Patterico's Pontifications

7/11/2022

Constitutional Vanguard: In Defense of the Independent State Legislature Doctrine, Part 1

Filed under: General — Patterico @ 8:29 am



The Supreme Court has agreed to take up a case that addresses something called the “independent state legislature doctrine.” I discussed this with a few people on Twitter several days ago, after I declared that the doctrine looks to me to be a straightforward reading of relatively clear constitutional language. No! many people assured me. This doctrine is crazy. It is radical. It is insane. And Trump is going to use it to steal the next election!

Well, that sounds like something worth discussing!

I have probably worked harder on this piece than any newsletter I have done yet, and at 6,000+ words I’m still only about halfway done. Like my other pieces where I break my back writing thousands of words of analysis, I make a very substantial part of it available to all. And for many people, that’s going to be enough. But some people want a deeper dive into the controversies, and that is available to the paying subscribers.

Here is an excerpt from the free portion:

So what does this wacky independent state legislature doctrine say? Well, it says that when the Constitution uses the phrase “the Legislature thereof” in the above passages, it refers to the state legislature and not the state’s entire tripartite political structure, including the judiciary and the executive.

That’s it. That’s the whole crazy theory: that the word “legislature” means “legislature.” Damn those Federalist Society types!!!1!!!

. . . .

Now, of course, it’s not entirely that simple. There is a whole cottage industry of commentary out there designed to convince you that the word “legislature” doesn’t really mean “legislature,” and you may or may not be surprised to learn that these arguments are not always completely insane. I find some of them supremely unpersuasive and others slightly more plausible. If you’re going to discuss this issue intelligently, you should know what these arguments are. Some of these arguments are addressed today, and some will be addressed in a future newsletter.

And here is an excerpt from the paid portion:

The most common argument I see against the independent state legislature doctrine is that it is incompatible with the structure of our government. I recently discussed the topic with several smart people on Twitter, and I’m going to try to restate their contention in the strongest possible terms before I refute it.

I see two possible arguments for their position:

1. Normal state government processes — such as a governor’s veto and judicial review by state courts — must necessarily play a role in constraining the state legislatures, because state legislatures are a creation of state constitutions, and a state cannot surrender powers in a way that conflicts with its own constitution.

2. When the framers used the phrase “the Legislature” in the Electors Clause, as a matter of the original historical understanding of that phrase, “the Legislature” was understood to mean “the state legislature subject to the normal constraints of state government, including the veto power of the governor and judicial review by state courts.”

Today I will address only Argument #1.

. . . .

I debated both arguments on Twitter with smart people. Our own aphrael stated Argument #1 in this way: “the federal government cannot authorize a state to act outside of the state’s constitution, because the federal government only has the powers expressly granted to it by the states, and no state can grant itself the power to act outside of its own constitution.”

. . . .

I find these arguments wholly unconvincing, largely because of a provision in the federal Constitution called the Supremacy Clause, which is found in Article VI, Clause 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

. . . .

aphrael’s argument from above basically means the Supremacy Clause is null and void. Remember his argument: “the federal government only has the powers expressly granted to it by the states, and no state can grant itself the power to act outside of its own constitution.” Therefore, he appears to argue, no state can grant the federal government the power to do anything inconsistent with its own state constitution. That assertion stands in complete contradiction to the Supremacy Clause, which says that states have granted the federal government the power to do certain things, and to the extent that these grants of power contradict state constitutions, the state constitutional provisions have no effect.

I still have much more to come on this, including a deep dive into the Supreme Court precedents on the issue.

Read Part 1 here. Subscribe here.

44 Responses to “Constitutional Vanguard: In Defense of the Independent State Legislature Doctrine, Part 1”

  1. My first question is whether the “legislature” includes alternative legislative acts in states with the initiative and referendum.

    Second question is whether a state constitutional provision that assigns part of the electoral decision making to the state courts (e.g. “the state supreme court must certify that reapportionment does not constitute a gerrymander”).

    Does this mean only that the other two branches cannot butt in? Or is the restriction so broad that the power cannot be delegated by a willing legislature?

    Kevin M (eeb9e9) — 7/11/2022 @ 9:03 am

  2. If the legislature’s approval is part of the process for amending the state constitutional, is that sufficient to make that amendment a legislative act?

    Kevin M (eeb9e9) — 7/11/2022 @ 9:54 am

  3. Shorter: I think there is a whole body of law that gets thrown out if this idea is adopted, and all kinds of worms come out of the can.

