In this series of columns, I have been analyzing the so-called Independent-State-Legislature (ISL) theory regarding federal congressional and presidential (s)election processes provided for in Articles I and II of the U.S. Constitution. According to the theory, because Articles I and II refer to state “legislatures,” these elected legislatures are free to disregard generally applicable state constitutional constraints, and federal courts are free to second-guess state courts on the meaning of state law in this arena. As I have noted, Republicans in North Carolina (and Pennsylvania too) have been invoking the theory over the last few weeks to challenge state court rulings that rejected (and replaced) congressional district lines drawn by the state legislatures. As my co-author (Akhil Amar) and I discuss in an Article forthcoming in The Supreme Court Review (a draft of which is available on SSRN here), recent attention concerning ISL theory may have been generated by members of the Supreme Court itself; four Justices, drawing on arguments advanced in the Bush v. Gore litigation of 2000, seemed to flirt with ISL 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. Part One of this series explained how ISL theory runs afoul of Founding-era understandings and expectations concerning what state legislatures were and how (non)independent these legislatures were. Part Two detailed the line of Supreme Court precedent going back more than a century rejecting ISL premises, at least in federal election contexts (as distinguished from other places the Constitution refers to state “legislatures”), including Davis v. Hildebrandt (1916), Smiley v. Holm (1932) and Arizona Elected Legislature v. Arizona Independent Redistricting Commission (2015), and culminating in the 2019 decision in Rucho v. Common Cause. In Part Three I discussed how the ISL proponents, both the Justices who opined on the matter in 2020 and the North Carolina Applicants in their opening papers requesting relief from the Court, dealt (or did not deal) with the kinds of arguments Akhil and I have raised. In the space below, I continue to look at the arguments the North Carolina Applicants raise, focusing specifically on what they say in their Reply filed at the Court late last week.
Applicants understandably try to cover a lot of ground in their Reply, but for present purposes I will focus on three big arguments they advance.
Does the Federal Constitution Assume State Constitutions Are Supreme Over Ordinary State Legislative Enactments?
Applicants first contend a state constitution cannot constrain a state legislature in this context because it was the federal Constitution, rather than any state constitution, that empowered the state legislature to have a role in federal elections at all. As Applicants put the point: “[O]nly the federal constitution can limit the exercise of [state legislative] power” in congressional elections, since “the power to regulate congressional elections is granted to the States by the federal constitution, not any state constitution.” (Emphasis is Applicants’.)
But the observation that state power to regulate federal elections did not exist before the federal Constitution created and conferred it does not advance the inquiry much because the observation does not address the key question of what the federal Constitution meant by “legislature” of the state when the power was conferred. In other words, does the federal Constitution take state legislatures as it finds them—subject to procedural and substantive limitations arising from the state constitutions that created and enabled those state legislatures in the first place—or does it take existing state legislatures and then affirmatively free them, in this realm only, from limits that would otherwise apply?
Resort to founding history and ideology makes clear that the federal Constitution’s provisions (including Articles I and II) reflect an understanding that state constitutions are supreme over ordinary state legislative enactments. What Akhil and I have explained warrants repeating here:
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 state constitutions were universally understood as creations of the American people themselves. So of course state constitutions were understood [by the Founders] 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. [And] [n]otable state judicial review under state constitutions in fact predated the Philadelphia Convention, Federalist No. 78, and Marbury v. Madison.
Moreover, and perhaps most important, the straightforward language and logic of the federal Constitution itself—in Article VI’s Supremacy Clause—devastate the North Carolina Applicants’ position here, by making textually clear that, for federal constitutional purposes, state constitutions enjoy supremacy over mere state statutes. The Supremacy Clause does this in the very same breath that the Clause similarly affirmed the supremacy of the federal Constitution over mere federal statutes. Again, to reiterate what we have said:
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.
And this reading, which accounts for the order of the types of laws listed in the Supremacy Clause by reference to the democratic pedigree of each (the national Constitution being the most democratic given its special ratification processes across the country, and a state statute being the least democratic since it is not necessarily ratified even by the people of the state), is not just Akhil’s and mine. No less than John Marshall, who may have personal historical baggage but whose interpretive prowess in giving meaning to the Constitution cannot easily be questioned, pointedly reminded everyone in Marbury that the sequence presented in the Supremacy Clause matters, when he attached significance to the fact that the Constitution came first, before later-mentioned and lower-level types of law.
