The radical Right’s “Independent State Legislature” theory about federal elections, primarily expressed by Donald Trump’s supporters, is, in its starkest form, a fantasy. Almost equally wrongheaded, though, are those who entirely dismiss even milder versions of the theory.
The extreme form of ISL theory is pushed by radicals who argue state legislatures enjoy completely independent powers over federal elections in their states. In turn, say Trump’s radicals, state legislatures had plenary powers to choose new slates of electors for Trump even after voters’ ballots had been counted.
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Three distinguished, non-leftist constitutional scholars, one of them co-chairman of the conservative Federalist Society, filed a brief Monday rightly opposing those radicals. They join conservative luminary J. Michael Luttig, a former federal appeals court judge, in dismissing the ISL theory.
Luttig and scholars Steven Calabresi (the Federalist Society co-chairman), Akhil Reed Amar, and Vikram David Amar have a point.
Granted, it is true that ISL theory cites language from each of the first two articles of the Constitution to the effect that the state legislature shall “prescribe” or “direct” how federal elections are held. It is also true that in other places, the Constitution gives power to the “states” broadly without specifying that the powers belong to the legislatures (as opposed to governors or the judiciary) thereof. Therefore, advocates of ISL say the greater specificity in the election clauses should be interpreted to make the legislatures the supreme arbiter of each state’s votes.
By extending that logic, they say, the legislatures could retroactively decide their own states’ presidential vote counting was illegitimate and then appoint a slate of delegates more to their liking. That is one way that Trump hoped to overturn the election results that made Joe Biden the president, and it is how they plan to operate in future close elections if needed to put their candidate into office.
Yet, as the scholars’ friend-of-the-court brief in the case of Moore v. Harper shows convincingly, this doesn’t mean the legislatures are free agents unconstrained by their own state constitutions (as interpreted by the states’ judiciaries), which represent the overarching will of the states’ citizens. The legislatures are creatures of the state constitutions, with their actions circumscribed by limits in each state constitution. Each state constitution is, in turn, outweighed by the U.S. Constitution, which is “the supreme law of the land.” (Moore is about legislative redistricting, not presidential electors, but its plaintiffs rely on the same ISL reasoning. The scholars’ refutation of it also applies to presidential disputes.)
The scholars say that in context, the mention of “legislature” refers to the state’s entire “lawmaking system,” with the legislatures writing the laws but governors enjoying veto powers and state supreme courts able to overturn laws that violate state constitutions. The legislatures are the primary actors writing, or “direct[ing]” or “prescribe[ing],” how the states’ federal elections will be conducted, but they don’t exist in a vacuum. The ordinary distribution of and separation of powers still exists.
That constitutional context is important.
In general, Calabresi and company have the best of the argument. On the other hand, perhaps they are too dismissive of the independent legislature theory. For example, they also write that three conservative Supreme Court justices erred in the 2000 Bush v. Gore case in writing a concurring opinion based on a narrower version of ISL. In that slap at the justices, and indeed overall, they probably go too far.
In Bush v. Gore, Justices William Rehnquist, Antonin Scalia, and Clarence Thomas quite reasonably gave weight to the specificity of state “legislatures” in the Constitution by noting that under explicit terms of federal law providing deadlines for naming presidential electors, state courts could not claim some sort of cosmic-fairness power in effect to rewrite law in ways that contradicted the rules that the state legislature had created.
Of importance in disproving arguments from Trump advocates who mistakenly cite Bush v. Gore, the conservative justices there were careful and explicit, in saying the legislature’s primacy applies only “if the electors are chosen under laws enacted prior to Election Day.” By its very terms, that concurring opinion contradicts Trump’s claim of an after-the-fact authority for state legislatures to change the result.
All of which is why surely the better interpretation of the Constitution’s election clauses is to give a type of special weight, but not totally independent weight, to the prerogatives of state legislatures above other state actors in certain narrow circumstances. In fact, that’s precisely what two other conservative constitutional scholars did.
Michael McConnell, a prominent former federal-appeals judge, and director of the Stanford University Constitutional Law Center, and William Baude, director of the University of Chicago’s Constitutional Law Institute, reject both extremes. For a concrete example specifically concerning the drawing of legislative districts, they write that “state constitutional provisions can restrain legislative redistricting … [but] courts do not have independent constitutional power to adopt their own map.” Instead, courts can say only “yea” or “nay” and, if “nay,” must send the issue back to the legislature rather than doing the job itself.
It makes no sense to ignore that the Constitution’s framers specified “legislature” rather than just “state.” No unamended word in the Constitution should be interpreted as a nullity. Yet, contrary to the radical Trump argument, no word should be interpreted without careful attention to context.
McConnell and Baude, like Rehnquist, Scalia, and Thomas before them, occupy what they call “commonsense middle ground.” Commonsense that is, and constitutionally well grounded.