    Kevin M (eeb9e9) — 7/11/2022 @ 10:00 am

  4. Questions I left on the substack:

    Question: In California, the method of choosing Senators and Representatives was enacted through a vote of the people. Does the fact that the Legislature referred it matter? If it had been enacted solely through the initiative would it run afoul of Article I, Section 4?

    Second question: Suppose a state constitution established the voting age at 16. Could a state legislature limit choosing Electors to those 18 or older? In the absence of federal law to the contrary, could they limit voting for Senator of Representative to those 18 or older? Does the federal constitution give the Legislature a blank check to override the plain language of the state constitution?

    Third: You focus on the Trumpist threat. What about things like gerrymanders? Does Art I, Sec 4 mean that neither the state courts nor state constitution can rein these in? Are initiative-created reapportionment commissions unconstitutional?

    Similarly, can a state legislature decide, beforehand, that their electoral votes will go to the winner of some other state? Is that non-justicible in state court? Is it purely correctable by the voters at the polls?

    Kevin M (eeb9e9) — 7/11/2022 @ 10:02 am

  5. Might be more useful if “The Supreme Court has agreed to take up a case”… of finding, outing and punishing the damn leaker.

    Until they put their own house in order, any opinions from these be-robed, paper shuffling bureaucrats really cheapens their gravitas and certainly renders laughable any effort to rule how others should conduct themselves. ‘Course the CJ may know who it is already– one of the justices themselves, eh Alito?

    DCSCA (373f6b) — 7/11/2022 @ 10:06 am

  6. OTOH, there are times when the legislature acts alone, such as ratifying federal amendments, calling for a Convention, merging or spitting states. Until the 17th Amendment, the election of senators.

    Question: did any state have direct election of senators before then, despite the clear instruction that they be chosen by the Legislature? If so, is there case law?

    Kevin M (eeb9e9) — 7/11/2022 @ 10:48 am

  7. Bottom line, I think a legislature can pass legislation to ixnay the popular vote for president, and decide that the legislature alone will be picking Electors, without triggering the Supremacy Clause. Such a move is less democratic than a popular vote but still within the framework of representative government.
    However, what goes around comes around. Three decades from now, there could be a lot more state legislatures with Democrat majorities.
    To me, a governor’s signing or veto is part of that legislature (or legislative process), but IANAL or constitutional scholar.
    Finally, none of this negates the need to reform the ECA. I’ve read the 1887 law, and it’s a mess.

    Paul Montagu (6f211e) — 7/11/2022 @ 12:10 pm

  8. If the Legislatures are supreme here, can the US Supreme Court alter any of their actions for any tangential reason? For example, let’s say an interstate compact is reached to use the so-called popular vote to assign the compact state’s electoral votes, but Congress has not approved the Compact.

    What constitutional provision takes precedence, the Art I, Sec 10 compact clause or the Article II clause?

    Kevin M (eeb9e9) — 7/11/2022 @ 12:29 pm

  9. So Kevin, I will get into this when I discuss the precedents, but under the Elections Clause, precedent has held that states may allow referenda to be treated as legislative action. But the same is not true for the power of the legislature to ratify constitutional amendments. So the Court has tended to look at the function being performed by the legislature in determining to what extent that body is free from interference by other parts of state government.

    Patterico (7dfef7) — 7/11/2022 @ 12:53 pm

  10. Does it matter if the Legislature is the one delegating the act? Is there a case where the legislature chose to allow the People to decide on an Amendment?

    Kevin M (eeb9e9) — 7/11/2022 @ 1:08 pm

  11. I’m mostly trying to get people to discuss this here, not so much to prod Patterico. But crickets.

    Kevin M (eeb9e9) — 7/11/2022 @ 1:09 pm

  12. If the Legislatures are supreme here, can the US Supreme Court alter any of their actions for any tangential reason? For example, let’s say an interstate compact is reached to use the so-called popular vote to assign the compact state’s electoral votes, but Congress has not approved the Compact.

    What constitutional provision takes precedence, the Art I, Sec 10 compact clause or the Article II clause?

    My gut tells me that a “compact” to do this could be struck down if not approved by Congress, but that any state legislature could unilaterally decide to award its electoral votes in any manner it chose not otherwise prohibited by the Constitution, including awarding them to the winner of the nationwide popular vote.

