The “independent state legislature theory” is a meritless interpretation of the U.S. Constitution that would give state legislatures near-total authority over the laws for federal elections, including voting, redistricting, and election administration. Under this extreme theory, states’ constitutions, courts, and governors would no longer serve as a check on legislatures’ partisan abuses, including partisan gerrymandering.
Four current Supreme Court justices have signaled an openness to the independent state legislature theory. If the Court adopts the theory, the consequences for democracy would be severe, as the scholars discussed at the Brennan Center event.
Leading legal scholars Vikram Amar of the University of Illinois, Leah Litman of the University of Michigan, Carolyn Shapiro of the Illinois Institute of Technology, and Kate Shaw of Cordozo Law met on May 11 for a Brennan Center event on the theory moderated by Wilfred Codrington III, Brennan Center fellow and assistant professor at Brooklyn Law. A transcript of their conversation is below.
Wendy Weiser (00:04:00):
Good afternoon everyone. And thank you so much for joining this program, hosted by the Brennan center for justice at NYU law school. My name is Wendy Weiser and I’m the vice president for democracy at the Brennan center. For those of you joining one of our events for the first time, the Brennan center is a nonpartisan think tank and public interest law center that works to repair and strengthen our systems of democracy and justice. So they live up to America’s ideals. Before we get started, I have a few housekeeping points. First, we will leave time for questions at the end of the discussion. If you have a question you’d like to ask, please add it in the YouTube chat. Civility is important to us at the BRN center and those who post rude or in temperate language in our message streams here will be removed from the conversation.
Wendy Weiser (00:04:49):
Second, we provide live closed captioning and the program will be available for screening on YouTube. So please do share it widely. Now I am delighted to welcome you to our conversation today. The first in a series of convenings that will address the independent state legislature theory, a radical and anti-democratic new interpretation of the us constitution being pushed by some conservative activists, proponents of this theory argue that two clauses of the constitution, the electors and the elections clauses give state legislatures exclusive and virtually unchecked power to regulate federal elections without interpretation by election officials and without any checks from governors, state courts, or even state constitutions. If the Supreme court adopts this theory, it could completely upend and undermine voting rights. Redistricting reforms and election administration, hundreds of longstanding election rules could be immediately wiped out, including the secret ballot in Oregon or absentee balloting in 20 states in its most extreme form.
Wendy Weiser (00:06:01):
This theory could enable state legislatures to even overturn federal elections. Alarmingly four justices have already embraced this theory in recent shadow docket opinions. And there’s a real risk that the theory could gain a majority. Next time. The issue reaches the court that moment baby soon, because the court is now considering whether to grant cert in a North Carolina redistricting case in which the petitioners are asking the court to adopt the independent state legislature theory. Fortunately, a wave of recent scholarship has debunked this theory from every conceivable angle. It is baseless as a matter of history, text and practice, and makes no sense as a matter of policy, this scholarship will be vital in convincing the Supreme court to step away from this dangerous theory with us. Today are four of the preeminent scholars who have written these important works. Their accomplishments and contributions are too numerous to describe and outline in the few minutes we have.
Wendy Weiser (00:07:04):
And so I’ll only briefly introduce them in their affiliations, but I encourage you to take the time, not only to read their CVS, but their scholarship. So first I would like to welcome Dean Vickram, Omar, the Iowan foundation, professor of law at Illinois college of law. I also welcome Leah Litman, professor of law at the university of Michigan law school and Carolyn Shapiro, professor of law and associate Dean for academic administration and strategic initiatives at Chicago Kent college of law. And finally Kate Shaw professor of law and the co-director of the floor Shimer center for constitutional democracy at Cardozo school of law. I am also delighted to welcome our moderator for today’s conversation, Wilfred Codrington, a Brennan center, fellow and assistant professor of law at Brooklyn law school. Wilfred, take it away.
Wilfred U. Codrington III (00:08:05):
Thank you, Wendy. And thank you to all the participants in today’s important discussion. Um, so I think we should just start sort of broadly and I’d love to ask a question generally for the entire panel. Um, Elena Kagan, current associate justice in the Supreme court said that we are all originalists. Now, what does founding era history and practice reveal about the independent state legislative theory and how faithful are the members of the court to this history? And I’ll open that for anyone.
Vikram D. Amar (00:08:43):
Well, uh, will Fred I’ll I’ll jump in since no one else did. I was gonna wait for others, but, uh, uh, uh, I’ll, I’ll take a shot. Uh, first of all, on your second question of how consistent justices are in applying originalism, that’s quite a complicated question. I think, you know, uh, next year in the Harvard and university of North Carolina affirmative action cases, um, you’re gonna have some justices say things that are very inconsistent with the text and original understandings of the 14th amendment, but as regards the so-called ISL, independent state legislature notion, I think originalism cuts entirely against it. And indeed, I haven’t even seen anybody try to argue to the contrary that articles one and two both do use the word legislature of the states, but legislature of the states was understood at the time as an entity created and limited by the state constitutions and the state peoples.
Vikram D. Amar (00:09:39):
There’s no way to think about a state legislature except in terms of what powers it has, but also what limitations it has coming from state constitutions, the articles of Confederation and the practice, um, under that confirm this, the articles of Confederation used language, very similar to articles one and two, and the early post, um, constitutional actions by states in, in adopting new state constitutions after 1787, confirm all of this. So the only thing that the, uh, conservative justices who’ve embraced ISL have is the bare, um, uh, use of the word legislature. But text without context is not originalism and legislature has to be understood in terms of what it, what people thought it meant at the time, as well as the actions that people took that reinforced that meaning the only historical stuff that, that people ADU in support of ISL is 19th century stuff that has nothing to do with originalism. I don’t care whether people got it wrong in the late 1890s, the same time they got it wrong in Plessy versus Ferguson. I care as an originalist, what people were thinking and saying in 1787, uh, and shortly before and shortly thereafter.
Carolyn Shapiro (00:10:51):
And can I, can I add there was there’s practice from that time. We know that at least five states, original constitutions, original states, constitutions included provisions requiring for example, uh, that all elections, including federal elections be conducted by ballot as opposed to voice vote. And that was a controversial question at the time. So we know that even at the founding, there were cons state constitutions limiting what state legislatures could do with respect to federal elections. And that was seen as completely normal.
