In Defense of the Independent State Legislature Doctrine, Part 1

The "radical" idea that can be found only in the minds of crazed Federalist Society conservatives . . . and, oh yeah, also in the text of the Constitution itself.

Above: the mysterious source of the insane “independent state legislature doctrine” can now be revealed!

The Supreme Court has agreed to hear a case called Moore v. Harper, involving a theory known as the “independent state legislature” doctrine (ISLD). The left confidently declares this doctrine to be radical and insane — a recently concocted bit of buffoonery by Federalist Society types who can’t really be serious. Matthew Cooper of the Washington Monthly calls it “the crazy ‘independent legislature’ doctrine.” The reliably incorrect Ian Millhiser at Vox declares Moore v. Harper to be “perhaps the gravest threat to American democracy since the January 6 attack.” Steve Benen terms the ISLD “an obscure idea” that could be used to overthrow presidential elections. Rick Hasen calls it an “extreme position” that “could help foment election subversion.” NPR says it “could radically reshape elections for president and Congress.” Radley Balko has a typically sober and restrained take, writing that he “[c]an’t emphasize enough how batshit this is.”

What is this obscure, crazy, extreme, radical position that has the lefties (and, as we will see, Michael Luttig) in such a lather? As it turns out, it is really nothing more than reading the Constitution to mean what it says. There are arguments against the ISLD, some of which are plausible and some of which are just silly. It’s my purpose in this set of pieces to begin to evaluate them for you. But any rational discussion of the subject has to acknowledge that the doctrine really does nothing more than give a plain reading to the clear text of the Constitution — which, the last time I checked, was still the supreme law of the land.

The discussion will proceed in at least two parts, because putting them in a single newsletter challenged the Substack length limits. Today, I will discuss the textual basis for the ISLD. I will note that support for the ISLD does not imply that legislatures may follow the Trump Blueprint of holding an election and then changing the results if they don’t like them. That idea actually is insane. Then, for paying subscribers, I will take on the issue of whether state legislative action in this area can be trumped by state constitutional provisions. (Hint: I believe it is not.)

In a future newsletter, I will do a deep dive into the case law in this area. I am already well into that post and it is quite complex. Today’s newsletter is already over 6,000 words in length, so you probably won’t mind if I leave the case law discussion for another time.

The Text of the Constitution (Yes, We Still Pay Attention to That Here)

Let’s begin with the text. Article II of the Constitution, in Clause 2 of Section 1 (the “Electors Clause”) explains how states will appoint electors to the Electoral College, which chooses the President:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

There is one more clause we need to deal with: Article I, Section 4, Clause 1 of the Constitution (the “Elections Clause”), which says:

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, except as to the Places of chusing Senators.

This latter clause, the Elections Clause, is the clause that Moore v. Harper will be more directly concerned with, although the Electors Clause arguably implicates the ISLD just as the Elections Clause does. In today’s newsletter, I am going to focus primarily on ISLD as it relates to the selection of presidential electors. In my future newsletter discussing Supreme Court precedents, I will necessarily have to discuss court decisions relating to the Elections Clause as well. (I will explain what is at issue in Moore v. Harper in the future newsletter, as that explanation falls more naturally into the discussion of Supreme Court precedent in the Elections Clause area.)

So what does this wacky independent state legislature doctrine say? Well, it says that when the Constitution uses the phrase “the Legislature thereof” in the above passages, it refers to the state legislature and not the state’s entire tripartite political structure, including the judiciary and the executive.

That’s it. That’s the whole crazy theory: that the word “legislature” means “legislature.” Damn those Federalist Society types!!!1!!!

I have included bold emphasis in my quotes from the Constitution above, to make it clear that the Constitution says that “the Legislature” of a state is the body that decides the “Manner” in which electors are chosen in that state, as well as “The Times, Places and Manner” of elections for Senators and Representatives.

If you can remember all the way back to the year 2000, you might remember that the Electors Clause was actually discussed in Chief Justice Rehnquist’s concurrence to the majority opinion in Bush v. Gore. (Justice Scalia and Justice Thomas signed on to this concurrence, so you already have a pretty good idea what Justice Thomas thinks about the ISLD.) Chief Justice Rehnquist noted that “there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of State’s government. This is one of them.” He added:

In McPherson v. Blacker, 146 U. S. 1 (1892), we explained that Art. II, §1, cl. 2, “convey[s] the broadest power of determination” and “leaves it to the legislature exclusively to define the method” of appointment. Id., at 27. A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.

