Over the course of my last four columns, I have been analyzing the so-called Independent-State-Legislature (ISL) theory concerning Articles I and II of the federal Constitution. The theory holds that because Article I (as to congressional elections) and Article II (as to presidential-elector selection) both make reference to state “legislatures,” these elected legislatures are free, when it comes to congressional elections and presidential selection, to disregard generally applicable state constitutional constraints, and that federal courts are free to second-guess state courts on the meaning of state law in this domain. Republicans in North Carolina and Pennsylvania have recently invoked this theory in asking the U.S. Supreme Court to undo actions by the state supreme courts in these two states concerning congressional redistricting. As I explain in the earlier Parts and in more depth in a co-authored article (with Akhil Amar) viewable on SSRN here, ISL theory is deeply flawed and unconvincing as a matter of original understandings (see Part One), the actions and intentions of state legislatures themselves, and recent Supreme Court case law (see Part Two).
Yesterday the Court denied the Applications for emergency relief in both the North Carolina and Pennsylvania cases, with Justices Alito, Thomas, and Gorsuch publicly dissenting in the North Carolina case. In explaining why they would have granted relief in North Carolina, they said “both sides advance serious arguments, but based on the briefing [they] have received, [their] judgment is that the applicants’ argument is stronger.”
Justice Kavanaugh voted to deny the stay in the North Carolina case but agreed with Justices Alito, Thomas, and Gorsuch that the issue raised is important and needs resolution. He did not indicate he thought the North Carolina Applicants had a winning ISL argument saying only that “both sides have advanced serious arguments on the merits.”
While I don’t agree with the four Justices who apparently believe that both sides advance serious arguments, I do agree (as Akhil and I write in our paper) with them that the Court should grant review in an appropriate case to address (and we think forcefully reject) the ISL issue on the merits.
To be sure, there is no recent, clear conflict among the federal courts of appeals on ISL, and in fact there is no U.S. Court of Appeals ruling (at least none I am aware of and none that the North Carolina stay Applicants cite) whose holding is based on an embrace of ISL. The Applicants to the Court in the North Carolina case misleadingly suggested that the U.S. Court of Appeals for the Eighth Circuit “held” in 2020 that the theory required invalidation of actions by the Minnesota Secretary of State, but as I have demonstrated in Parts Three and Four of this series, the Eighth Circuit held only that the challengers to the Secretary’s actions had shown a sufficient likelihood of succeeding on their claim to obtain a preliminary injunction; such a ruling by the Eighth Circuit is not a ruling on the merits of the ISL claim, even if it suggests two Eighth Circuit judges (the panel broke down 2-1) were inclined based on the limited briefing in front of them at that time to embrace ISL theory.
Yet there are some old cases from state supreme courts (for example, Nebraska) that do embrace and rely on ISL notions to reject state-constitutional challenges to state election laws that regulate federal elections, and those cases do conflict with more recent rulings from several other state supreme courts (e.g., Colorado, Florida, Pennsylvania, and Colorado) that flatly reject ISL limitations on state judicial enforcement of state constitutional norms in the federal-election setting. So there is a conflict among state supreme courts, albeit one that has persisted for a while.
But much more important than lower court splits on ISL theory has been the attention to ISL stirred up by the writings of four Justices of the Court itself in the weeks leading into or ensuing from the 2020 presidential election. Drawing on arguments advanced in the Bush v. Gore litigation of 2000, Justices Kavanaugh, Thomas, Alito, and Gorsuch all seemed to flirt with ISL theory (albeit not all at the same time and not in any case decided on the merits) in a handful of disputes involving the Trump-Biden presidential contest. Revealingly, none of these four Justices ever engaged any of the arguments based on original understandings or recent Supreme Court cases bearing on ISL’s viability. Yet they nonetheless signaled embrace of the theory. Justice Kavanaugh, who was the first Justice in 2020 to invoke ISL ideas, was somewhat representative of the four when he said, in a federal-court case from Wisconsin in late October 2020:
A federal court’s alteration of state election laws such as Wisconsin’s differs in some respects from a state court’s (or state agency’s) alteration of state election laws. That said, under the U. S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections. Article II expressly provides that the rules for Presidential elections are established by the States “in such Manner as the Legislature thereof may direct.” §1, cl. 2 . . . The text of Article II means that “the clearly expressed intent of the legislature must prevail” and that a state court may not depart from the state election code enacted by the legislature. . . . As Chief Justice Rehnquist explained [in a concurring opinion] in Bush v. Gore, the important federal judicial role in reviewing state-court decisions about state law in a federal Presidential election “does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II.”. . . [T]he text of the Constitution requires federal courts to ensure that state courts do not rewrite state election law.
It bears noting that Justice Kavanaugh, after offering these provocative musings, did not subsequently join Justices Thomas, Alito, and Gorsuch in their more full-throated articulations and endorsement of ISL in other cases shortly before and after the 2020 election, just as it bears noting that Justice Kavanaugh did not join the other three yesterday.
Here’s something else that is interesting (and a bit surprising): Even as some Justices seem to embrace ISL reasoning notwithstanding recent Court rulings and founding history, Justices who seem to disagree have been quite muted in their response. Here, for example, is what (and all) Justice Kagan had to say by way of response to Justice Kavanaugh in the Wisconsin case in 2020:
At the same time that Justice Kavanaugh defends this stance by decrying a “federal-judges-know-best vision of election administration,” he calls for more federal court involvement in “reviewing state-court decisions about state [election] law.” It is hard to know how to reconcile those two views about the federal judiciary’s role in voting-rights cases. Contrary to Justice Kavanaugh’s attempted explanation, neither the text of the Elections Clause nor our precedent interpreting it leads to his inconstant approach. See Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. 787, 817–818 (2015); Smiley v. Holm, 285 U.S. 355, 372 (1932).
Justice Kagan’s remarks are the epitome of understatement. The key point is not merely that neither the constitutional text nor the Court’s precedents lead to the approach Justice Kavanaugh described. The point is that text (in historical context) and precedent (including Rucho v. Common Cause, which Justice Kavanaugh joined) emphatically reject and refute the approach. One would think that as multiple Justices seemed to be on the verge of replaying the Bush v. Gore nightmare, there would have been a greater sense of urgency and a more robust explanation of just how jurisprudentially wrongheaded that would be.
Given the instability and lack of clarity generated by the Justices themselves in the last 18 months, the Court should—in the right case that is far enough in advance of an upcoming election and in which ISL theory is cleanly presented—grant review and put ISL notions to rest, once and for all, to avoid any additional mischief the ISL musings might cause.
And even if the North Carolina and Pennsylvania cases are not the right ones in which to take the issue up, Justice Kagan and others should be using these Applications as opportunities to elaborate on how constitutionally unpersuasive—even perverse—ISL arguments are. Yesterday, for example, it would have been quite easy for Justice Kagan to write an opinion concurring in the denial of the North Carolina stay application, saying she fully agreed with Justice Kavanaugh that a stay in this case was not warranted, but explaining (by reference to specific materials provided in the briefs and in academic scholarship) why she doesn’t actually see serious arguments on both sides. I well understand that there are internal dynamics and politics within the Court, but when one side lays out its case in public writings and the other (much stronger) side does not, especially for an issue that is not going away, the public is not well served.