Wilfred U. Codrington III (00:11:27):
Well, I’m gonna fast forward us up a bit, um, to, uh, 2000, um, all of your articles discussed the independent state legislative theory in the context of Bush V gore, uh, the role that that case, uh, played, or those cases, the Bush one case and the remand and Bush two, and the recount, um, played, um, for the development of this theory. Can you explain that, how it came up in the dispute and, and while you’re at it, really, whether that was the actual origins of this, or if this theory has other antecedents and, and, and again, this is one of these questions where you all touch on Bush V Gores. I’m happy to hear this one from any of you.
Carolyn Shapiro (00:12:09):
Well, I, I, I’ll just, I jump in and say a couple of things and let others pick up it. It came up in Bush VOR in, in two ways. It actually originally came to the Supreme court in, uh, the preexisting, the case, uh, Bush versus Palm beach county canvasing board. And they’re the Florida Supreme court had interpreted aspects of Florida election law, at least arguably it by reference to the Florida constitution, sort of a constitutional avoidance technique. And the Supreme court said, well, we can’t really tell how much the Florida Supreme court relied on this Florida constitution. So we’re just gonna remand, cuz it could be a problem if they relied on it too much. It, it’s not a holding. Although some of the justices who have embraced the independent state legislature theory have suggested that it might be a holding, but it’s not a holding it’s its own constitutional avoidance.
Carolyn Shapiro (00:13:07):
This, the Supreme court said, we’re setting this back and we want the Florida Supreme court to tell us what it was doing. The Florida Supreme court then made it very clear in both that case. And in the case that became Bush versus go, that it was just doing statutory interpretation when, without reference to the Florida constitution. When it comes back when the, the election controversy comes back to the Supreme court in the form of Bush versus score the as every, as almost everybody knows, right? The Supreme court stopped the recount in Florida by relying on the equal protection clause in a five, four opinion, but three justices, the chief justice at the time was Rehnquist joined by Scalia. And Thomas had a concurrence that argued that this, that article two, giving the legislature the power to decide how the electors would be appointed, constrained the Florida court, uh, in its interpretation of the statute. And it said without any citation or support that I am aware of at all, uh, or there is no citation or support, I don’t think any exists said that this actually limits the nature of the type of statutory interpretation that the court could engage in. That it had to be a kind of textualist interpretation, although that’s not entirely what the court did, but the opinion did also include some purpose CISM, but that’s, that’s where it was sort of laid out in its foundation. So
Vikram D. Amar (00:14:38):
Wilfred to, to, to piggyback on, on that, this question about what the word legislature means in articles two and one and elsewhere in the constitution, certainly obtained a lot more salience in Bush versus go three justices as Carolyn points out in the concurrence featured it, um, four other justices repeated by the way, which kind of underscores how, um, the remand in Bush one couldn’t have resolved this question, otherwise you wouldn’t have had more justices rejecting than accepting the independent state legislature notion in, in Bush, uh, Bush score two. The question actually goes back before that I wrote an article in William and Mary law review in 1999, that was published in early 2000. Well before the election, um, talking about what the word legislature means in various points in the constitution. In fact, I think I might be the first one to use the phrase independent legislature, uh, to capture this notion.
Vikram D. Amar (00:15:28):
But what happened after Bush versus gore is the equal protection rationale that got just savaged by academics, um, fell into disfavor and that no one on the Supreme court wanted to touch that with a 10 foot pole because it makes no sense. And so I think pu you know, kind of sophisticated conservatives who grew up during that time at the end of the last century, they came to think, well, Bush versus gore might have been right, but for the reasons embraced by the rank was concurrence, not by the majority. So they latched onto this notion that the word legislature could would mean nothing, unless it means what they say it meant, which is a completely independent legislature, untethered, uh, from the state constitution and state judicial review that that’s not remotely true. The word legislature still has meaning even if it, if it doesn’t, um, uh, connote what they say, um, uh, for reasons that I think all of us, uh, uh, could, could explain and have written about.
Vikram D. Amar (00:16:22):
Um, but I think the reason why this goes back to Bush versus gore is because there were three justices who fullthroated, um, uh, laid out this theory and not that many people engaged it in the interim, it kind of lay fallow. And, uh, so it made a resurrection leading into the 20, 20 presidential election. And that’s when a lot of us, including myself, started thinking, Hey, we thought this thing was put to bed once. And for all we better, uh, we better, uh, yell loudly to explain why this is complete, um, uh, rubbish, as I say, in the title of, of my most recent article,
Wilfred U. Codrington III (00:16:56):
Uh, and I wanna get to the 20, 20 election in a moment, but I’d like to ask a question to Kate and Leah. Um, I mentioned originalism earlier on, it has this cousin we’ll call it an interpretive tier theory called textualism. And you write that textuals claim that theirs is the only interpretive method that respects the limited role of unelected judges in a federal system. Can you tell us what textualism is and what it actually has to do with the independent state legislative theory? And also, can you square the circle that in this context textuals are calling for increased and enhanced federal judicial intervention,
Kate Shaw (00:17:38):
Maybe I’ll start and then pass the mic to Leah if that’s okay. Um, the, and, and one thing I wanted to say is, so we’ve been talking in general terms about the, the use of the term legislature. Maybe I’ll just quickly, you know, recite the constitutional text that is at the heart of this theory, cuz I think for, you know, listeners, viewers who aren’t familiar with it, it might be useful. So article one’s elections clause provides that the times places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. Okay. So the key term there is legislature, um, and the claim that I think, um, both thicken Carolyn’s article really effectively debunks sort of, you know, soup to nuts, um, is that, you know, the claim of proponents of the theory is that this term legislature, um, exists independent of state constitutional provisions, creating the legislature, maybe providing for judicial review of the enactments of the legislature, that somehow the legislature stands apart from other organs of and norms and rules of state governance.
