In Part One of this series, I discussed the so-called Independent State Legislature (ISL) theory of Articles I and II of the U.S. Constitution, and how Republicans in North Carolina are invoking the theory to challenge rulings of the North Carolina state courts, who rejected (and replaced) congressional district lines drawn by the state legislature on the ground that these lines ran afoul of the North Carolina constitution. The North Carolina dispute is certainly not the only one in which the question of state court enforcement of state constitutional requirements in federal elections has come under focus. As my co-author (Akhil Amar) and I explain in great detail in an Article forthcoming in The Supreme Court Review (a draft of which is available on SSRN here), the ISL theory has its “modern” origins in the Bush v. Gore litigation two decades ago, and four Justices flirted with the theory (albeit not all at the same time and not in any case decided on the merits) in the run-up to the 2020 presidential election. And since my writing of Part One of this series (just a few days ago!), the theory has been invoked in another emergency application filed at the U.S. Supreme Court, this one involving state-court decisions in Pennsylvania. So these issues don’t seem to be going away anytime soon.
And that is quite ironic, since – as I will show in this installment of the series – acceptance of the ISL theory as concerns federal elections has never been the basis of any case ever decided on the merits by the Supreme Court. In fact, the theory has (in the Article I context at issue in the pending North Carolina and Pennsylvania matters) been directly, recently, and broadly repudiated by the Court. (I should note that if ISL doesn’t work in Article I, a fortiori it doesn’t work in Article II.) So in addition to being anti-originalist, recent invocations of ISL theory in congressional and presidential elections are also strikingly anti-precedential.
To recap from Part One: 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.
Interpreting the word “legislature” in Articles I and II in an historical and structural vacuum, the theory holds 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. And ISL adherents also 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.
ISL and Supreme Court Precedent
As noted above, ISL theory (in the Article II context) reared its head in the Bush v. Gore litigation involving the 2000 presidential election. The ultimate outcome of that litigation was the U.S. Supreme Court’s decision (in what became known as Bush II) to stop the vote recount that the Florida Supreme Court had ordered under Florida law, on the ground that the state-law recount that was being conducted violated federal equal protection principles. Prior to that momentous ruling in Bush II, the Court had earlier remanded (in Bush I) things back to the Florida Supreme Court for clarification on the state court’s reasoning.
As part of its remand in Bush I, the Court quoted from an 1892 case, McPherson v. Blacker, on the meaning of Article II:
Although we did not address the same question petitioner raises here, in McPherson v. Blacker, 146 U.S. 1, 25 (1892), we said: “[Article II, § 1, cl. 2] does not read that the people or the citizens shall appoint, but that ‘each State shall’; and if the words ‘in such manner as the legislature thereof may direct,’ had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence, the insertion of those words, while operating as a limitation upon the State in respect of any attempt to circumscribe the legislative power, cannot itself be held to operate as a limitation on that power.”
Article II and the offhand meaning given to it in Blacker made a return appearance in the second—and dispositive—Supreme Court go-around (Bush II) in the Florida matter, in the concurring opinion for Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas. These three indicated they would have invalidated the actions of the Florida courts on ISL grounds. Their reasoning was not signed onto by a majority in Bush II, and was in fact rejected by four Justices, more than the number who embraced it.
Some current ISL proponents invoke the remand in Bush I (which was unanimous) to suggest Court support for ISL. Putting aside the time and briefing constraints that caution against reliance on any of the rulings in the Bush v. Gore litigation, the Court itself in Bush I explicitly said it was not ruling on the merits of anything, including the meaning of Article II. Because the basis of the Florida Supreme Court’s initial ruling was not entirely clear, the U.S. Supreme Court merely remanded the case for clarification by the state judiciary: “[T]here is considerable uncertainty as to the precise ground for the [Florida Supreme Court’s] decision . . . . This is sufficient reason for us to decline at this time to review the federal questions asserted to be present.” (emphasis added). Indeed, if a unanimous Court in Bush I had held what careless commentators and jurists in recent months have said it held, how is it that just two weeks later, in Bush II, a more full-throated articulation of the same proposition—that state constitutions cannot cabin state legislatures in this arena—garnered the votes of only three Justices and was explicitly rejected by four?