The “significant departure” language is something to notice. I will refer to it again in the future.

Now, of course, it’s not entirely that simple. There is a whole cottage industry of commentary out there designed to convince you that the word “legislature” doesn’t really mean “legislature,” and you may or may not be surprised to learn that these arguments are not always completely insane. I find some of them supremely unpersuasive and others slightly more plausible. If you’re going to discuss this issue intelligently, you should know what these arguments are. Some of these arguments are addressed today, and some will be addressed in a future newsletter.

But before we get to those arguments, I want to caution readers that, just because the state legislatures are in charge under the ISLD, that does not mean they should get to invalidate statewide presidential elections that have already occurred. I think that is one of the biggest concerns of those worried about state legislatures having plenary control over appointing electors.

No, State Legislatures Cannot Use the Independent State Legislature Doctrine to Invalidate the Results of an Election Just Because They Don’t Like the Outcome — Or, Why We Still Need to Reform the Electoral Count Act

It’s actually not only lefties who are worried about the possible use of the ISLD to steal the election for Trump in 2024. Michael Luttig, a conservative who was often named as a possible Supreme Court nominee during the Bush years, wrote a piece that described the Trump plan to steal the election in 2020 — and warned that it could happen again in 2024, this time successfully. According to Luttig, the first part of the plan was “to have the Supreme Court embrace the little known "independent state legislature" doctrine.” This “would pave the way” for the second part of the plan: “exploitation of the Electoral College process and the Electoral Count Act, and finally for Vice President Mike Pence to reject enough swing state electoral votes to overturn the election using Pence's ceremonial power under the 12th Amendment and award the presidency to Donald Trump.”

By now, we’re all familiar with the details of the 2020 scheme. On and before January 6, Trump and his cronies were involved in a full-court press of different state legislative bodies to send alternate slates of electors to Congress, based on chimerical and wholly pretextual claims of fraud. It seems clear at this point that Trump’s motive for siccing a mob on Congress on January 6 was to delay the counting of electoral votes long enough to buy time for one or more state legislatures to send such an alternate slate of electors.

It does seem that this scheme was based on an insane and unconstitutional view of the independent state legislature doctrine. Apparently, the Trumpist coup plotters believed in a wholly crazy notion that a state legislature can 1) authorize a statewide election to choose presidential electors, 2) evaluate the results of that election to see if the legislature approves . . . and then 3) submit its own slate of electors after the fact if it dislikes the outcome. What’s more, this theory posits, the state legislature could do this as late as January 6 — or even later, if a mob managed to keep Congress from counting the electoral votes on January 6.

That isn’t how any of this works. Nothing about my support for the ISLD should be read as endorsing that nutty theory, which I agree with Luttig is a threat to democracy and our Constitution.

The simplest rejoinder to this theory can be found, again, in the language of the Constitution itself. Article II, section 1 of the Constitution states: “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” (Again, bold emphasis is mine; the Founders spelled things funny, but they did not share my habit of putting things they thought especially important in bold type. They didn’t even type out the original Constitution; they had some dude named Jacob Shallus write it out!)

Congress has in fact determined the time of choosing — or, if you like, “chusing” — of presidential electors in this country. In 1845, it passed something called the Presidential Election Day Act, which set the date for choosing electors as "the Tuesday after the first Monday in November." That is the date when electors have to be chosen. That would seem to close the door on any post-election efforts to declare a different result.

The problem is, that act has a loophole. As Fred Wertheimer has explained at Just Security:

Here’s the problem with the language of the 1845 Act as it now stands.  The 1845 Act gives a state legislature the power to choose presidential Electors after the election by declaring that the voters in the state “failed” to make a choice on Election Day.

In case of such a “failed” election, the 1845 Act provides that "the electors may be appointed on a subsequent day in such manner as the State shall by law provide.”

Wertheimer describes a 2024 scenario in which state legislatures, following the 2020 coup plan, declare their state elections to be “failed” on the basis of Trumped-up fraud claims (SWIDT? Thank you!) — claims as baseless as those rejected by dozens of courts in 2020. In this scenario, the legislatures then pass new laws authorizing themselves to appoint Trump electors, and voila! Trump “wins” even though he lost.