Kate Shaw (00:18:33):
Um, in, I think this very sort of overly Federalist vision of what a legislature even means or looks like. So that’s article one and then article two is presidential elector’s clause provides that each state shall a point in such manner as the legislature thereof may direct again, the word legislature, a number of electors equal to the whole number of representatives to which each state may be entitled in Congress. So both have to do with federal elections, the first congressional elections, uh, the second presidential elections and the claim is, uh, that, you know, the legislature’s power here is plenary and exclusive and independent of, um, any authority on the part of other state entities, um, arises, you know, it it’s related but distinct. So we have the context of federal congressional elections and federal presidential elections. Um, okay. So I just wanted to put the text of the constitution out there, um, in terms of your question about sort of the role of textualism.
Kate Shaw (00:19:23):
I mean, I think there are a couple of ways in which the claim this independent state legislature, either theory or as Carolyn’s piece calls it claim. Um, I think either referring to it as a theory or a claim is far superior to referring to it as a doctrine, right? It’s not been accepted. And in fact it doesn’t really have the coherence of a doctrine. I think so claim or theory is the best way to describe it to my mind. Um, but it has textualism I think is at the heart of it. So I think there the way that Leah, Leah and I focus on one aspect and this piece that we have drafted. Um, so we focus on one circumstance in which this claim arises, which is where a state court or a state executive branch entity, um, has interpreted a state statute related to, you know, election administration typically.
Kate Shaw (00:20:02):
Um, and sometimes in explicit light of state constitutional voting related provisions reads a state statute in a particular way. And the claim is that federal judges can override the interpretation by state officials, by themselves, federal judges, reading the state statute in a way they think is proper reviewing it de Novo and reviewing it in exp using textualism as the only legitimate and defensible method of statutory interpretation with which to interpret that state statute and sometimes correcting supposedly insufficiently textualist interpretations offered by state courts or state executive branch actors. Um, and so interposing there really textualist grounded interpretation of the statute on other state interpreters interpretations. Um, and so briefly, sorry, let me back up a little bit before you asked broadly, what is textualism? So a method of interpretation that, you know, as long standing has had, you know, earlier iterations arose in its sort of current or, you know, relatively current incarnation, I would say in the 1980s when justice Scalia, uh, was ascended to the Supreme court and to a degree when he was on the DC circuit, um, that disavows reliance on extra textual sources like statutory or legislative history or, or, uh, purpose or context and focuses at least officially on the text of the statute, um, and then allows consultation of extrinsic sources like dictionaries, um, and canons of interpretation, either textual or substantive canons.
Kate Shaw (00:21:29):
Um, but so that’s essentially textual as a method and as Leah and I explained in this article and then I’ll stop and pass them mic to Leah textualism developed as a method, you know, in the context of federal courts, interpreting federal statutes and with very explicit reference to the norms of legislative passage that obtain in the federal system. And in in fact have very little to do with, with the process of the passage of laws in the states at all. So it’s a profound category error to suggest that textualism, even if it is the right way to interpret federal statutes is appropriate or, or mandated, um, when it comes to the interpretation of state statutes. And that in fact is at the heart of the state, the independent state legislature claim, um, at least in the context in which Leah and I are talking about it, which, you know, somewhat distinct from the context in which state legislatures assert the authority to themselves directly appoint, uh, presidential electors, irrespective of whatever vote has been cast, uh, in the state. Um, so maybe I’ll stop there and, and, and let Leah pick up.
Leah Litman (00:22:25):
Yeah. Um, so I’ll just pick up kind of where Kate left off, um, bringing it back to kind of the iteration in origin in Bush for score this idea that the elections clauses and electors clauses allow federal courts to basically review state court’s interpretation of state statutes, um, you know, the kind of conceits or the premise of the claim in Bush versus gore was that the state courts had gotten state law so wrong. They had interpreted state law so incorrectly that that created a federal constitutional problem. Um, and just going back to your first question, well, Fred, like when we’re asking, like where is the original evidence to support this independent state legislature theory or claim? I think it’s helpful to underscore how odd it would be to allow the federal courts to review state court’s interpretation of state law. Like that’s wildly inconsistent with just basic foundational premises of how federalism is supposed to work.
Leah Litman (00:23:22):
And so if the elections clause, if the electors clause did that, we would expect there would, we would expect there to be like considerable evidence pointing toward that. If those clauses inverted this core principle of federalism, you know, it’s just kind of like a baseline premise about how our system of government works that state courts are the final say about the meaning of state law. That’s why the litigation, you know, around SBA came to a standstill because it’s the Texas Supreme court that gets to be the one that says what Texas state law actually means. Um, and what the independent state legislature theory does is say, well, that’s true, except when it comes to the state law regarding federal elections in that circumstance, that circumstance alone federal courts get to be the ones to decide whether state courts have properly interpreted state law, um, such that, you know, it’s still the legislature that’s making the state law governing federal elections and given again, how at odds that, um, arrangement would be that allocation of decision making authority would be, we might expect there to be like a lot of evidence from history, a lot of historical practice, a lot of constitutional texts making perfectly clear that yes, that’s gonna be how things operate, but of course there’s no such thing which makes the theory and the claim, you know, all the more odd and, you know, unsupportable.
Leah Litman (00:24:54):
Um, and instead, you know, as that kind of articulation and explanation of the theory makes clear, you know, it is an assertion by the federal courts of power to aggregate to themselves the ability to interpret state law regarding federal elections. Um, and just one more thing, kind of picking up on bear Kate left off, you know, in our piece, you know, we talk about how the premises of textualism don’t map neatly onto the states, given that states structure their governments in different ways than the federal government does, you know, there isn’t a perfect, or like, as you know, clear of a system of separated powers, there isn’t necessarily a pure system of bicameralism and presentment and how they pass state laws. Um, state judges are elected. Many state judges are elected unlike their federal counterparts. And so the premises of textualism just don’t apply. Um, and so what the independent state legislature theory kind of does is it forces on the states and on the state governments, basically an arrangement about how they must structure their governmental systems and how they must allocate decision making authority and interpretive authority within the states in ways that, again, just run totally counter to the idea that, you know, part of what makes the state’s governments and our constitutional system is their ability to structure themselves as governments and decide how to allocate decision making authority within their own governance systems.