    Patterico (7dfef7) — 7/11/2022 @ 1:13 pm

  13. Shorter: I think there is a whole body of law that gets thrown out if this idea is adopted, and all kinds of worms come out of the can.

    I agree that the precedents are far less clear than the constitutional text. I think some of the precedents (like the AIRC decision) are wrong.

    Patterico (7dfef7) — 7/11/2022 @ 1:17 pm

  14. Kevin M (eeb9e9) — 7/11/2022 @ 9:03 am

    Second question is whether a state constitutional provision that assigns part of the electoral decision making to the state courts (e.g. “the state supreme court must certify that reapportionment does not constitute a gerrymander”).

    Normally state court decisions as to what state law means are not reviewable by federal courts, but here, I think, they have to overrule it if it is clearly wrong. I think that’s the way to go.

    Electors for president is a plenary power but it should be assumed that unless it said otherwise, the state legislature – and the governor is part of it by the way – should be assumed to have intended usual state law to apply unless it said otherwise.

    Justice Kavanaugh wanted a case like this to come before the court in anon-election year.

    Sammy Finkelman (1d215a) — 7/11/2022 @ 1:34 pm

  15. Kevin M (eeb9e9) — 7/11/2022 @ 1:08 pm

    ? Is there a case where the legislature chose to allow the People to decide on an Amendment?

    Congress can decide whether the leislature or conventions can decide on an amendment and in the case of the 21st (repealing Prohibition) it chose conventions. Here the legislature means the legislature itself, and it also did when electing Senators, but otherwise it should mean the legislative power of the state.

    They can do anything they want when it comes to choosing presidential electors provided they do it before the date set by Congress for choosing electors. The last state legislatures to take back the power of choosing electors was (apparently) New Jersey and North Carolina in the year 1812 – and the reaction was not kind.

    https://www.nytimes.com/2022/07/08/opinion/trump-democracy-states.html

    Or. maybe without a paywall?

    https://www.twincities.com/2022/07/10/jamelle-bouie-next-time-trump-tries-to-steal-an-election-he-wont-need-a-mob

    The historian Alexander Keyssar details these shenanigans in the book “Why Do We Still Have the Electoral College?” He notes:

    In North Carolina, which had utilized a district system since 1796, the legislature announced that it would choose electors by itself: its majority feared that Madison might lose the state to DeWitt Clinton, who ran with the support of both Federalists and dissident Republicans.

    On the other side, “the Federalist legislature in New Jersey announced, just days before the election, that it was canceling the scheduled balloting and appointing electors of its own.” And in Massachusetts, the Republican-led senate and Federalist-led lower house could not agree on a method for choosing electors. “In the end,” notes Keyssar, “an extra legislative session had to be convened to save the state from losing its electoral votes altogether.”

    Massachusetts had switched back from the district system to the legislature in 1800 – evidently they had made no provision for choosing electors in 1812.

    By 1836 all states exceot South Carolina were using some form of popular vote. The legislature of South Carolina kept choosng presidential electors until 1860. (In 1876 newly admitted Colorado also chose its electors by the state legislature. That was the last. In 1892, Michigan came uopp with convoluted districts.

    https://en.wikipedia.org/wiki/McPherson_v._Blacker

    Sammy Finkelman (1d215a) — 7/11/2022 @ 1:49 pm

  16. People who love this country and don’t want to see civil war like with the dred scott decision try to work around what the constitution literally says using the courts and executive. Remember 26 states with 18% of the population control 52 senate seats.

    asset (ef89d5) — 7/11/2022 @ 2:42 pm

  17. The Dewd Scott decison was overruled bythe 13th and 14th amendments.

    Sammy Finkelman (1d215a) — 7/11/2022 @ 2:45 pm

  18. @17 Only after it was first over ruled on july 3 1863 cemetery ridge gettysberg pennsylvania with northern bayonets.

    asset (b58ea2) — 7/11/2022 @ 4:07 pm

  19. My gut tells me that a “compact” to do this could be struck down if not approved by Congress, but that any state legislature could unilaterally decide to award its electoral votes in any manner it chose not otherwise prohibited by the Constitution, including awarding them to the winner of the nationwide popular vote.

    We hear a lot about a “right” being rescinded lately. Now, that “right” was judge-created and never accepted by many, but still we hear about it.

    The right to vote for your state’s electors is, in most states about 200 years old (or in newer states, back to their admission). It was created not by judges, but by legislatures in full command of their faculties, and has continued unbroken from then to now. If there is *ANY* inertia to rights, if there is any basis for asserting that a right cannot be rescinded once granted (as it is the case in some states), then this right would be about as sacrosanct as any other, predating even the Civil War.

