It seems the Supreme Court will soon decide whether to grant review in the very significant case in which Republican challengers argue that the North Carolina Supreme Court overstepped federal constitutional bounds when it invalidated—as being inconsistent with the state constitution’s prohibitions on excessive partisanship—the congressional districting done by the North Carolina elected legislature. Earlier this spring the Court denied the Republicans’ Application for emergency relief, but at that time four Justices indicated they thought the underlying legal questions presented were worthy of review. Those questions revolve around whether the provision in Article I, section 4 of the U.S. Constitution, to the effect that the “Times, Places and Manner of [congressional elections] shall be prescribed in each state by the Legislature thereof,” prohibits state courts—because they are not state “legislatures”—from enforcing state constitutional limits in the congressional-election setting, and from implementing remedies that involve district drawing by the state courts themselves. The theory that state legislatures are, when they regulate federal elections, immune from state constitutional limits enforceable by state courts is known generically as the “Independent State Legislature” (ISL) notion. I have written about the North Carolina case on this website in detail. (Here is the last installment of a series of columns written during the emergency-application phase, with each installment linking to earlier ones.) But my thinking about ISL goes well beyond, and started well before, the North Carolina case. In 2020 I began work on a comprehensive law review article (now co-authored with Akhil Amar) that is due out any week in The Supreme Court Review. And this article in turn builds on, among other things, work I undertook on ISL more than two decades ago. Indeed, a William & Mary Law Review essay I wrote in 1999 and published in early 2000 (well before the Bush versus Gore election and litigation made ISL notions more salient) was, as far as I can tell, the first law review piece to use the phrase “independent legislature” or “independent state legislature” in this setting.
The reason I surmise that Supreme Court action in the North Carolina matter is coming shortly is that the request for full review, or Petition for a Writ of Certiorari (known as a “cert. petition”), which Republicans filed after their emergency Application was rejected, is now ready for the Court’s consideration. Just last Friday the cert. Petitioners submitted their last brief (the so-called Reply brief) in support of a grant of review. So while it’s possible that the Court will sit on the petition for a while (or request and then wait for the views of the U.S. Solicitor General, who obviously has an interest on behalf of the United States in seeing to it that the provisions of the U.S. Constitution concerning federal elections are properly understood), the higher likelihood is that the Justices will decide whether to grant full review in the case before the Court winds down the October 2021 Term in late June or early July. And if the Court does take up the case (which seems like a decent bet), then the case will be fully briefed this summer and argued sometime this fall, with a decision due out in 2023.
If review is granted, there will of course be time for additional commentary, but for now let me highlight one aspect of the Reply brief filed last week that continues to be disappointing. I’m not surprised by the bottom-line position the cert. Petitioners take; they are, of course, seeking to obtain a particular result that they desire. But the quality of lawyering and argumentation leaves much to be desired. For one thing, the Reply brief continues to mischaracterize relevant lower court cases and recent Supreme Court precedents in ways that I discussed in an earlier column. But today let me focus not on cases but on the Constitution itself.
The Originalist Question: Text and History
One of the three independent arguments (focusing on original understandings, the actions of state legislatures themselves, and clear and controlling recent Supreme Court precedent) that Akhil and I make in our forthcoming article is based on text and history, namely, that the word “legislature” as used in Articles I and II of the Constitution does not mean “independent legislature” but instead means “legislature subject to whatever definitions and limitations are placed on it under the state’s constitution.” This latter meaning is confirmed by looking at other parts of the Constitution, as well as by the actions of states, both immediately before and immediately after the founding, In other words, the ISL theory fails simply because the central word ISL proponents rely on—the “L”—doesn’t mean what they think it means.
The Petitioners’ Reply brief seeks to address the question of constitutional text, but does so pretty feebly. To be fair, at the cert. stage parties have only so many pages to devote to the merits, as distinguished from the cert-worthiness, of the dispute, but even by these standards the Reply brief is unimpressive.
Never mind that the Reply brief never engages the historical understanding (that Akhil and I go through in detail) that state “legislatures” at the Founding were understood and defined to be entities limited by state constitutions and subject to judicial review by state courts. (And that judicial review under state constitutions predated the federal Constitution.) Never mind that the Supremacy Clause of the U.S. Constitution itself recognizes, in its rank order, that state constitutions are supreme over state statutes. Never mind that ISL proponents haven’t adduced any evidence that anyone at the Founding (forget mid-19th century materials, which have no strong relevance to original public meaning in 1787) understood or discussed state legislative powers concerning federal elections to be plenary and not subject to state constitutions. (The absence of such Founding-era discussions would be pretty bizarre if the term “legislature” was used in a way other than its ordinary “legislature as created and defined by state constitutions” way.) And never mind that both just before 1787, under the Articles of Confederation (which also used the term “legislature” of the states), and shortly after 1787, state constitutions explicitly regulated federal elections and did not leave the matter to state legislatures.
