreme Court, Ohio ex rel. Davis v. Hildebrant, Decided June 12, 1916
- ↑ United States Supreme Court, Smiley v. Holm, Decided April 11, 1932
- ↑ Supreme Court of the United States, Rucho v. Common Cause and Lamone v. Benisek, Decided June 27, 2019
- ↑ United States Supreme Court, Arizona State Legislature v. Arizona Independent Redistricting Commission, Decided June 29, 2015
- ↑ Brennan Center for Justice, "How the 'Independent State Legislature Theory' Might Change Our Elections," November 2, 2022
- ↑ Bipartisan Policy Center, "Independent State Legislature Theory Undermines Elections Principles," October 31, 2022
- ↑ Election Law Blog, "What the Independent State Legislature Theory Would Not Do," September 28, 2022
- ↑ SupremeCourt.gov, "Brief Amicus Curiae of America’s Future, Inc. in Support of Petitioners," September 6, 2022
| |||||||||||