Vikram D. Amar (00:26:21):
Could I, could I, cause I think Leah made a lot of amazingly good points. So, you know, the title of this session is the threat that ISL poses to democracy. And I actually, I was gonna, I didn’t know that was the title until today. I actually think an equally good and somewhat better title. Would’ve been the threat it poses to federalism because the cases that we’ve been looking at involve state courts, vindicating state, constitutional rights to vote in a way that Accords with my sense of what democracy is, but I could imagine state courts interpreting state laws. Um, so not so expansively and yet still it would ultimately be a matter of what those courts thought state law meant and federal courts have to respect that the one tiny, um, tweak I might, uh, make to what Leah says in my, in the piece that my brother Alamar and I have, uh, on this coming out in, um, the Supreme court review any week now we concede at least arguendo that articles one and two make the question of what the, um, state’s election law is in a particular, uh, uh, area, um, uh, a federal question for purposes of federal court review.
Vikram D. Amar (00:27:23):
But that doesn’t mean that the federal courts decided anew when, when the federal government, for example, incorporates state law by reference in federal territories and say, we want, um, the federal law to be whatever the law of the state is. Uh, in, in that general jurisdiction, then the federal courts essentially look to the highest state court to decide what that is, unless there’s some clear countervailing federal norm, and there is no such countervailing federal norm, and the only federal norm in the mix is that states get to make this decision along the lines that the latitude that the, uh, uh, rightly described that is federalism.
Wilfred U. Codrington III (00:27:58):
That that is, uh, great to, um, uh, clarify there. And there’s so much there that I wanna follow up on, but I do wanna come back to like the bigger point, which is that the us is unique for splitting the atom in elections. We were talking about this federalism here. The constitution gives, uh, authority to the states to legislate on federal elections though Congress does have preemptive power and it defers to the states almost entirely on questions regarding the regulation of state elections. Again, there are some constitutional limitations. This design is totally implicated as we’re talking about, um, what are, and, and Carolyn, maybe you would be best positioned to, um, answer this, given your, your paper, what are the potential consequences for election administration? If the, uh, independent state legislative theory were embraced by majority of the court,
Carolyn Shapiro (00:28:46):
There are a number of extremely disruptive consequences and the fact that they would be so disruptive in and of itself, I think is evidence that this is completely soy generous, that you know, comes out of nowhere and has no basis in history or practice. But let me give you some examples. Uh, most states have one set of election laws that apply uniformly to federal and state elections. They have what they call. Sometimes they call it a unitary election system. There are different names for it. But when we go to the polls, we generally are voting for a combination of state and federal, uh, offices. If the ISL claim were adopted in its sort of most fullthroated form that several of the justices seemed to have embraced. We could have a situation where the same exact statute would be interpreted differently with respect to federal elections or, and with respect to state elections, because the state court’s interpretation would stand at least under current theories of federalism and precedents would stand with respect to state elections.
Carolyn Shapiro (00:29:55):
The federal courts really have nothing to say about that, but the, the federal courts and in particular, the us Supreme court would have the right to say, yeah, we don’t agree with the way the state court interpreted this because we have our own special textualism approach. And so we are going to say that for purposes of state elections or excuse me, federal elections, it means something different. So just to give you, uh, an and that can an example of that, that could have happened in 2020. It didn’t because of the litigation choices made by some of the parties, but the Pennsylvania Supreme court concluded that the election statute there, uh, allowed state boards of elections to set up drop boxes. They said, first it’s an it’s. Uh, the statute itself is ambiguous as to this point, but we will, uh, construe it in light of our state constitution and our free and fair elections clause and say that therefore, if the state board of election wants to, or a county board of election wants to, can set up a Dropbox under the ISL theory, if that could go to the Supreme court, we could end up with a situation where those drop boxes would be invalid for federal elections.
Carolyn Shapiro (00:31:02):
If the Supreme court disagreed with that interpretation of the statute, the same is true. When it comes to holdings, that particular parts of a state, uh, election law are unconstitutional, or all of a state election law are unconstitutional. If a state, if a state constitution can’t limit what the legislature does, then a state Supreme court holding, finding that some kind of election law is unconstitutional, can’t apply to federal elections. And that could lead not only to two disparate systems in the same election cycle. It could actually lead to unending litigation in, in 2021, the New Hampshire Supreme court said that a particular election law having to do with registration was unconstitutional under the New Hampshire constitution. There was no cert petition filed. You’d think that would be the end, but the theory of the ISL claim might allow somebody to go to federal court anytime and say, no, actually for purposes of federal elections, we wanna revive that state law that the New Hampshire Supreme court struck down.
Wilfred U. Codrington III (00:32:12):
And, and that’s really, I, I think the point you raise about election administration, we’re, we’re administering two elections at any point, right? We have the state and we have the federal. And in fact, if we look back at history, that’s why we have the 26th amendment, right? Because, um, there was a push in some of the states to lower the, um, the voting aid to 18 Congress wanted to do it. And Supreme court said you can’t do that. And so we had to actually amend the constitution, which we know is really difficult to make sure that we didn’t have this dual system in the states. Um, I do want to go back to, uh, a point that, uh, Kate and Leah raised, um, you talked about whether federal court should actually be intervening at all. Is, is, is there a principled distinction for when federal court should be intervening in state court? Like when things have gone Tory I in the Bush V gore decision justice Ginsburg made a particular, um, appointed argument that, you know, we would be bracketing the decision of the Florida Supreme court with some of the state Supreme courts of the Jim Crow south era, if by, by, um, going about it in the way that the three, uh, concurring justices, uh, wanted to do that. Um, do, do you have a sense of like, what is a permissible, uh, or in principled way of deciding when federal courts should have to intervene?
Leah Litman (00:33:36):
So I think that the examples that justice Ginsburg gave that you alluded to, you know, provide the right baseline because they underscore the extent to which, you know, it is the, again, default rule that state court’s interpretations of state law, um, are, you know, deferred to kind of the final say on the matter, so on and so forth. And the instances where the Supreme court has said, no, that’s actually not the case were instances like NAACP versus Alabama, you know, where the state courts had basically. So manipulated state procedural rules. Um, so as to, you know, prevent the NAACP from challenging the state court’s order to disclose, you know, lists of their members and expose them to untold violence, like when the Supreme court said, actually no state courts, you messed up state law on that issue. They were able to point to, you know, clear examples of other state court decisions that the state court, you know, was inconsistent with.