Never mind all of that. ISL proponents aren’t even showing any real care in parsing the words of the clauses of the Constitution they purport to rely on. In their Reply brief, petitioners say Article I (governing congressional elections) and Article II (concerning presidential elections) feature the same operative text. Invoking lower court cases from Article II, the petitioners say that “[r]espondents provide no reason why the Electors [Article II] and Elections [Article I] Clauses—which are identically worded in all relevant respects—should be interpreted differently.”
Petitioners’ stance in treating Articles I and II identically tracks what Justices Alito, Thomas, and Gorsuch did when they dissented from the denial of the Application for a stay: They framed the question in terms of state judicial power to reject “rules adopted by a state legislature for use in conducting federal elections” generally (my emphasis), and cited, as evidence that the Court has been looking for a chance to address “the issue” (again, my emphasis), cases from 2000 and 2020 involving presidential elections, even though the North Carolina dispute before them involved congressional districting. They go on to say, as do petitioners, that Article I’s language is dispositive. The three Justices observed that Article I “could” have said that times, places, and manners are to be prescribed “by each State.” The latter words (“by each state”) would (according to the three Justices) have left it up to each State to decide which state organs get to do the regulating.
But Petitioners (and Justices Alito, Thomas, and Gorsuch) would be advised to read more carefully before they write: Article II (whose meaning they say tracks Article I’s) does (to answer what the Justices Alito, Thomas, and Gorsuch observed) confer responsibility onto “each state.” With respect to presidential electors, Article II provides that “[e]ach state shall appoint, in a manner the legislature thereof may direct, [a set of electors].” Note that, unlike the text of Article I, the subject of the sentence here is each state, not the legislature thereof. That is, “each state”—not each state “legislature” — is the entity empowered and obligated to do the appointing of electors. To be sure, as to the manner of such appointment, Article II does mention “legislatures,” but says only that state legislatures “may” direct such manner, not that state legislatures “shall” or “must” or “will” direct the manner. Contrast that with Article I’s requirement that “each state shall appoint. . .” The words of Article II by their very terms (even if “legislature” means “unconstrained” or “independent” legislature) thus do not require that the state legislature be the body that adopts presidential selection regulations at all; instead, Article II’s language makes clear that, as far as the federal Constitution is concerned, it is perfectly permissible in a given state for a body other than the legislature to be the one that directs the manner of presidential-elector selection.
If the Petitioners (and various Justices) are, in the absence of any serious or historical originalist arguments, going to fixate on the textual use of “legislature” in Article I, then they must also attach great significance to the fact that Article II empowers—textually and technically—“each state” and not each state’s legislature, and says only that it is permissible, not mandatory, that state legislatures be involved at all (through the use of the word “may” rather than “shall” or “must”).
To put the point another way, if the Petitioners find it important that Article I does not say “the Times, Places and Manner of [Congressional Elections] are to be prescribed by each state,” so too they must find it important that Article II does not say “the Manner of appointing presidential Electors in each state shall be directed by the legislature thereof.”
To be clear, I’m not saying that ISL theory works for Article I but not for Article II. It doesn’t work for either (for the three big reasons Akhil and I point out). I’m simply saying that ISL notions certainly don’t work for Article II under the textual approach employed by the Petitioners, and yet Petitioners have yoked the meaning of the two Articles together and already indicated embrace of ISL in both. Indeed, if ISL fails for Article I, it must, a fortiori, fail for Article II. And if ISL is embraced for Article I, it could only be done so based on some non-originalist, non-precedentialist, textual hyper-obsession with the word “legislature” as it appears in Article I’s phraseology. But if that is the case, then ISL must fail for Article II because a similar hyper-technical parsing of text cuts the other way for Article II (“may” not “shall” being the helping verb and “each state” being the subject of the sentence).
And how strange would a reading of the U.S. Constitution be if it permitted state constitutions to regulate state elections (as everyone agrees is true) and to regulate presidential elections (under Article II), but not congressional elections (under Article I). This even though every state uses the same ballot for all three sets of contests. And yet this is what even the most charitable reading of ISL “textualism” (if one can even call interpreting words without reference to historical context textualism at all) would bring us.
That is, unless ISL proponents simply make up the meaning of Article II without regard to its words (or historical context). But surely a Court so critical of Roe v. Wade couldn’t do that.