The “independent state legislature” myth.

July 3, 2022

          In Friday’s newsletter, I mentioned the Supreme Court’s grant of review in Moore v. Harper, a North Carolina case that raises the “independent state legislature” theory. The Court’s grant of review has caused many commentators to suggest that the decision could facilitate a second coup attempt in 2024 or otherwise empower Republican legislatures to ignore the will of their voters in presidential elections. See, for example, the headline in Talking Points Memo, SCOTUS Could Be Poised To Make Future Coup Attempts Easier.

          In Friday’s newsletter, I wrote:

I will write on this subject in future editions, but at the moment, I don’t believe the predictions of doom are warranted—and I think everyone should take a deep breath and compose themselves.

          My attempt to calm the waters resulted in a flood of emails from readers anxious to hear more. It also resulted in a smaller number of emails chastising me for minimizing the serious threat posed by Moore v. Harper. And then there were the emails accusing me of not understanding the independent state legislature theory. (Here is some free advice: It is never a winning strategy to tell someone that they are incapable of understanding the premise of the argument you are having.)

          Because the “independent state legislature” theory will be the subject of intense discussion for the next twenty-four months (at least), I think it is helpful to use Moore v. Harper to discuss the theory. In doing so, let me be clear about a couple of points:

• First, I think the theory is wrong and that it would be a judicial insult and constitutional injury for the Court to adopt the independent state legislature theory.

• Second, the fact that the Court is willing to review the theory is a worrisome sign about its openness to sham and bad-faith legal arguments promoted by insurrectionists and coup-plotters.

• Third, it is also wrong to exaggerate Moore’s potential scope and impact by suggesting that the Court may allow state legislatures to overturn the popular vote in 2024.

          If we tell people enough times that their votes won’t matter, they will believe us. We must neither underestimate nor exaggerate the challenges we face; we owe accuracy and realism to the voters we are asking to turn out in record numbers in 2022 and 2024.

          One final piece of throat-clearing before discussing the theory. I am not an elections law expert, and this newsletter is not intended to be a scholarly treatise. Instead, my goal is to give you the background and tools to evaluate headlines that predict a coup in 2024 based on the independent state legislature theory.

          Whatever I say is subject to correction and clarification by real experts, such as Neal Katyal and Marc Elias (both of whom are counsel of record in Moore v. Harper) and preeminent constitutional scholars such as Professors Michael Klarman and Laurence Tribe, both of Harvard Law School.

          Finally, I am still recovering from COVID, so I may be writing in a COVID fog and suffering from the “Dunning–Kruger-COVID” effect.

The question raised in Moore v. Harper.

          In Moore v. Harper, the North Carolina state supreme court struck down congressional districts created by the state legislature. The state supreme court ruled that the proposed districts violated multiple provisions of the North Carolina state constitution because they were the product of partisan gerrymandering. [See Moore Appendix at pdf page 17 of 561.]

          The North Carolina state legislature appealed that ruling to the US Supreme Court on the ground that its actions are not subject to review by North Carolina state courts when it acts under its constitutional authority to establish the “time, place, and manner” of elections for US Senators and Representatives.

          The phrase italicized in bold above is the question under review in Moore. So, let’s clarify what questions are not under review by the US Supreme Court: (1) whether actions by the North Carolina legislature are immune from review by federal courts; and (2) whether the North Carolina legislature can set aside the results of a popular vote for president.

          Based on the narrow question under review in Moore, it is unlikely that a decision in Moore will facilitate a coup in 2024.

The Independent State Legislature theory espoused by John Eastman.

          Trump’s coup counselor, John Eastman, promoted an extreme version of the “independent state legislature” theory in his infamous coup memos. In his second memo, Eastman argued that after Pence refused to count votes from states with competing slates of “fake electors,” state legislatures could “exercise their authority under Article II” to appoint a new slate of electors.

          Thus, under Eastman’s view, state legislatures can override the popular vote after-the-fact and award the state’s electors to the loser. This is the most extreme version of the independent state legislature theory. If the Supreme Court ever adopted Eastman’s view, it would take a wrecking ball to the Constitution and ignore 234 years of constitutional jurisprudence and democratic tradition.

          Eastman’s extreme view of the independent state legislature theory is not before the Court in Moore v. Harper. That is one reason I am urging calm and perspective about the likely outcome.

What does the Constitution say about the role of state legislatures in federal elections?

          Moore v. Harper will be decided by reference to provisions of the US Constitution addressing the role of state legislatures. Here are the most relevant provisions:

The Elections Clause, Article I, Section 4.

The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations . . . .

The Appointment of Electors Clause, Article II, Section 1.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .

          We are now getting to the heart of the matter. The above two provisions are the points of intersection between the Constitution and the independent state legislature theory. Let’s look at the questions and issues raised by those provisions.

Who appoints the “electors”?

          States appoint electors in the manner prescribed by the state legislatures. Every state has passed a law directing that its electors shall be awarded based on the results of a popular of the people. See National Archives, About the electors.

          It is true that until the mid-1800s, some state legislatures reserved to themselves the authority to appoint electors. But that method has been replaced by popular vote in all states. A state could return to a system where the legislature selects electors, but the state would first have to “direct the manner” of doing so by new legislation.

          “Directing the manner” of selecting electors is a duty under the US Constitution and is subject to other provisions, such as Equal Protection and Due Process. So, a state legislature cannot just “override” a popular vote after-the-fact and award the votes by legislative dictate. Nothing in the Constitution allows a state to retroactively change the “manner” of selecting electors once that manner has been prescribed by the legislature.

          Thus, John Eastman’s theory that state legislatures could appoint “new slates” of electors after the electors had been selected by popular vote finds no support in the Constitution and is merely a coup-plotter’s fever dream.

