The North Carolina Partisan Gerrymander Case and the Ahistorical “Independent State Legislature” (ISL) Theory: Part One in a Series

Posted in: Constitutional Law

With all the major news events of the last week, one important storyline may be going unnoticed. Last Friday, Republicans in North Carolina asked the U.S. Supreme Court for an emergency stay to put on hold the redistricting plan for the state that the North Carolina courts (including the state supreme court) had ordered and crafted over the last month. (Every decade, using updated census data, each state redraws its congressional districts to satisfy the U.S. Constitution’s requirement that congressional districts be equally sized.) The North Carolina legislature had proposed a set of congressional districts, but the legislature’s plan was rejected by the state courts for violating the prohibition—in the state constitution—on excessive partisanship.

While it is not yet clear that the U.S. Supreme Court will block the actions of the North Carolina courts and take up the issues the cases raises, the request for relief at the Court is itself troubling, both for its practical consequences in this and other partisan gerrymandering settings, but also (and more so) because the theory it invokes—known as the “Independent State Legislature” (ISL) doctrine—would, if accepted by a majority of the Justices, prevent state courts from enforcing state constitutional voting rights in all congressional (and presumably presidential) elections. In this multi-part series of columns, I hope to convince readers that the ISL notion (as to both congressional and presidential elections) is not just lawless—that is, not grounded in the law—but actually law-defying. It stands lawful federalism on its head, invoking 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 I’s and Article II’s election language was to empower states. My series of columns here borrows heavily from a longer and much more thorough Article co-authored with Akhil Amar (my brother and fellow constitutional law professor) that forthcoming in The Supreme Court Review. (Interested readers can and should look at a current draft of the Article, downloadable on SSRN. Today’s Verdict installment describes the ISL in detail and explains how inconsistent the theory is with Founding-era understandings and expectations. Subsequent installments focus on how ISL flies in the face of clearly settled—and very recent—Supreme Court precedent signed onto by the Court’s conservative as well as liberal Justices, and how ISL in fact flies in the face of the (statutorily) expressed wishes of the state legislatures whose prerogative the theory purports to protect.

ISL in a Nutshell

ISL theory ostensibly derives from the fact that the federal Constitution, in Articles I and II, makes specific mention of the “legislatures” of the states when it comes to administering federal elections. Under Article I, section 4, the “Times, Places and Manners” of holding congressional elections “shall be prescribed in each State by the Legislature thereof,” subject to override by Congress. Similarly, Article II, section 1 provides (as to the selection of presidential electors) that “each state shall appoint, in a manner the legislature thereof may direct,” a set of electors to represent the people of that state.

ISL theory has two big components. First, the theory holds that because Articles I and II use the term “legislature,” each state’s elected legislature enjoys a federal constitutional right to enact and have fully implemented federal election regulations notwithstanding any conflicts between the legislature’s enactments and the state constitution that creates and bounds the legislature itself. Second, ISL adherents contend that, if any state constitutional limits do in any way constrain a given state legislature, federal courts must decide what those limits are, and how best to interpret state election statutes. Prominent believers in ISL are coy about whether their approach means de novo review by federal judges, or instead federal review with some (limited) deference to state judicial and executive interpretations. But make no mistake: either way it does not mean business as usual, under which federal courts would almost invariably accept state law as pronounced by state adjudicatory entities.

The Anti-Originalist Nature of ISL Theory

Both halves of this “we-must-protect-the-state-legislatures” theory find no support in, and in fact are rejected by, Founding-era understandings and expectations of the words of Articles I and II. Let’s start with constitutional text: Articles I and II do create powers and duties on the part of the “Legislature” of each state. But what, precisely, is a state “legislature” for these purposes? One aspect of this question is definitional: who must or can be counted as a “legislature”? Can a “legislature” include a veto-pen-wielding governor? Can it consist of an independent agency, or the people themselves engaged in direct democracy via initiatives and town meetings? Another aspect is whether the “legislature,” however defined, can override state constitutional directives on how elections must be run. Remarkably, modern advocates of ISL offer nothing—nothing!—to suggest that anyone at the Founding would have understood state “legislature” to mean a free-floating body untethered to the state constitution. Or, a body whose legislative work-product would be free from state court jurisdiction and instead subject largely or wholly to federal judicial interpretation.

In fact, the meaning of state “legislature” was well accepted and bore a clear public understanding at the Founding: A state “legislature” was an entity created and constrained by its state constitution. The creation of new, republican state constitutions up and down the American continent was a truly transcendent achievement in the late 1770s, acclaimed and revered by Americans everywhere. These new state constitutions were the very heart and soul, legally, of the American revolution. These state constitutions were universally understood as creations of the American people themselves. So of course state constitutions were understood as supreme over state legislatures at the Founding! And of course state courts could—and did—enforce these state higher laws against state legislatures themselves. Notable state judicial review under state constitutions in fact predated the Philadelphia Convention and Marbury v. Madison.

The clear language and logic of the U.S. Constitution’s Article VI Supremacy Clause emphatically confirmed the general supremacy of state constitutions over mere state statutes, in the very same breath that the document similarly affirmed the supremacy of the federal Constitution over mere federal statutes. The clause textually enumerated five types of law, and in every instance, the textual order of each type of law tracked its lexical order, from highest law to lowest law: The U.S. Constitution came first, then federal statutes, then federal treaties, then state constitutions, then state statutes. In that order, both textually and legally: “[1]This Constitution, and [2] the Laws of the United States which shall be made in Pursuance thereof; and [3] 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 [4] the Constitution or [5] Laws of any State to the Contrary notwithstanding.”