    But maybe any unenumerated right can be rescinded at any time and all those Trumpian legislatures can claw back their power before 2024 and just declare Trump the winner.

    Kevin M (eeb9e9) — 7/11/2022 @ 5:09 pm

  20. Remember 26 states with 18% of the population control 52 senate seats.

    Remember that the Constitution says that each state has an unamendable right to equality in the Senate.

    Kevin M (eeb9e9) — 7/11/2022 @ 5:12 pm

  21. @20 When it becomes destructive. It is the right of the people to alter or abolish. Thomas Jefferson. Biden is a senile old fool and establishment stooge who is worried about hunter (and should be worried about the “big guy”) The democratic party base is not. The situation is getting worse not better.

    asset (b58ea2) — 7/11/2022 @ 5:53 pm

  22. When it becomes destructive. It is the right of the people to alter or abolish.

    Maybe they don’t want to do that. I’ve said before, that the way at the Senate thing is to make several smaller states out of big states. Lots of reasons to do that, although some you won’t like, such as breaking up the CA electoral vote among states that won’t all go the same way. But some grand deal where 50 states became 80 states and local minorities came out from under the heel of the metropolis, and you might have a thing. Of course, this would not be done with guns and blood, so maybe you wouldn’t like it.

    Kevin M (eeb9e9) — 7/11/2022 @ 6:35 pm

  23. Why should we presume that the founders would believe that state legislatures would run fair elections? This seems like the underlying assumption of the proponents of the ISL theory. It would seem inconceivable that the framers would write the Elections Clause to give the Congress the power to override abuses of states in congressional elections, yet would be willing to allow state legislatures to operate without the constraints of governor veto, the state constitution, and state judicial review….in say a presidential election.

    I think ISLers would need to look at early state practices and convince us that this actually went on. My sense is that state election power was shared across the tripartite spectrum, but I’m open to persuasion. It would seem if adopted, this would enable gerrymandering…even if explicitly banned in state constitutions….as it would be beyond state review. The same with rejecting a slate of electors if the state legislature objects to some decision by a secretary of state or election commission. This is supremacy run amok.

    I just don’t see framers authorizing such a breakdown in the checks and balances process…or that they cared about federal congressional election oversight, but were laissez faire about presidential elector selection. I think mention of state “Legislature” structurally implies “limited by the state constitution”. If judicial review is part of that constitutional process, then a state legislature can’t simply ignore it. At least that’s my view….

    AJ_Liberty (c82e21) — 7/11/2022 @ 7:37 pm

  24. @23. Read the Articles of Confederation for a taste of their mindset to stew over:

    https://www.articlesofconfederation.com/p/articles-text.html

    DCSCA (72f771) — 7/11/2022 @ 7:56 pm

  25. Today was a good day for subpoenas.
    Three cheers for the rule of law.

    Paul Montagu (5de684) — 7/11/2022 @ 8:56 pm

  26. Oops, that was an open thread comment.

    Paul Montagu (5de684) — 7/11/2022 @ 8:57 pm

  27. Three cheers for the rule of law…

    Where’s the leaker!
    Where’s the leaker!
    Where’s the leaker!

    DCSCA (02ca3a) — 7/11/2022 @ 9:12 pm

  28. Everyone leaks, DC. You of all fascists should know that.

    Paul Montagu (5de684) — 7/11/2022 @ 9:29 pm

  29. @28. And the RINO blows his horn: making excuses for paper-shuffling, be-robed bureaucrats.

    But then, right in character with Tappa Kegga Kavanaugh exercising his freedom of choice to make the ‘fascist’ exit possible running out the back door of a steak house rather than choose to fearlessly brave the ladies chanting at him out front.

    DCSCA (02ca3a) — 7/11/2022 @ 9:40 pm

  30. The only things I’ve said about Kavanaugh is that criminals should be arrested for “protesting” in front of his house, but regale me again your love for the fascist ruler of Russia.

    Paul Montagu (5de684) — 7/11/2022 @ 10:14 pm

  31. @30. And the RINO blows his horn— still not camoed up yet, eh… Uncle Z Wants You!

    DCSCA (02ca3a) — 7/11/2022 @ 10:30 pm

  32. It would seem if adopted, this would enable gerrymandering

    Governor Gerry was a delegate to the Convention, although he left without signing.

