State legislatures are, and always have been, creatures of state constitutions, bound by the terms of those constitutions and subject to the judgments of state courts.
This has important implications for the nature of state legislative power. The federal Constitution may give state legislatures the power to allocate electoral votes and regulate congressional elections, but that power is subject to the limits imposed by state constitutions.
Imagine what could happen if that were not the case. Imagine, instead, that state legislatures had plenary power over federal elections, which would allow them to overrule state courts, ignore a governor’s veto and even nullify an act of Congress. State legislatures would, in essence, be sovereign, with unchecked power over the fundamental political rights of those citizens who lived within their borders.
This change would both unravel and turn the clock back on our constitutional order, with states acting more like the quasi-independent entities they were before the Civil War and less as the subordinate units of a national polity.
But that, apparently, is what some Republicans want.
Recently, Republicans in North Carolina and Pennsylvania asked the U.S. Supreme Court to block congressional maps drawn by their state courts. Their argument was based on a revolutionary doctrine that would tee up this fundamental change to the American political system.
The challenges, which failed, stemmed from the effort to gerrymander Democrats out of as much power as possible. In North Carolina, the proposed gerrymander was so egregious that the state Supreme Court ruled that it was in violation of the state’s constitution. The court drew a new map to rectify the problem. In Pennsylvania, likewise, state courts drew a new congressional map after Gov. Tom Wolf, a Democrat, vetoed the heavily gerrymandered map produced by the Republican-led legislature.
The North Carolina Supreme Court’s ruling and the Pennsylvania governor’s veto should have been the last word. Both were acting in accordance with their state constitutions, which bind and structure the actions of the state legislatures in question. For Republicans, however, those checks on their power are illegitimate. Their argument, in brief, is that neither state courts nor elected executives have the right to interfere with or challenge the power of state legislatures as it relates to the regulation of federal elections.
Nestled at the heart of the Republican argument is a breathtaking claim about the nature of state legislative power. Called the “independent state legislature” doctrine, it holds that Article I, Section 4 of the U.S. Constitution — which states that “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 choosing Senators” — gives state legislatures total power to write rules for congressional elections and direct the appointment of presidential electors, unbound by state constitutions and free from the scrutiny of state courts.
This isn’t a new theory, exactly. In his concurring opinion in Bush v. Gore in 2000 — joined by justices Antonin Scalia and Clarence Thomas — Chief Justice William Rehnquist argued that under Article II, any “significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.” Meaning, in short, that a state court could go beyond its authority in adjudicating state election law. The other two Republican-appointed justices on the court, Anthony Kennedy and Sandra Day O’Connor, declined to join Rehnquist’s concurrence, even as they voted to stop the counting and give George W. Bush the win.
For 20 years, the doctrine lay dormant. It was resurrected, in 2020, by allies of Donald Trump, who needed some constitutional pretense for their attempt to overturn his defeat. Before the election, a number of state courts had ordered state governments to make accommodations for the pandemic, citing state constitutions. Elsewhere, governors, secretaries of state and state boards of election took matters into their own hands, bypassing the legislature (and using their own authority under the law) to accommodate voters. When, after the election, the Trump campaign sued either to throw out ballots or to invalidate results, its lawyers offered the “independent state legislature” doctrine as justification. So too did supporters of Trump who wanted Republican legislatures to void election results and choose electors who would give the president a second term.
The basic problem with this doctrine is that it’s bunk. “The text of the Elections and Electors clauses is silent as to the role of state constitutions, but the subsequent history is anything but,” the legal scholar Michael Weingartner writes in a draft article on the theory of independent state legislatures. “Since the Founding, state constitutions have both directly regulated federal elections and constrained state legislatures’ exercise of their authority under the Clauses.” What’s more, over the past century, “nearly every election-related state constitutional provision was either approved and presented to voters by state legislatures or placed on the ballot and enacted by voters directly.” Even if the federal Constitution is vague on the full scope of state legislative power to regulate elections, both history and practice have fixed the meaning of the relevant clauses in favor of constraint. State constitutions (and state courts) do in fact regulate state legislatures as it relates to election law.
Some proponents of the “independent state legislature” doctrine argue that theirs represents the original understanding of the Elections and Electors clauses in the Constitution. Another researcher, Hayward H. Smith, says otherwise. “The history demonstrates beyond cavil that the founding generation understood that ‘legislatures’ would operate as normal legislatures, not independent legislatures, with respect to both procedure and substance,” he writes. In fact, he notes, a review of every state constitution adopted in the 19th century reveals “that both explicit and nonexplicit limitations on ‘legislatures’ were widespread before, during, and after the Civil War.”
There’s simply no basis for the claim that the Constitution grants state legislatures this kind of unaccountable power over the conduct of federal elections. It runs counter to the basic idea behind the American political system, that is, the sharing and separation of power among competing and overlapping institutions. It defeats the purpose of this delicate balance to give state legislatures plenary power over federal elections (to say nothing of how it is incongruent with the elite frustration over the scope of states’ power that gave rise to the Constitution in the first place).
Thankfully, the Supreme Court rejected the challenge from Republicans in Pennsylvania and North Carolina. Still, there may be four votes for the theory of the “independent state legislature.” In a 2020 dissent from the majority on the question of whether Pennsylvania should count certain mail-in ballots, Justices Thomas, Samuel Alito and Brett Kavanaugh appeared sympathetic to the doctrine. Neil Gorsuch endorsed it outright, writing that “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”
Dissenting from the court’s decision in the North Carolina case, Alito called the question of state legislative power an issue of “great national importance,” a clear signal that he is open to the arguments of Republican legislators. Kavanaugh concurred. “I agree with Justice Alito that the underlying Elections Clause question raised in the emergency application is important, and that both sides have advanced serious arguments on the merits. The issue is almost certain to keep arising until the Court definitively resolves it.”
It is unclear where the newest justice, the Trump appointee Amy Coney Barrett, stands on the doctrine, although she appears to have voted with the majority in these particular cases.
It is a good thing that the Supreme Court has decided not to throw out more than 230 years of precedent and practice for the sake of a bizarre and anti-democratic reading of the Constitution. But previous Supreme Courts have endorsed bizarre and anti-democratic readings of the Constitution — the Constitution itself has an uneasy relationship with American democracy — and this court, especially, has been more hostile than friendly to the more expansive view of our democratic rights.
We can breathe a sigh of relief, for now, but when it comes to the future of the “independent state legislature” doctrine, the worst may still be on the horizon.
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Source: Elections - nytimes.com
