In my last four columns, I have analyzed the so-called Independent State Legislature (SIL) theory regarding Articles I and II of the Federal Constitution. The theory holds that because Article I (concerning congressional elections) and Article II (concerning the selection of presidential electors) both refer to state “legislatures”, these elected legislatures are free, when are congressional elections and presidential selection, disregard generally applicable state constitutional constraints, and that federal courts are free to challenge state courts on the meaning of state law in this domain. Republicans in North Carolina and Pennsylvania recently invoked this theory when they asked the US Supreme Court to overturn the actions of the state supreme courts in those two states regarding the redistricting of Congress. As I explain in previous parts and in more depth in a co-authored article (with Akhil Amar) viewable on SSRN here, ISL theory is deeply flawed and unconvincing when it comes to original understandings (see part one ), the actions and intentions of the state legislatures themselves, and recent Supreme Court jurisprudence (see Part Two).
Yesterday the Court rejected requests for emergency aid in 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 are making 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 must be resolved. He did not indicate that he believed the North Carolina plaintiffs had a winning ISL case, saying only that “both parties made serious arguments on the merits.”
While I disagree with the four judges who apparently believe that both sides are making serious arguments, I agree (as Akhil and I write in our article) with them that the Court should grant consideration in an appropriate case to address (and we think forcefully reject) the ISL issue on its merits.
Certainly, there is no recent and clear conflict between the federal appeals courts on ISL, and in fact there is no decision of the United States Court of Appeals (at least none that I know of and none that plaintiffs cite in North Carolina) whose holding is based on an ISL embrace. Petitioners to the Court in the North Carolina case erroneously suggested that the United States Court of Appeals for the Eighth Circuit “held” in 2020 that the theory required the Secretary’s invalidation of actions of Minnesota, but as I have demonstrated in Parts Three and Four of this series, the Eighth Circuit has ruled only that the challengers to the Secretary’s actions have shown sufficient likelihood of success on their claim to obtain an injunction. preliminary; such an Eighth Circuit ruling is not a ruling on the merits of the ISL claim, even though it suggests that two Eighth Circuit judges (the panel fell 2-1) tipped based on the briefing limited before them at that time adopt ISL theory.
Yet there are long-standing cases of state supreme courts (e.g., Nebraska) embracing and relying on ISL notions to dismiss state constitutional challenges to state election laws that govern federal elections, and these cases conflict with more recent rulings by several other state supreme courts (e.g., Colorado, Florida, Pennsylvania, and Colorado) that outright reject ISL’s limitations on the judicial application by the State of the constitutional norms of the State in the context of federal elections. So there is a conflict between the supreme courts of the states, even if it has persisted for some time.
But far more important than the lower court divisions over the ISL theory has been the attention to the ISL sparked by the writings of four judges from the Court itself in the weeks leading up to or following the presidential election. of 2020. Based on the arguments put forward in the Bush versus Gore 2000 litigation, Justices Kavanaugh, Thomas, Alito, and Gorsuch all appeared to flirt with ISL theory (though not all at the same time and by no means decided on the merits) in a handful of disputes involving the Trump-Biden presidential contest. Tellingly, none of these four justices have ever engaged in any of the arguments based on original agreements or recent Supreme Court cases dealing with the viability of ISL. Yet they nevertheless signaled the adoption of the theory. Judge Kavanaugh, who was the first judge in 2020 to invoke ISL ideas, was somewhat representative of the four when he said, in a case in federal court in Wisconsin in late October 2020:
A federal court’s amendment of a state’s election laws, such as Wisconsin’s, differs in some respects from a state court’s (or state agency’s) amendment of a state’s election laws. That said, under the US Constitution, state courts do not have a blank check to rewrite state election laws for federal elections. Article II expressly provides that the rules relating to presidential elections shall be established by the states “in such manner as their legislature may direct”. §1, cl. 2 . . . The text of Article II means that “the clearly expressed intention of the legislature shall prevail” and that a state court cannot deviate 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 rulings regarding state law in a federal presidential election “does not imply disrespect for state courts, but rather a respect for the constitutionally mandated role of state legislatures.To give final weight to the decision of a state court, when the very question at issue is whether the court has in fact departed from the meaning of the law, 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 should be noted that Judge Kavanaugh, after offering these provocative reflections, did not subsequently join Judges Thomas, Alito and Gorsuch in their deeper articulation and endorsement of the ISL in other cases shortly before. and after the 2020 election, just as he bears noting that Justice Kavanaugh did not join the other three yesterday.
Here’s something else that’s interesting (and a bit surprising): While some judges seem to be embracing ISL reasoning despite the Court’s recent rulings and founding history, judges who seem to disagree have been pretty quiet in their response. Here, for example, is what (and everything) Judge Kagan had to say in response to Judge Kavanaugh in the Wisconsin case in 2020:
At the same time as Justice Kavanaugh defends this position by decrying a “view of the federal judges who know election administration best”, he calls for greater involvement of the Federal Court in “reviewing the decisions of the courts of State concerning the State”. [election] It is difficult to know how to reconcile these two views on the role of federal justice in suffrage cases. Contrary to Judge Kavanaugh’s attempted explanation, neither the text of the election clause nor our precedent interpreting it does not lead to its inconsistent approach See Arizona State Legislature v. Arizona Independent Redistricting Community, 576 US 787, 817–818 (2015);Smiley v. Holm, 285 US 355, 372 (1932).
Judge Kagan’s remarks are the epitome of understatement. The key point is not simply that neither the constitutional text nor the Court’s precedents lead to the approach described by Justice Kavanaugh. The fact is that the text (in the historical context) and the precedent (including Rucho c. Common cause, which Justice Kavanaugh joined) emphatically reject and refute the approach. One would think that, as several judges appeared to be about to replay the Bush versus Gore nightmare, there would have been a greater sense of urgency and a more solid explanation of the case law just how wrong this would be.
Given the instability and lack of clarity generated by the justices themselves over the past 18 months, the Court should – in the right case, be far enough ahead of an upcoming election and in which the theory of ISL is clearly laid out – give a review and put the ISL notions to rest, once and for all, to avoid any further harm that ISL reflections might cause.
And even if the North Carolina and Pennsylvania cases aren’t the right ones to address the issue, Judge Kagan and others should use those claims as opportunities to explain how constitutionally weak the ISL’s arguments are. convincing, even perverse. Yesterday, for example, it would have been easy enough for Judge Kagan to write an opinion concurring with the denial of the stay request in North Carolina, saying that she fully agreed with Judge Kavanaugh that a stay in this case was not justified, but explaining (by reference to specific documents provided in the memoirs and in the university scholarships) why she does not really see serious arguments on both sides. I understand that there are internal dynamics and politics within the Court, but when one side makes its case in public writings and the other (much stronger) does not, especially for a question that does not go away, the public is not well served.