Although Wertheimer does not mention it, another possibility is that the controversy could lead to the dispute among competing slates of electors to be thrown into the House of Representatives, where Trump would almost certainly win, because Republicans will likely control the majority of state delegations in early 2025, just as they did in early 2021. I agree that Trumpist coup plotters might well be planning to do exactly this. This is why I have been urging reform of the Electoral Count Act, to (among other things) make it clear that Congress may not override state-certified slates of electors by majority vote, or accept state legislatures’ substitution of their own judgment for an election that already happened, the outcome of which the legislature dislikes.

Wertheimer’s piece makes it clear that necessary electoral reform should also include revision of the 1845 Act, to a) explicitly narrow the definition of a “failed” election to that originally contemplated by its drafters: namely, an actual inability to conduct the election due to weather conditions or the like, and b) to provide for another popular election in such cases.

Regardless, I believe that any claim that an election is “failed” under the 1845 Act is a question of federal law subject to judicial review by the United States Supreme Court. I think if Trumpists tried to pull off a scheme such as Wertheimer or Luttig discuss, it is ultimately subject to the federal constitutional rule quoted above (Article II, section 1), and would present a question to be resolved by the Supreme Court. And, despite the excessive cynicism that pervades our country, I don’t think even a conservative majority of the Court would allow totally fabricated claims of fraud to undo the results of a fair statewide election. But if Congress does not share my faith in the Court — and I could not entirely blame Congress if it didn’t — then it’s high time for Congress to enact the necessary changes.

State Legislatures Could Just Pick Electors Themselves

OK, so the ISLD does not allow legislatures to just change the rules after the fact. But may the legislature change the rules before the fact? Here, I think the answer is clearly yes.

For example, a state legislature does not have to allow the state’s citizens to choose presidential electors. Currently, all 50 states do — but they don’t have to. A legislature could just choose them on its own.

That may sound radical, but there is precedent for it. In fact, state legislatures have done this in the past. In a publication titled The Statistical History of the United States from Colonial Times to the Present, the U.S. Bureau of the Census has set forth the history:

]D]uring the early years of the Republic, electors were chosen in the several States by a number of different devices. The principal methods were election by the State legislature itself, by State electors popularly chosen to elect presidential electors, and by direct popular vote for the electors. With few exceptions, presidential electors have been elected by popular vote since 1828. The Legislature of South Carolina, however, continued to elect presidential electors until 1860. Since the Civil War, legislatures have chosen electors only twice — in Florida in 1868 and in Colorado in 1876.

But What About Judicial Review?

Part of my argument here is that, even though the Constitution puts state legislatures in charge of the “Manner” of choosing electors, that power is subject to judicial review. Where I part ways with the opponents of the ISLD is on two questions: 1) who has the final authority to review state legislative actions in directing the manner of choosing electors: state courts or federal courts? and the related question of 2) on what basis may courts invalidate state legislative enactments directing the manner of choosing electors?

As I discuss more fully next, in the portion for paid subscribers, I contend that state courts may play a role in interpreting the meaning of a state legislature’s laws, but that a state court may not use state constitutional provisions as a basis to invalidate a legislature’s actions in directing the manner of choosing electors. Moreover, the legality of a state legislature’s actions in directing the manner of choosing electors is purely a question of federal law — more specifically, federal constitutional law. Although state courts are allowed to rule on such questions, their rulings are subject to review by the United States Supreme Court, which is the ultimate authority on federal constitutional questions in our system.

That may be about as far as a general interest audience can be expected to go. (Some of you may be saying: wait — that’s the general interest part? Well, constitutional questions can get pretty intricate by their very nature. Sorry!) But there are some of you who wanted me to take a Deeper Dive into the arguments of the anti-ISLD crowd. If you’re a paying subscriber, I am here for you, and take that Deep Dive we shall do, right now.

In the next portion of this newsletter, I will discuss several topics. Later on, I’ll address in detail the argument that judicial review is assumed to be part of any system, including judicial review of actions taken by state legislatures under the Electors Clause. I’ll also address the idea that the state legislatures are in charge of every “jot and tittle” of conducting presidential elections — and I will suggest my own rule for determining when state or executive branches violate the Electors Clause. I will begin by discussing the critical issue of whether state constitutional provisions trump the actions of state legislatures in the Electors Clause context.