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The Legal Trick That Could Undermine the 2024 Election—If the Supreme Court Doesn’t Shut It Down

7 minute read
Vikram D. Amar is dean and a professor of law at the University of Illinois at Urbana-Champaign. He is also a co-author, with Akhil Reed Amar, of the forthcoming Supreme Court Review article “Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish.”

The just-concluded Supreme Court term was momentous, but the next one could be as or more important. On Thursday, the very last day of this term, the Court granted review in the most potentially significant case they’ll hear, one arising from a Congressional districting dispute—but with impacts far beyond its specifics.

In Moore v. Harper, Republican loyalists challenge the decision of the North Carolina Supreme Court to invalidate (and replace) congressional district lines drawn by the state’s Republican-controlled legislature, after that court found that the legislature violated the state constitution’s prohibitions on excessive partisanship in district-line-drawing. The case is important enough on its own because partisan gerrymandering of the U.S. House of Representatives is itself a huge issue. But the case is much more important still because of the so-called “Independent-State-Legislature” (ISL) theory, which the Republicans are using to challenge the North Carolina Supreme Court’s actions. If embraced by the Justices, the ISL notion could be used to seriously undermine the 2024 election.

The ISL theory, the modern resurrection of which emanates primarily from the musings of three concurring Justices in the (in)famous Bush v. Gore ruling in 2000, posits that because the U.S. Constitution refers to state legislatures in connection with the regulation of congressional (in Article I) and presidential (in Article II) contests, those legislatures are free from state-court enforcement of state-constitutional limits when regulating federal elections.

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A supercharged version of ISL is what Trump loyalists like John Eastman and others invoked in the run-up to Jan. 6 last year to suggest that, even after a presidential election, a state legislature can decide to appoint whichever slate of presidential electors the legislature prefers. This version of the theory is almost as absurd as the notion (also advanced by Eastman) that the Vice President unilaterally can decide which elector slates to credit; Article II of the Constitution plainly gives the federal government the power to prescribe when, though not how, electors from the states are to be chosen, and Congress has exercised that power in setting National Election Day as the time all states much pick their electors (even if the identity of those electors must await the final tabulation of election results). So any change in elector-selection process by a state (or even by federal officials) after Election Day is out of bounds.

But even the less extreme version of ISL being pressed in court—under which state legislatures have plenary power to do what they want, so long as they stake out their powers before Election Day—is incredibly dangerous.

For example, under ISL if an elected state legislature were to announce today that in 2024 it will pick presidential electors itself without regard to what the state voters desire, even if the state constitution provides that electors shall be chosen by the people, there is nothing any other organ of state government—the Governor; the courts, as in the North Carolina case; the people themselves—can do about that. Or if a state legislature announces today that it—rather than election officials or courts—shall adjudicate any post-election disputes over who actually won, such an arrogation of power would have to be respected, even if it flatly contradicted a state constitutional provision requiring administrative or judicial review of such election disputes.

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ISL theory is as wrong-headed as it is treacherous. True, Articles I and II of the U.S Constitution do refer to “legislatures” of the states. Under Article I, section 4, the “Times, Places and Manners” of holding congressional elections “shall be prescribed in each State by the Legislature thereof.” And Article II says that “Each state shall appoint, in such manner as the Legislature therof may direct” a slate of presidential electors. But careful examination of constitutional text shows the lie to ISL. For example, the text of Article II (the presidential-election context at issue in Bush v. Gore) empowers “states,” not state “legislatures,” and adds merely that legislatures “may”—not that they “must” or “shall”—be involved in setting presidential selection rules. More generally, the term “legislature” of a “state” (in both Article I and Article II) simply cannot be understood without reference to the state constitution that creates, defines, and limits such legislature. Certainly to the founding generation, it was well accepted that a state “legislature” was an entity created and constrained by its state constitution.

Early practice right before and right after the Constitution was adopted provides further, compelling reason to reject ISL ideas. All told, more than half of the 11 states that ratified the Constitution in 1787–88 had state constitutions that expressly regulated state legislatures in the context of federal elections in the 1780s and early 1790s. All these states acted in ways precisely contrary to ISL theory. By contrast, ISL theorists have identified no strong and specific evidence from any of the remaining states indicating that constitution-makers affirmatively embraced ISL ideas.

Just as the founding generation’s actions repudiate ISL, so too does a string of unbroken decisions by the Supreme Court from the early 1900s to the present. The Court has upheld, in the face of ISL arguments, decisions by state constitutions to involve both voters (via referendum) and governors in drawing congressional districts. And in a seminal 2015 ruling, on which the Court—including all the conservative Justices at the time—doubled down in 2019, the Justices explicitly permitted Arizona’s congressional-districting duty to be taken away altogether from the elected state legislature and be vested instead in an independent commission. If an elected state legislature can be divested of all congressional districting power under a state constitution, it is hard to see how judicial enforcement of lesser state-constitutional limits on legislatures could be problematic.

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Against all this, ISL backers have only the observations of three Justices in the discredited and hyper-partisan Bush v. Gore opinions from 2000. (I mention “hyper-partisan” here because it is no coincidence that ISL is being pressed today by Republicans, even though Democrats are of course not above partisan gerrymandering themselves. For various reasons, Republicans have an easier time succeeding at such gerrymandering in state legislatures; note that seven states that have Republican state legislatures went to Joe Biden in the 2020 election—suggesting a contrast between the results of districting and the will of the majority of voters in the state—while none with Democratic legislatures were carried by Donald Trump.)

I remain hopeful that even conservative members of today’s Court will see ISL for the intellectual sham it is. Chief Justice Roberts’ writings in 2020 seem to suggest he gets it. And Justice Kavanaugh too has signaled he’s not necessarily all in on ISL. Certainly if the Court in last month’s abortion and gun cases (Dobbs and Bruen) was serious—and wants to be taken seriously—when the conservative and originalist majority said the Court must attend to constitutional text, history, and precedent to avoid adopting “egregiously wrong” constitutional interpretations, ISL should be buried once and for all. But if the Court does not follow the methodological principles it says it is committed to—and misses this opportunity to put misbegotten ISL notions to rest—the 2024 election could make 2020’s look like a picnic.

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