Thus, and in direct opposition to ISL theory, the very Constitution that (in Articles I and II) authorizes state legislatures also recognizes state constitutions as supreme over the legislatures’ enactments.
What Can We Learn from State Constitutional Adoptions and Amendments Shortly After the Federal Constitution Was Created?
The North Carolina Applicants must also try to deal with the fact that a majority — four of the six, actually—of 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 legislatures. Certainly on the face of things it would be hard in light of this history to argue that the people of the states who adopted or revised these state constitutions understood that state legislatures would operate independently from state constitutional constraints here.
Applicants’ rejoinder is that because in three of those four state constitutions, the state constitutional language did not single out federal elections by name but instead regulated “all elections,” the best reading of these constitutions is that they applied to state elections only.
The problem with that, apart from the fact that is isn’t the best reading of the word “all,” is that other historical evidence contradicts that reading. As Hayward Smith, whose historical work in this area is impressive and important, points out, states knew how to refer only to state elections when that is what states intended their constitutions to regulate. Delaware did just that in its 1792 constitution. Moreover, as Smith explains, in Pennsylvania, one of the four states that used the word “all,” there was explicit discussion of whether “all” included federal elections:
William Findley was a delegate to the Pennsylvania constitutional convention in 1789-90 and a member of the nine-member committee which reported the first draft of the constitution, which included the “all elections shall be by ballot” provision. Findley later served in House of Representatives and was the chairman of [a committee that] made a report to the House in the contested election case of John Hoge of Pennsylvania. In defending the committee’s report in the Hoge matter to the full House, Findley, who rightfully claimed a special “acquaintance” with “the laws and practice respecting elections” in Pennsylvania, made clear that the state constitution’s “all 174 elections shall be by ballot” provision was intended to apply to Congressional elections.
So, in Pennsylvania (and Delaware, where the state constitution expressly sought to regulate federal elections directly), and in the other two states that used the term “all” elections, Applicants cannot simply wish away this Founding-era evidence against them. And, crucially, they adduce no meaningful Founding-era evidence on the other side, to support them, which is unsurprising given the general understandings of how state constitutions were supreme over state legislatures.
Depends on What the Meaning of “Pending” Is
The third of Applicants’ arguments I address here is the weakest—so weak as to be, to my mind, frivolous. They seek to respond, as they must, to the fact that, in direct contradiction to ISL theory, the Chief Justice’s 2019 opinion in Rucho v. Common Cause blessed state constitutional constraints enforced by state courts against state legislatures in congressional elections. The passage I’m talking about here 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 discussion in Rucho was thus a square repudiation of ISL—both the part of ISL that holds state constitutions don’t bind state legislatures and the part that holds federal rather than state courts interpret and implement state law in this domain. This section in Rucho built directly upon the Court’s key holding four years earlier in Arizona Elected Legislature v. Arizona Independent Redistricting Commission (AIRC), and indeed pointed approvingly to measures in Michigan and Colorado that were in all relevant respects identical to the Arizona initiative measure at issue in AIRC, a measure that entirely displaced the elected state legislature from congressional districting.
Here is what the Court said in Rucho (and I apologize for the length of the passage but one must see it in its fullness to evaluate the Applicants’ response to it):
[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.
Other States have mandated at least some of the traditional districting criteria for their mapmakers. Some have outright prohibited partisan favoritism in redistricting. . . .
As noted, the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause. The first bill introduced in the 116th Congress would require States to create 15-member independent commissions to draw congressional districts and would establish certain redistricting criteria, including protection for communities of interest, and ban partisan gerrymandering. H. R. 1, 116th Cong., 1st Sess., §§2401, 2411 (2019).
Dozens of other bills have been introduced to limit reliance on political considerations in redistricting. In 2010, H. R. 6250 would have required States to follow standards of compactness, contiguity, and respect for political subdivisions in redistricting. . . .
Another example is the Fairness and Independence in Redistricting Act, which was introduced in 2005 and has been reintroduced in every Congress since. That bill would require every State to establish an independent commission to adopt redistricting plans. . . . H. R. 2642, 109th Cong., 1st Sess., §4 (referred to subcommittee).
We express no view on any of these pending proposals. We simply note that the avenue for reform established by the Framers, and used by Congress in the past, remains open.