But what about the cryptic language in Blacker mentioned in the Bush opinions? Does/did Blacker truly support the daft notion that, at least for Article II (and perhaps Article I?) purposes, state legislatures somehow float independently of and outside the very state constitutions that created and bounded them? Actually, Blacker’s dictum, fairly read, does not contribute anything meaningful on the question of the “independence” of state legislatures under Article II.
On its facts, Blacker did not in any way involve a conflict between what a state constitution said or a state people wanted, on the one hand, and what the elected legislature preferred, on the other. Instead, the question in Blacker was whether Article II permitted the legislature’s chosen method of selecting electors by means of district-by-district (as opposed to statewide) election. The Blacker Court quite correctly upheld the legislature’s choice in this regard. There was never any claim that the legislature’s enactment conflicted with, or needed to be harmonized with, the state constitution. The only question was whether what the legislature chose was permissible under the federal Constitution. Nor did the case in any way involve an ostensible conflict between the wishes of the legislature and the views of the state judiciary. As such, the case on its facts had nothing—nothing!—to do with the independent state legislature theory.
What’s more, the Blacker Court itself cast strong doubt on the ISL idea when it elsewhere stated in the opinion that “[t]he legislative power is the supreme authority except as limited by the constitution of the State.” This part of Blacker was never quoted, much less explained, by the majority or concurring opinions in the Bush litigation.
In any event, if the case for ISL is to be built on Supreme Court authority, twentieth-century decisions—decisions post-Blacker—strongly undercut ISL.
Consider first the 1916 case of Ohio ex rel. Davis v. Hildebrant. Ohio’s state constitution included a provision that legislative power was vested not only in the state legislature, but also “in the people[,] in whom a right was reserved by way of referendum to approve or disapprove by popular vote any law enacted by the General Assembly.” The Ohio General Assembly passed a redistricting act for congressional elections, and enough persons petitioned for the measure to be subject to voter approval through a referendum. In that referendum, voters rejected the redistricting act. In Hildebrant, the Supreme Court squarely rejected ISL as applied to Article I, which authorizes state legislatures to regulate congressional elections. The Hildebrant Court held that “the referendum constituted a part of the state constitution and laws and was contained within the legislative power and therefore the claim that the law which was disapproved and was no law under the constitution and laws of the state was yet valid and operative, is conclusively established to be wanting in merit.” In other words, a state legislature under Article I is not independent of its state constitution, but is rather bound by it.
Consider next the 1932 case of Smiley v. Holm. The two houses of the Minnesota state legislature had passed a bill dividing the state into nine new congressional districts following a decennial census, but the governor returned the bill without approval. The Minnesota legislature took the position that under Article I, section 4 of the federal Constitution, the governor’s approval was not necessary for the redistricting measure to go into effect. The U.S. Supreme Court disagreed, ruling that ordinarily “the exercise of the authority [to regulate congressional elections] must be in accordance with the method which the State has prescribed for legislative enactments.” Because normal laws in Minnesota were subject to gubernatorial veto under the state constitution, the redistricting measure returned by the governor could not be effective.
Together, Hildebrant and Smiley put the lie to ISL in its strong form. The “legislature” in Article I means “legislative process” as structured by state constitution. (And what is sauce for Article I should also be sauce for Article II.) The three Justices concurring in Bush II (the “Bush three”) championing ISL ideology simply ignored all this (just as they ignored Founding-era understandings and expectations, and state legislative practice), making no mention whatsoever of Hildebrant and Smiley.
Perhaps most importantly, post-Bush cases have built squarely upon Smiley and Hildebrant and have authorized state constitutions to displace state legislatures altogether in certain aspects of congressional elections covered by Article I. In these cases, even conservative Justices have directly rejected the Bush three’s ISL ideas, at least for Article I (and thus, we would argue, for Article II as well). These cases make even more clear that the federal Constitution in general takes state legislatures as it finds them, subject to state constitutional limitations—limitations that that state courts may enforce.