The matter is really no different from what Chief Justice John Marshall said in Marbury v. Madison and what Alexander Hamilton said before that in the Federalist No. 78, and what the Constitution itself said even earlier in the Article VI Supremacy Clause and elsewhere: When Congress enacts an unconstitutional bill, its actions simply cease to have the force of law. The same first principles hold true when a state legislature enacts a bill that violates its state constitution.

In this regard, consider Article I, section 4, which vests backup power to regulate various aspects of congressional elections in “the Congress.” No sober person would think that this provision vests final substantive power in Congress to do things forbidden by other parts of the federal Constitution itself, a Constitution that indeed creates and bounds Congress. Imagine, for example, a congressional statute proclaiming John Smith by name as ineligible to run for Congress, in obvious violation of the spirit of the Article I, section 9 bans on federal bills of attainder. Or imagine a congressional statute proclaiming Catholics ineligible, in plain contravention on the Article VI ban on federal religious tests, to say nothing of the later First Amendment. No one would seriously suggest that federal courts lack power to interpret federal statutes regulating congressional elections with an eye towards harmonizing those statutes with constitutional rights. Nor would anyone deny that Congress has in fact deputized federal courts to perform these very functions.

All this is of course true for every provision of Article I that vests power in Congress. But the point is particularly sharp when we juxtapose “the Congress” and “the Legislature” of “each state” in Article I, section 4. If the federal Congress is quite obviously not independent of the federal Constitution, why should anyone think that the state legislature in this very same clause is somehow independent of its state constitution?

Indeed, at the Founding, the “legislatures” of each state to which Articles I and II refer were, as a general matter, far from free agents. Voters in many states claimed the power to formally “instruct” their state representatives and thus legally bind them on specific issues. The right to instruct had appeared explicitly in the constitutions of at least five states. Founding-era state legislatures were not independent sovereign entities; they were then, and state legislatures remain today, delegatees of the sovereign power of the people. That is why the devices of instruction, recall, referendum, and initiative (to say nothing of judicial review) do not improperly invade the powers of state legislatures, but instead operate as mechanisms that further define the scope of state legislatures’ legitimate authority. The Tenth Amendment preserves broad power of the people of the states to shape governments in whatever ways they want, and the Guarantee Clause of Article IV generally requires the federal government to respect and protect—not disregard and override—these state choices about how to create, divide, limit, and implement lawmaking powers.

Early practice under the new federal Constitution provides still further, and compelling, reason to reject ISL ideas. Four of the six state constitutions that were adopted or revised in the Constitution’s earliest years of operation—George Washington’s first term—regulated the manner of federal elections, and in so doing cabined the power of the state legislature. The Delaware Constitution of 1792 explicitly required that voters elect congressional representatives “at the same places” and “in the same manner” as state representatives. Three other state constitutions—Georgia’s in 1789, Pennsylvania’s in 1790, and Kentucky’s in 1792—required “all elections” to be “by ballot” rather than viva voce. Though congressional and presidential elections were not specified as such, provisions by their express terms applied to all elections—popular elections for statewide offices, to be sure, but also biennial elections for federal House members and any popular elections for presidential electors that might be held in the future.

Obviously, prior to 1787, no state constitution would have aimed to regulate Article I congressional elections and Article II presidential elections because Articles I and II did not yet exist. The U.S. Constitution did not truly commence operation until early 1789, and over the next four years, only six states revised their prior constitutions or adopted new ones. And, again, four of the six rejected an ISL approach, a fact fundamentally inconsistent with the notion that founders understood “legislature” to mean “independent legislature.”

In addition, at least two early states that provided for vetoes for general legislative action employed such veto provisions in the process by which federal election rules were made. In Massachusetts, bills regulating federal elections were not considered by the legislative houses alone but were presented to—and subject to disapproval by—the governor. And in New York, such bills were subjected to a council of review that included not only the governor, but also members of the state judiciary.

Thus, the Constitution in both Articles I and II takes state legislative bodies as it finds them, subject to pre-existing control by the people of each state—the ultimate masters of state legislatures—and the state constitutional limits that those people create. And of course the Constitution also plainly recognizes the general role of state courts as the last word on the meaning of state law, including state constitutions, even when those constitutions constrain state legislatures.

To see all this one final way, let us return to the key text of Articles I and II. If, for all the reasons I have identified, the term “legislature” does not mean “independent legislature” but instead means “legislature as defined and limited by the state constitution,” why is the term “legislature” (rather than simply “state”) there at all? The most obvious explanation relates to efficiency and expense. The Framers knew that each of the thirteen then-existing states had an ordinary standing legislature, and Article II created a simple, inexpensive, and self-executing default that, unless a future state constitution specified otherwise by creating a special ad hoc legislative body or process, the state’s ordinary pre-existing state legislature would be the body to adopt federal election regulations. States would thus be able to discharge their powers/duties to administer federal elections straightaway, without any confusion or uncertainty about the state legislatures’ power to act. And, to repeat, nothing in the federal Constitution suggests that the ordinary state legislature would have federal carte blanche to act in extraordinary ways contrary to the general rules limiting the legislature in the very state constitution that created and bounded that legislature.

In my next installment, I demonstrate how utterly inconsistent ISL theory is with stare decisis, and how ISL proponents—unfathomably—don’t even acknowledge, much less try to deal with, the Court’s precedents that squarely reject ISL notions.

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