What do the Applicants do with this, especially the first (key) paragraph that blessed action (by the Florida Supreme Court) similar to that taken by the North Carolina Supreme Court? One could argue that the Court’s discussion of state innovation here is in fact dicta, inasmuch as the Court’s bottom-line in Rucho (that federal courts need stay out of this business) might not have depended on whether, as a result of the Court’s decision, complaints about partisan gerrymandering would or would not be destined to echo into a void. But given the “softness” of the so-called “political question” doctrine in the federal courts that the Court purported to invoke in Rucho, one might believe instead that the existence vel non of alternative state-constitutional and state-court solutions could have been relevant to the Court’s outcome.
The Applicants do not develop either side of that argument in any detail. Instead, focusing on the first sentence of the very last paragraph—the one that says the Court “express[es] no view on any of these pending proposals”—the Applicants spend more ink arguing that references to innovation by states do not matter because
the Court itself declared that the [entire] passage was dicta. After floating around these potential routes for curbing partisan gerrymandering, including the passage [on state courts and enforcement of state constitutions] cited by Respondents, the Court expressly said “[w]e express no view on any of these pending proposals. . . It is hard to see how [this passage helps Respondents] . . .when the [Court] avowedly ‘expressed no view’ on the matter.” (Emphasis is Applicants’.)
Seriously? Could anyone think the Justices are so unable to read their own opinions or are that result-oriented so as to buy this? The Rucho Court did not say it “expressed no view” on any generic “matter”; the Court said it expressed no view on “these pending proposals.” That is a clear reference to the congressional proposals (that have not passed both houses of Congress or been signed by the President and are thus pending) described in the three paragraphs directly preceding the last one, not a reference to the state-court and state-constitutional empowerment discussed much earlier. That my reading is right is made even more clear by the sentence that follows the “[w]e express no view” language. The next sentence refers to “the avenue for reform . . . . used by Congress in the past” (my emphasis), not to the kind state-law reforms that had been validated several paragraphs earlier in the passage. Indeed, in what sense did the Florida Detzner case or the Colorado or Michigan state constitutional amendments that were cited approvingly involve “pending proposals” of any kind? There was nothing pending in those three states in 2019, or at least nothing pending that the Court mentions.
Unpersuasive argumentation is par for the course in litigation—after all, on each issue only one side can have arguments that carry the day. But the treatment of Rucho’s language in the Applicants’ Reply here falls well below unpersuasive argument—it constitutes sub-standard, even shoddy, lawyering that reflects poorly on, and undermines the credibility of, the Applicants’ lawyers.
In this regard I should note that the mischaracterization of the 2020 ruling by the U.S. Court of Appeals for the Eighth Circuit in Carson v. Simon in the Applicants’ opening stay papers that I discussed in Part Three remains quite troubling, and that the Applicants’ Reply papers carelessly (or worse) double down on the misrepresentation, saying repeatedly that the Eighth Circuit in Carson “squarely held” that state legislatures’ plenary authority (under Articles I and II) “is such that it ‘cannot be taken from them or modified’ even through ‘their state constitutions.’” The Eighth Circuit held no such thing. The Eighth Circuit held only that the challengers in that case had established a sufficient likelihood of success with respect to their claim regarding state legislative power that a preliminary injunction in their favor was appropriate. But likelihood-of-success determinations in preliminary-injunction settings are not (and are not considered to be) holdings on the merits, because preliminary-injunction briefing and argument processes are truncated, and this feature makes views expressed by courts in this setting less trustworthy and more tentative. As the Supreme Court has itself explained, “[t]he purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits,” . . . [and for this reason] “conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.” If such preliminary conclusions don’t reflect a final judgment in the case in which they are offered, a fortiori they do not reflect a final judgment on the ultimate questions presented that creates binding law for the circuit in later cases.
So the Eighth Circuit ruling in Carson, however important it might have been as a practical matter to the litigants in that case, did not embody a final ruling on the merits, and thus cannot create a true conflict with the ruling of another appellate court for purposes of warranting the U.S. Supreme Court’s exercise of certiorari jurisdiction. To be sure, the Court can grant review if it wants to even in the absence of a true and square conflict, but experienced and honest advocates in front of the Court certainly should know—and respect—the difference between a preliminary-injunction determination and a final ruling on the merits, and should not try to mislead the Court by suggesting the latter is present when only the former is. (It appears that at least some of the Respondents—those folks opposing the North Carolina stay Applicants—failed to seize on the Applicants’ mischaracterization of Carson in the stay Opposition papers.)