Leah Litman (00:34:31):
It wasn’t just like, oh, well, like you came to one interpretation of the statute, but I actually think there’s a better one. It was, you know, a clear evidence of abdication, a clear evidence about why they did so in order to expose members of the NAACP to, uh, racist violence. Um, and, you know, again, given the context in which those decisions were made, you know, the civil rights era, um, you know, I think that that kind of underscores the, you know, baseline against which we expect the federal courts to generally defer to state court’s interpretation of state law and the circumstances in which they shouldn’t, right. Our circumstances akin to, you know, Jim Crow era south in which Southern state courts were functioning like kangaroo course, basically just legitimizing, um, violence against, um, you know, civil rights protesters and, you know, black Americans. So I, I think that, that, you know, the example that justice gins were made, um, you know, as a former civil procedure professor is, is a good one. And again, underscoring the extent to which independent state legislature theory in this claim of authority on the part of federal judges would again be so inconsistent with just how the normal course of our federal system works
Wilfred U. Codrington III (00:35:42):
Kate Shaw (00:35:43):
Thought, which is, um, you know, whatever, wherever the line is in terms of permissible, federal judicial intervention here, it has to be the valence of that intervention has to be in the direction of safeguarding, the federal, the right to vote and the interventions or the, you know, not yet majority commanding, but efforts to urge federal court intervention. Um, on the basis of this theory have in the 20, 20 cycle all had the opposite failings, right? So they have been in the direction of curtailing state efforts, right efforts by state bodies to facilitate access, to voting in federal elections and wherever the line is. Um, it seems to me that it, again, has to be in the direction of either a complete sort of abdication or breakdown in state processes as Leah was just describing or in any event, um, you know, in the direction of facilitating rather than thwarting access to voting. Um, and particularly in the name of safeguarding sort of state processes, which is like, you know, again, how the theory is framed to safeguard the, the, the federal constitutional sort of empowerment of the state legislature. Um, but all of that, you know, is actually done, I think in kind of profound disrespect of state institutional design and allocation of authority choices.
Vikram D. Amar (00:36:54):
So both can I just, can I just add, I mean, Kate and Leah, um, were exactly the question is whether there’s a federal interest here now, maybe there’s a federal interest in, in some minimal form of, of, of state judicial regularity and, and, uh, not, uh, a result in manipulation. And there may be a federal interest as Kate pointed out in, in, in, uh, the direction of the right to vote. There are also a lot of federal statutes that play here. Uh, the time for selecting electors has to be on, uh, on the same day. Um, there are obviously Wilford, you mentioned the 26th amendment, there’s the 26th, there’s the 24th, there’s the 19th, there’s the 15th, et cetera. The key question is the, where is the federal interest here? And the ISL proponents say there’s a generic federal interest in empowering the legislature of each state, VI, Avi, any other institution within the state, by virtue of the bear use of that word. And as Leah pointed out, if that were true, you’d have expected a lot of, a lot of history and discussion, um, in that direction and far from it. Uh, uh, um, it’s all the evidence, uh, suggests, uh, the other direction.
Wilfred U. Codrington III (00:37:58):
So I, I, you guys are raising such great questions and I have so many points to come back to. Um, but one of them is, um, what Kate and Leah were both just speaking about. Uh, and that is basically the 2020 election, right? All of your scholarship has touched on the 2020, um, election cycle. Actually, it’s a common theme for all of our scholarship. I’ve written about the pandemic primary in the presidential election, and with respect to the Perel principle in the shadow document, uh, docu, um, but perhaps it would be helpful if you can talk about that pivotal election cycle. What can we learn with respect to the independent state legislative theory coming out of the shadow docket dis decisions and the dissenting, um, uh, uh, opinions there, and, and maybe you can provide some update of what this might mean in 2022, as we’re undergoing this redistricting cycle and midterm elections,
Vikram D. Amar (00:38:57):
Caroline, I think you’re muted.
Carolyn Shapiro (00:39:01):
You think after two years, I would remember to unmute, um, the, I think the, the, some of the cases in 2020 demonstrate just how malleable this textualist approach to ISL is and how it allows for incredible gamesmanship on the part of litigants in, uh, I’ll just in the North Carolina litigation. For example, there was a, a settlement reached between the board of elections and some plaintiffs that Le led to the extension of the absentee ballot deadline and the state courts, including the state Supreme court said that that was within the board of elections power that it was, and that the legislators, there were two legislators who had intervened, which they had the right to do by statute. But the court said that they didn’t have the power. The state court said that they did not have the power to stop the settlement. They didn’t have to agree to the settlement in order for it to go into effect the, in the Supreme court justice Gorsuch, right.
Carolyn Shapiro (00:40:03):
Wrote an opinion in which he essentially said that the, the accused, the plaintiffs and the state trial court of collusion, he said, they rewrote the laws. And he said, of course, that’s in part, he said, it’s because there’s no natural disaster, which is the law that gives the board of election, a certain amount of flexibility in North Carolina. Of course, this isn’t a, a natural disaster. This is a pandemic. Now, if you go back and you look at North Carolina law, and the way that North Carolina law has used the word natural disaster with respect to the pandemic, that’s not at all obvious. So the, it basically allowed justice Gorsuch at the last moment without full briefing, without argument to reject on the basis of his own interpretation of two words in the statute, uh, something that all of these different bodies in the state had come to a different agreement about.
Carolyn Shapiro (00:41:01):
So that’s one problem. Another is that he has suggested in that opinion and in others that state legislatures may be limited. Not only that state legislatures themselves may be limited. It’s not just a question of whether state courts can do their jobs, whether state, uh, election administrators can do their jobs, but also that state legislatures themselves may be unable to delegate something to, uh, uh, election administrators. It’s something sort of a version of what we are seeing now in the revival of this major questions doctrine, if a justice thinks that it’s too big of a question or too big of a delegation, the ISL would allow the justices to say, yeah, no, we don’t think that was permissible. It has to be the legislature to make those decisions, which could be incredibly disruptive of longstanding professional election administration. So those are just a couple of ways that the 2020 election illustrated the, the dangers and the amount of discretion that the ISL theory irrigates to the Supreme court, it, the way that they are the justices who have embraced it, talk about it, it gives them this incredible amount of discretion and authority to just to come in and say, no, we don’t agree, which then creates incentives for the parties to selectively appeal, different types of issues to the court.