What is a “legislature” within the meaning of the Constitution?

          State legislatures do not exist in federal ‘constitutional ether.’ They are bodies created, defined, and limited by state constitutions. The US Constitution does not grant them superpowers; it merely allows them to “direct the manner” of selecting electors. Once they have done so, they have no further role in electing the president.

          So, what is a “state legislature”?  For more than a century, the Supreme Court has interpreted the phrase “state legislature” to refer to “the state’s lawmaking processes” or the “legislative function.” Why? Because state constitutions also provide a role for governors (and, sometimes, courts) in the “lawmaking function.”

          Let’s start with an obvious point: When state legislatures draw congressional lines, they do so by passing legislation—which typically requires signature of the state’s governor. But the Constitution does not explicitly mention “governors” in the process of appointing electors. A recent example is Florida, where Governor Ron DeSantis vetoed congressional maps drawn in bills passed by the Republican legislature. See CNN, DeSantis vetoes new Florida congressional map, calls for special session.

          If the Florida state legislature were an “independent state legislature” under Article II of the US Constitution, Ron DeSantis would have no role in vetoing redistricting legislation. But he does because the state constitution says he does. That broader view of the term “state legislature” arises from logical necessity, a recognition of reality, and unbroken judicial interpretation.  

          States can also provide a role for their courts in the lawmaking process. Indeed, in North Carolina, the redistricting statute expressly includes a provision for review of the districts by the state supreme court!

          Thus, as interpreted for more than a century, the term “state legislature” has referred to the broader “legislative function” of the states. State legislatures are creatures of state constitutions that provide governors and state courts with roles in the legislative process.

          I could stop here and say, “Therefore, the North Carolina legislature’s redistricting maps are subject to veto by the governor and review by the state court.” That should be the end of the controversy in Moore v. Harper. But John Eastman and headline writers everywhere are discussing wilder versions of the “independent state legislature theory.” Let me turn to those extreme versions next.

The extreme version of the “independent state legislature” doctrine.

          Some headline writers and on-air commentators are making broad pronouncements about “state legislatures overturning the results of the 2024 elections” without bothering to say how exactly they will do so. Let’s consider their claims by walking our way through examples.

          Suppose Biden wins Florida by 0.5% or 72,500 votes. The Florida legislature concludes that the election is “too close to call” in light of Trump’s insistence that the vote in Florida “was so corrupt like nobody’s ever seen.” The Florida legislature declares the election “void” because of “concerns of massive fraud” and appoints its own slate of electors for Trump. Do you see any issues with that scenario?

          I hope it is easy to see that the Florida legislature would have committed a massive due process violation by disenfranchising 14.5 million voters. The legislature had already “directed the manner” of appointing electors—the popular vote—and 14.5 million citizens exercised their right to vote in reliance on a constitutionally prescribed method. Having directed the manner of appointing electors before the election, the state legislature has no further role in the federal election process. None. The so-called “independent state legislature” is constrained by the Due Process Clauses of the 5th and 14th Amendments.

          Suppose, instead, that the Florida legislature directs the Secretary of State to disregard votes from precincts in Broward County where Democratic turnout was higher than 80%, which the legislature believes is “unbelievably high, and therefore indicative of fraud.” The Equal Protection violation leaps off the page (as does the Due Process violation). States can reject ballots proven to be fraudulent; they cannot reject whole classes or categories of ballots based on unproven suspicion or isolated instances of fraud. A federal court would order the Secretary of State to disregard only those ballots proven fraudulent and count all others.

          Suppose that GOP “poll watchers” file reports challenging 15,000 voters who appeared to be “suspicious” when voting. By sheer coincidence, 100% of those reported as “suspicious” are Black voters in Miami-Dade County. The Florida legislature declares those ballots to be “presumptively fraudulent” unless the voters can prove that they are duly registered and actually voted on Election Day. I will let you identify the constitutional violations.

          I could go on, but you get the picture. Even if state legislatures cannot be constrained by state courts, they are bound by the rights granted to citizens in the Fifth and Fourteenth Amendments. They cannot change the rules after the fact and cannot “do whatever they want.”

Concluding Thoughts.

          I expect to receive lots of emails saying, “Yes, but Republicans will cheat in other ways,” such as: Ron DeSantis won’t sign the certification of electors; Arizona simply won’t report the results of its election to Congress. Sure, those things can happen, but I attempted in this newsletter to address only the “independent state legislature” theory. There are judicial remedies for other potential violations, but I can’t cover them all.

          I am not saying Republicans won’t cheat. (If that is your takeaway, you aren’t reading my newsletters closely, or at all.) I am saying that the “independent state legislature” theory will not be recognized in its extreme form in Moore v. Harper—and is unlikely ever to be recognized in a way that allows state legislatures to overturn elections that have already been conducted “in the manner directed by the legislature.” So-called “independent state legislatures” are not preternatural bodies that can run rough-shod over the other provisions of the Constitution.

          I hope you also now recognize that when states run federal elections, they are performing a federal constitutional duty and are therefore subject to the jurisdiction and orders of federal courts, regardless of the outcome of Moore v. Harper. As I said, the theory is wrong and would be a judicial insult and constitutional injury for the Court to adopt the independent state legislature theory in Moore. So, please, no send emails chastising me for not recognizing the danger posed by Moore. I do. That danger relates to removing state court oversight from state legislatures in federal elections.

          Thanks for your patience with this overly long explanation. As they say, “If I had more time, I would have written a shorter paper!”

          Talk to you on Monday!

Post-script: I am feeling much better today, primarily because of the loving care of my wife, who is tending to two COVID patients in isolation in our home. Thankfully, she has managed to remain COVID-free! We would be lost without her!