{"id":412,"date":"2022-07-14T00:00:00","date_gmt":"2022-07-14T04:00:00","guid":{"rendered":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/?p=412"},"modified":"2022-12-04T20:45:05","modified_gmt":"2022-12-05T00:45:05","slug":"furor-over-independent-state-legislature-ignores-constitutional-text","status":"publish","type":"post","link":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/2022\/07\/14\/furor-over-independent-state-legislature-ignores-constitutional-text\/","title":{"rendered":"Furor Over “Independent State Legislature” Ignores Constitutional Text"},"content":{"rendered":"\n

Recently I’ve been seeing many news articles\/editorials\/analyses((For example: This Supreme Court case could be the ultimate coup for Republicans \u2013 and the death of our democracy<\/a> (NJ.com-clearly marked as an editorial); Why Republicans want to redefine one word in the Constitution<\/a> (CNN-an analysis); Supreme Court case could reshape redistricting. What it means for Pa. elections<\/a> (Morning Call-“Pennsylvania news”), How The Supreme Court Could Turbocharge Gerrymandering \u2014 Just In Time for 2024<\/a> (FiveThirtyEight, but with none of the usual statistics), and How an upcoming Supreme Court case could upend 2024 election laws, lawsuits<\/a> (behind USA Today’s paywall; also appears on MSN.com<\/a>). The intellectual inspiration for many of these articles may be an “explainer” published by the Brennan Center for Justice: “The \u2018Independent State Legislature Theory,\u2019 Explained.”<\/a> )) in which the authors wring their hands over the Supreme Court’s grant of certiorari in Moore v. Harper<\/a><\/em> and what they call the “independent state legislature” doctrine or theory.((I’m not sure it’s first use of the term, but the name “independent state legislature doctrine” was used by Michael T. Morley in his article The Intratextual Independent “Legislature” and the Elections Clause<\/em>, 109 NW. U.L. REV. ONLINE 131, 147 (2015)<\/a>.)) These articles take strong positions on the merits of the theory, which they warn that this case could lead to the destruction of our democracy, without (for the most part) any consideration of the constitutional text. I expect a good deal of the concern is that some of the arguments asserted to challenge the validity of President Biden’s election were based upon this theory and the usurpation of the Legislature’s authority by governors and courts premised upon states of emergency declared in response to the COVID-19 pandemic.((See 167 Cong. Rec. H77-H78 (daily ed. Jan. 6, 2021) (statement of\u00a0Rep. Scalise); 167 Cong. Rec. H79 (daily ed. Jan. 6, 2021) (statement of\u00a0Rep. Jordan).))<\/p>\n\n\n\n

The basic premise of the independent state legislature doctrine is that the United States Constitution confers certain authority upon State “Legislatures” which thereby act as agents of the federal government. Pursuant to the Constitution’s Supremacy Clause (Article VI, clause 2), the States cannot reallocate or limit this authority granted to the Legislature. Therefore, the Legislature’s exercise of this authority is not subject to substantive provisions of the State Constitution. This theory was hinted at, but I doubt had its genesis, in Chief Justice Rehnquist’s concurrence in Bush v. Gore<\/em>, 531 U.S. 98 (2000)<\/a>.<\/p>\n\n\n\n

The present argument involves two provisions of the Constitution. The first, called the “Elections Clause,” is in Article I, section 4:<\/p>\n\n\n\n

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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.<\/p>\n<\/blockquote>\n\n\n\n

The second is in Article II, section 1:<\/p>\n\n\n\n

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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.<\/p>\n<\/blockquote>\n\n\n\n

(The text source for these quotations, including spelling and capitalization, is the National Archives<\/a>.)<\/p>\n\n\n\n

Proponents of the independent state legislature doctrine argue that these two provisions mean what they say, the Constitution gives State Legislatures the power to establish rules (subject to Congressional supremacy) to govern Congressional elections in the State and the absolute power to determine how the State’s presidential electors will be chosen, all subject to the provisions of the United States Constitution.((As an example of such a provision, section 1 of the Twenty-Fourth Amendment states: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”))<\/p>\n\n\n\n

Opponents who consider the text at all read “Legislature” to involve a State’s entire law-making function, including not just the potential of a veto by the governor, but also popular initiative and referendum, and perhaps much else.((Most of the articles I cited in note 1 do not bother with the constitutional text; all of them are more concerned about the evils they believe State legislators (at least the Republican ones) will be able to accomplish. I plan to address those concerns in a later post.)) They do have some support from relevant precedent. In Arizona State Legislature v. Arizona Independent Redistricting Commission<\/a><\/em>, 576 U.S. 787 (2015), a 5-4 majority of the U.S. Supreme Court construed the Election Clause to countenance a voter initiative that had amended the State constitution to transfer the Legislature’s power over congressional redistricting to an independent commission.((The law review article cited in note 2 was published while this case was pending and substantively argued against the result the Court ultimately reached.))<\/p>\n\n\n\n

Jay Bohn
July 14, 2022<\/p>\n","protected":false},"excerpt":{"rendered":"

Recently I’ve been seeing many news articles\/editorials\/analyses((For example: This Supreme Court case could be the ultimate coup for Republicans \u2013 and the death of our democracy (NJ.com-clearly marked as an editorial); Why Republicans want to redefine one word in the Constitution (CNN-an analysis); Supreme Court case could reshape redistricting. What it means for Pa. elections … Continue reading “Furor Over “Independent State Legislature” Ignores Constitutional Text”<\/span><\/a><\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[10],"tags":[],"class_list":["post-412","post","type-post","status-publish","format-standard","hentry","category-law"],"_links":{"self":[{"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/posts\/412","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/comments?post=412"}],"version-history":[{"count":19,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/posts\/412\/revisions"}],"predecessor-version":[{"id":777,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/posts\/412\/revisions\/777"}],"wp:attachment":[{"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/media?parent=412"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/categories?post=412"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/tags?post=412"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}