Carolyn Shapiro (00:42:24):
Uh, we, you can end up with a really bizarre patchwork where certain, uh, certain decisions are left for the state courts to decide, but the Supreme court jumps in, in others because the parties think that’s strategically helpful to go to the Supreme court with particular questions,
Wilfred U. Codrington III (00:42:42):
Uh, and, and something Caroline just raised was, um, or, and, and Vic as well, I guess, um, two points. One is about, um, procedural and, and substantive, uh, distinctions here and, and general and specific, uh, um, enforcement here of, of constitutional provisions. So what would be great is to have some clarity on the distinction between the procedural and substantive, uh, federal election law making requirements in the context of this theory and what the court has said about either and whether it has been consistent. And I, I guess the same would be helpful in terms of the enforcement of general versus specific provisions of the constitution. Uh, what, what does, what is that like here?
Vikram D. Amar (00:43:26):
So I’ll answer, what I think is, is the gist of your question Wilford. Um, there are four huge Supreme court cases in which ISL notions had been raised in the past century or so in Davis versus Hilda grant. The question was whether the people of Ohio could oversee the congressional districting process that had been engaged by the Ohio legislature. The legislature said, no under article one, this belongs to us, not to the people of Ohio Supreme court rejected that, um, in 1932 in smiley versus home, uh, the claim was that the governor cannot be involved in congressional district team because the governor’s not part of the legislature within the meaning of article one. Again, the court rejected that in 2015, in what I think is one of her best opinions, that’s underappreciated, uh, Ruth Bader Ginsburg wrote for a five, four majority, um, uh, rejecting the notion that the voters of Arizona violated article one, when they took power from the elected state legislature to draw congressional district lines away from that legislature and converted in a so-called independent redistricting commission.
Vikram D. Amar (00:44:32):
Again, the fullthroated claim was that under article one, this belongs to the elected legislature and, uh, the state constitution cannot give that job to somebody else. And the court rejected that. And then three years later in R versus common cause the dissenters in the Arizona case, chief justice Roberts, um, wrote an opinion, which expressly validated, um, the, the, uh, device at issue in Arizona and expressly validated rulings by the Florida Supreme court that had invalidated Florida statutes regulating congressional elections on the ground that those statutes violated the Florida constitution. So ISL has been repudiated time and again, which makes it kind of hard to understand why three justices, um, Thomas Alito and Gorsuch have in recent months indicated, um, uh, uh, um, uh, uh, that they agree with the, the, uh, theory at least provisionally. Um, it’s not quite four because Brett Kavanaugh has pointedly not joined those other three, even though he started the ball rolling here in 2020 when he wrote separately in, in a case outta Wisconsin, but he’s backed away from those other three, interestingly and importantly, Wilford to go to your question about what what’s gonna happen going forward. Chief justice Roberts seems to understand clearly the point that Leah and, and, uh, Kate make about the difference between, uh, uh, federal and, and, and, uh, and state courts, um, uh, intervening in, in a, in a federal election. So I’m, I’m hopeful that chief justice Roberts is fully on board, and I’m also actually quite hopeful that at least one of, uh, justice Kavanaugh and justice Barrett, uh, will see the light here. Um, but this issue’s not going away. They’re gonna grant sooner or later as, as Wendy pointed out in the intro.
Wilfred U. Codrington III (00:46:14):
I’d love to follow up on that point. So recently we have seen four justices embrace. So you mentioned Alito Gorsuch, uh, Thomas and Kavanaugh. Thomas was on that original three in the Bush decision or the, the concurrence. Um, we have seen, despite it seems like he’s stepping back the chief justice justice endorse it in some regard, right. In the Arizona decision that you mentioned, and it was his former boss, chief justice Requist, that was the, the, the writer of the concurring opinion Bush voor. We don’t know anything about justice Barrett. Um, do any of you have any thoughts about what we should expect in terms of these combinations, and is it something we should expect in certain instances where this theory might apply and, and it might be applied, not in other instances, um, beyond just hope, I guess, where, where, where can we see, uh, this going forward? Like, is there a path forward on the Supreme court?
Leah Litman (00:47:12):
I mean, it’s a little bit difficult to know, you know, as Vic noted, it’s certainly possible that at least the chief justice believes there is a distinction between cases coming out of like federal courts versus state courts when they’re challenging, you know, election restrictions. Um, but part of what makes this so difficult is a lot of these cases were decided on the shadow docket, um, which means there weren’t, you know, arguments in the cases there weren’t full opinions. And so we don’t have like clear statements from the justices who, for example, voted not to hear the Pennsylvania cases or who even would have stayed the, uh, you know, one of the Pennsylvania cases in the lead up to the election. Like, we don’t know why they did, so we don’t know why the chief justice didn’t do so. Um, and so it’s a little bit difficult to know exactly what the fault lines will be.
Leah Litman (00:48:00):
Um, I certainly agree with F that one possible fault line, one likely fault line is whether a case arises, you know, in federal court or state court challenging an election restriction on federal constitutional grounds, um, or state constitutional grounds. Um, I think that that’s one fault line, you know, and then, you know, as to your other question, just about like the predictions with justice Barrett, I mean, in some ways, you know, we talked about the origin story of this theory in Bush versus go like, in some ways the most probative thing is like she was on the Bush campaign and, you know, that argued for, um, you know, this theory when they asked the Supreme court to stay the recount, um, and, you know, declare president Bush, the winner. Um, so, you know, that’s certainly some indication. I mean, the only reason this theory has legs is there are at least three, you know, justices who are on the Bush campaign, who are now on the Supreme court in a position to make that theory into the law. Um, and so I think that’s a sign that she’s prob probably not gonna reject it wholesale. And the only question is like, what are the limits on this theory? Um, you know, that, that, you know, she or justice Kavana the chief justice might be possibly open to.