In 2015, the Court decided a landmark case, Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRC). The AIRC Court ruled that Article I allowed the people of Arizona, via their state constitution, to do congressional redistricting through an independent redistricting commission created by a popular initiative—a commission not controlled by the ordinary state legislature.
Poetically, Arizona voters had passed the initiative in question—Proposition 106—in November 2000, the very same day as the presidential election that led to Bush. Arizona’s legislature argued that Article I prevented the state from giving the power to draw congressional districts to an entity distinct from the ordinary state legislature itself.
In rejecting this ISL argument, the AIRC majority opinion penned by Justice Ruth Bader Ginsburg relied extensively on Hildebrant and Smiley, and in the process strongly undercut the ISL logic of the Bush three. One alumnus of the Bush majority actually joined the Court’s opinion, albeit a Justice who had never squarely endorsed the Bush concurrence: Anthony Kennedy.
The AIRC majority opinion made emphatically clear that when the U.S. Constitution refers to a state “Legislature” in the context of a provision calling for state lawmaking, the word “Legislature” means a state lawmaking process as prescribed by the state constitution. It’s hard to imagine language that more plainly repudiates the core ISL idea than the language used by the AIRC Court: “Nothing in [Article I] instructs, nor has this Court ever held, that a state legislature may [regulate] the . . . manner of holding federal elections in defiance of provisions of the State’s constitution.”
If “Legislature” in Article I means “legislature free to do what it wants unconstrained by state constitutions,” AIRC could not have come out the way it did. Full stop.
AIRC was a 5-4 ruling, decided over the dissents of the Court’s conservative wing. But in 2019, all the Court’s conservatives then on the Court also embraced AIRC in a case about partisan gerrymandering of congressional districts, Rucho v. Common Cause. Chief Justice John Roberts, who had dissented in AIRC, wrote for the majority in Rucho. In direct opposition to ISL theory, the Chief Justice’s opinion blessed state constitutional constraints enforced by state courts against state legislatures in congressional elections. This opinion directly built upon AIRC’s key holding by pointing approvingly to measures in Michigan and Colorado that were in all relevant respects identical to the Arizona initiative measure at issue in AIRC. The opinion also blessed anti-ISL developments in Florida, of all places!
The Chief Justice’s remarkable language is worth savoring: “[We do] not condone excessive partisan gerrymandering. Nor does our conclusion [to limit the federal judicial role in controversies over congressional gerrymandering] condemn complaints about districting to echo into a void. The States . . . are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution. League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (2015). . . [And] in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts. See Colo. Const., Art. V, §§44, 46; Mich. Const., Art. IV, §6.”
Note that this passage expressly mentioned that Michigan’s and Colorado’s constitutional provisions applied not just to state legislative districting, but also to congressional districting under Article I. Note also that this key passage expressly endorsed both the right of the Florida Constitution to constrain the Florida legislature, and the right of the Florida Supreme Court to interpret and implement that state constitution—even to the point of invalidating an enactment of the Florida state legislature. This Rucho passage was thus a square repudiation of ISL—both prongs. And much of this passage was, to repeat, all about federal elections in Florida as regulated by the Florida Supreme Court using the Florida Constitution to trump the Florida legislature. Take that, Bush three! Justices Thomas, Alito, Gorsuch, and Kavanaugh all joined this passage in full.
Given the Rucho Court’s (unanimous on this point) blessing of the Florida Supreme Court’s ruling in Detzner, one might wonder how proponents of ISL in the North Carolina and Pennsylvania disputes deal with this avalanche of precedent against them. The short (and embarrassing, to them) answer is that they don’t – they don’t mention, much less deal with, any of this directly. But they do make a few arguments that might be understood to implicitly try to distinguish AIRC, Rucho and Detzner, none of which holds water but many of which I’ll discuss in the next installment in this series.