    Kevin M (eeb9e9) — 7/11/2022 @ 11:39 pm

  33. DCSCA (02ca3a) — 7/11/2022 @ 9:12 pm

    The joker at every funeral, the drunk at every wedding, the non sequitur in every debate.

    Kevin M (eeb9e9) — 7/11/2022 @ 11:41 pm

  34. AJ,

    I have to agree that state laws need presentation and approval by the executive. The Supremes killed the legislative veto at the federal level for lack of that. Except for things that are NOT laws, all laws follow the same rules.

    The rub comes with respect to “judicial review” and especially when that review results in substitute statutes (which, oddly, do not require presentation). It is one thing to say “this law is invalid.” It is quite another to say “we prefer this scheme here.” It would seem reasonable to say that state courts cannot create law that is reserved to the legislature while still allowing judicial review.

    As far as state constitutions are concerned, few if any of those are created without legislative action, and if initiatives are legislative action, I would go so far as to say NO state constitutional provision happens without the legislature’s OK. So, to call the state constitution foreign to the legislature seems quite a stretch.

    So. All that the ISL doctrine says is that courts cannot rewrite the law and apply it. They can strike something down and demand the legislature do better. Doing that right before an election might be destabilizing, and they should avoid that, but claiming urgency from their own act allows them to impose new law is, I think, wrong.

    Kevin M (eeb9e9) — 7/11/2022 @ 11:52 pm

  35. N.R.A. news 7-11- 2022 Someone is shooting people at 7-11 stores in california to celebrate the 2nd amendment. I would wait to till after midnight to visit one! # dead and counting.

    asset (baaaca) — 7/11/2022 @ 11:55 pm

  36. And sure, by judicious striking of sections of statutes, a judge can write new law. I would argue that things that are reserved to the legislature not be handled that way.

    Kevin M (eeb9e9) — 7/11/2022 @ 11:57 pm

  37. There were 6 robberies of 7-11’s on 7/11. Two customers and a clerk were shot, and the clerk and one customer died. There are indications that some or all of them were done by the same Black male. Details here: https://www.cbsnews.com/losangeles/news/7-eleven-shootings-robberies-riverside-la-habra-santa-ana/

    To say this was an NRA member is, of course, slanderous.

    Kevin M (eeb9e9) — 7/12/2022 @ 12:13 am

  38. NRA news did not say member.

    asset (baaaca) — 7/12/2022 @ 12:53 am

  39. Is it slandering the NRA, or the robber, though?

    Nic (896fdf) — 7/12/2022 @ 1:00 am

  40. @33. That’s three of the nine you’ve pegged, Which one’s the leaker?

    Bring on the Dancing Alitos!

    DCSCA (eb152c) — 7/12/2022 @ 1:11 am

  41. I think mention of state “Legislature” structurally implies “limited by the state constitution”. If judicial review is part of that constitutional process, then a state legislature can’t simply ignore it. At least that’s my view….

    Sincere question: you don’t think a governor could veto a state legislature’s decision to ratify a state constitutional amendment, right? What if the state constitution gave him that power? What if a state constitution gave the people the right to overrule that ratification through a referendum? (Hint: this issue was decided long ago.)

    Patterico (f8b46f) — 7/12/2022 @ 8:32 am

  42. So. All that the ISL doctrine says is that courts cannot rewrite the law and apply it. They can strike something down and demand the legislature do better. Doing that right before an election might be destabilizing, and they should avoid that, but claiming urgency from their own act allows them to impose new law is, I think, wrong.

    I think this view is pretty consistent with the precedents I have read so far.

    Patterico (7e54d1) — 7/12/2022 @ 8:33 am

  43. @41: But are election procedures and apportionment more like ratification or more like laws? I am willing to bet that in every state, history and custom show that these are laws presented to the governor and sometimes vetoed as laws sometimes are.

    The real conflict we have been having is in judge-created election rules and districts. Here you have the judiciary not just “reviewing” but asserting new law. Any analysis of ISL would suggest they cannot create new law.

    At best they can declare it unconstitutional and send it back. It’s possible they cannot do this either, but that means the legislature is not bound by the state constitution, and that’s a hard sell.

    Kevin M (eeb9e9) — 7/12/2022 @ 4:33 pm

  44. OH. Read 42. I agree with that.

    Kevin M (eeb9e9) — 7/12/2022 @ 4:35 pm


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