Wilfred U. Codrington III (00:49:11):
Great. And, and, and Leah, actually, I I’d love to ask you a specific question. Um, in 2016, I think it was, um, and, and, and the aftermath of the Shelby decision, you wrote an article called inventing equal sovereignty that appeared in the Michigan law review. And it talked about how the court raised up this obscure principle one that was related to the admission of states to the union, and not related to section five of the voting rights act and used that to render the crown achievement of the civil rights era in operative. Um, we now know that when the court mentioned that notion of equal sovereignty, uh, the passing decade before in Northwest Austin, those were kind of bread crumbs or flares of what it was going to do. Is this what we should be expecting now is this court, is this now the Mo of the court to just simply raise up some principles or fringe theories in dicta or concurrences, or even in fortune cookies? I don’t know, um, to just say, if we say this enough, it’s going to become law.
Leah Litman (00:50:12):
Um, I think that this is an Mo of the Roberts court, you know, you mentioned Shelby county and the voting rights act of one example, as one example of that, I think another great example is what they did to public sector unions, you know, basically chipping away, chipping away at, you know, uh, boo the case saying that public sector unions could charge fair share agreements. Um, I think, you know, we are on the precipice of seeing them do the same with Roe, you know, chipping away, chipping away, chipping away, and then outright overruling. Um, and I think independent state legislature theory is, you know, we are possibly heading down that path as well. Um, you know, the one kind of, uh, saving or one like, hope I have out of this is it seems like more people are paying attention to the possible emergence of this theory than we’re paying attention to.
Leah Litman (00:50:55):
You know, the other doctrines that the court was kind of hinting at and, um, toying with before they ultimately like use those doctrines to, you know, completely, uh, eviscerate, you know, either federal statutes, um, or, you know, important, um, state law arrangements. Um, and then the other kind of like bright hope is, again, like we don’t have a majority opinion yet, or a majority opinion embracing like the most expansive version of is L T. Um, and so I think now is really the time, you know, for more people to invest in learning more about this theory, understanding its flaws, um, and, you know, seeing what they can do, you know, both on like a legal scholarship litigation side, but also on, you know, more like political engagement side, what they can do to kind of prevent this theory from gaining ground and getting traction.
Vikram D. Amar (00:51:44):
Great. And, and could I add two, um, points to that too? Cause I think, um, Leon, I may disagree on some of those cases. I agree. Uh, Shelby county was a, a great essay and that’s, I, I would throw in a SEIUs and the Obamacare case, this idea that there’s a distinction in the commerce clause between activity and inactivity came outta nowhere. I would’ve called that a fringe theory in 2008, but it’s, it’s a setting in which the politics overtook the analytics. And by the time it got to Supreme court, it had five votes. One thing I think is kind of interesting, you know, we all probably read, uh, justice Alitos draft opinion and dos and the, the way it went out of its way to, um, show how little support there was for the way RO Roe was written. If, if the justices who sign on to such an opinion in dos have any sense of, of kind of intellectual, um, uh, consistency, they’re gonna have to grapple with the fact that whatever you think about ISL as a policy matter, it’s completely made up as an originalist and textualist and precedential matter.
Vikram D. Amar (00:52:47):
Uh, um, uh, so, so it just, after they, they say those things about RO they wanna make up yet. Another thing out of the blue, it’s gonna be particularly, I think, uh, Golling to, to a lot of us, the final thing I want to just add is, you know, there’s, it’s not coincidental that the ISL is being pushed by Republican advocates and not democratic advocates, cuz we’ve seen that state courts sometimes repudiate in the name of the state constitution, um, the, uh, the work product of democratic legislatures in congressional district, and we saw New York do that. We saw Maryland do that, et cetera, but here’s a very interesting and not coincidental factor. There are seven states that Biden carried that have Republican legislatures. There’s not a single state that Trump carried with a democratic legislature. So the ISL notion is not completely devoid of, of partisan consequences and nobody who’s open, who’s opening their eyes and looking can, can, can, uh, ignore that.
Wilfred U. Codrington III (00:53:49):
And I, I wanna ask a question for all of you actually, um, and, and maybe Vicky I’ll have a little bit more insight on this too, given that you covered a bit of bushy gore, uh, more broadly in your paper, but that bushy gore saga ignored the gross disparities in voting in Florida and raised them up in the us more broadly. Uh, we’ve seen Shelby county versus holder where the court eviscerated section five functionally of the voting rights act, which required pre-clearance from the states with historical discrimination in voting, uh, last year’s Banovich decision it dulled section two of the voting rights act in the vote denial context. So that’s legal obstacles to the casting and counting of ballots. And then this year in the shadow docket, we see the court has signaled its willingness to render that same section two, pretty much useless in the vote dilution context.
Wilfred U. Codrington III (00:54:36):
So they, you can crack and pack, uh, black folks and other folks in the redistricting con uh, context to water down their vote. And we also saw in the pandemic that what they did in the context of Florida law that would have Reen franchised, former, um, um, formerly convicted, um, persons, um, where a Florida trial court said that would constitute a poll tax in effect, um, to put it mildly. This court has not been an ally of particular members and communities in the American electorate, does the, is L T fit into this paradigm, but what does it say for voters of color throughout the country and poorer voters and just really the most vulnerable segments of the American elector trying to register their desires values in political will?
Carolyn Shapiro (00:55:25):
Well, I think it, I think it, it it’s very much related, uh, and there are all kinds of ways we can talk about that, but one is, has to do with, with gerrymandering and RUO right in RUO the court said, well, federal courts can’t say anything about partisan gerrymandering. And so what we have now are many, many highly gerrymandered states state legislatures in, in several of them in highly contested states like Wisconsin or North Carolina. And so if we have legislatures that are not representative of the people of those dates, which is the case because of RUO in part, then the is S L T has reinforces that at the federal, in, in federal elections and in, in particular, in presidential elections that it will, it would pre allow that, uh, unrepresentative legislature to override the will of the voters in a variety of different ways.
Kate Shaw (00:56:27):
Can I just, and I, can I just piggy back on that for one second and just to highlight a great law of the article by Miriam Seifer at Wisconsin called counter majoritarian legislatures, because at the heart of the is LT, is this romanticized notion that a legislature is the most representative body in a state. And so it vindicates principles of representation and democracy to empower the state legislature. But in, in reality, state Supreme court justices are often elected by the entire state, as opposed to this kind of gerrymandered representation in the state legislature, in a state like Florida. Sometimes you can manage to put on a ballot statewide, a refranchising measure that improbably because of really intense and amazing organizing passes that is far more reflective of the democratic will than anything the legislature enacts. Um, and so the is L T I think quite by design in the context of actual dynamics of representation and democracy in the states is profoundly anti-democratic,
Carolyn Shapiro (00:57:22):
There’s an example of that.
Vikram D. Amar (00:57:24):
The reason why, um, you know, there are seven, uh, Biden states with, with red legislatures is not just because Republicans gerrymander both sides gerrymander when they can it’s that in a lot of places, Democrats are already packed because they live, um, uh, closer to each other. So it’s easier to leverage a minority position or a bare majority position into a more stable majority position, uh, in the legislature. And it’s ironic as cases like RUO that Carolyn mentioned and, and all the cases Wilford that, that you, uh, and that Leah talked about that narrow the scope of application of federal rights, whether they’re federal constitutional rights to vote or federal statutory voting rights, rights to vote, everything got pushed in the direction. Okay, well state courts and state law, that’s the, the bubble in the rug. That’s the kind of the, the place where it all resides and ISL seeks to stamp that out as well.
Wilfred U. Codrington III (00:58:17):
Well, we’re at the point right now for audience questions. And so I have a couple here. Um, first, what does the independent state legislative theory mean for federal laws governing federal elections under that theory? For example, can legislators legalize unlimited corporate contributions, uh, or unlimited or corporate contributions to federal candidates?
Leah Litman (00:58:42):
So, um, independent state legislature theory are like some iteration of it has been invoked by some justices as kind of like a can of constitutional avoidance and how to interpret federal statutes. Um, so, uh, in a case challenging Arizona’s, um, proof of citizenship requirement, um, for voting, you know, a majority of the court in an opinion by justice Scalia, how that Arizona’s proof of citizenship requirement was, uh, preempted by the, um, the national voter registration act, um, which, you know, allowed individuals to like register to vote using this uniform, um, requirement, uh, in a separate writing justice, Thomas justices, Thomas and Alito indicated that they would have read the federal statute more narrowly to permit Arizona’s proof of citizenship requirement because reading it broadly in the way that the majority did, um, raised what they viewed as constitutional concerns in light of the Constitution’s allocation of authority to state legislatures to make the rules governing federal elections. Um, so kind of like beyond that, that is like a possible can of constitutional avoidance and then, you know, even more strongly a possible basis on which to like strike down federal statutes as like exceeding federal authority over elections. Um, those are kind of like the ways that we’ve seen ISL theory, like some, you know, variations on it kind of being floated when it comes to federal statutes regarding federal elections.
Vikram D. Amar (01:00:08):
I, I might add one quick thing. And that is, you know, Wilford, you mentioned earlier that Congress has a role to play in regulating federal elections. That’s certainly clear with respect to article one and congressional elections because the back the, the backup principle says, even though states get to prescribed time, place and manner Congress can do so by there’s no provision in the federal constitution that allows Congress directly to regulate the process by which states choose electors. Now, we have some cases going back many decades like boroughs and others that recognize a federal interest in a federal power there, but the same people who embrace ISL may not be so keen in recognizing broad congressional laws that apply to presidential as opposed to congressional elections, which for the reasons Carolyn described really make no sense because state elections, congressional elections and presidential elections are unitary. And so having different rules in all of them is a recipe for chaos.
Wilfred U. Codrington III (01:00:57):
Great. And I’m gonna go to the next audience question, and actually it might be useful for Carolyn to start with this one, because I have a similar question I’ll add on to it a little bit. What, if anything, can states do to protect themselves in the event of the Supreme court adopts the ISL. Um, and I’ll add to that um, because Caroline like many great papers, you and yours by adding some courses of action, potential, uh, conduct that, uh, actors can take. I just also want to ask while you’re thinking about it, um, if by taking these actions or, or by taking these actions, does it legitimize the theory at all? Like, does it sort of, in a sense, recognize what we are all at this point have acknowledged is pretty much a bunk theory.
Carolyn Shapiro (01:01:44):
So I’ll, I’ll answer your second question first, which is that there are actually different versions of the theory. There are more extreme and less extreme versions. And I think the, the, the least extreme version would say that if a fed, if a state legislature asserts the authority, this under this theory, uh, that that, that authority should be deferred to now. I don’t think any of us think that’s correct, but that’s a relatively narrow understanding of the is L C but some what the, what the Supreme court, the justices on the Supreme court who’ve embraced it have done is something much more expansive than that. So they’ve said things like, uh, as we’ve already talked about, we’re going to impose our own special textualism as a, a theory of interpretation. And we’re gonna decide whether or not the state courts properly interpreted their own law. We’re gonna say that a state constitutional provision can’t apply where even where the state legislature has enacted one single law to cover both state and federal elections.
Carolyn Shapiro (01:02:52):
So when, so that’s, that’s, it’s possible that some of the things I would recommend would at least, uh, acknowledge that there might be a way for state legislatures to do this extreme thing to do, to, to assert this authority, but it would, uh, it doesn’t necessarily require that, uh, conclusion. And it certainly doesn’t lead to this much more expansive approach. So for example, state legislatures could say, when they enact laws, these laws are subject to the state constitution where they could have a standalone law that says all of our election laws incorporate by reference the state constitution and all of the state, ordinary state, statutory interpretation, processes, and laws, some of which are statutes themselves. Uh, and that, that would actually give it to the extent that the is LT is supposed to be this pro democratic pro political accountability idea. That would mean that if the legislature wanted to assert this notional authority, it would then have to say, that’s what it was doing, the way it operates right now, or at least the way these justices suggest it might operate.
Carolyn Shapiro (01:04:06):
It’s all Subo right later on, the Supreme court gets to come in and say, oh, no, no, no, we don’t think that’s what the legislature did here. But the legislature never says that. And the people have no opportunity to register their, their views on that. So that’s something a state legislature could do a, a state Supreme court couldn’t write in a very clear way about how, what it’s doing fits into state law. Sometimes when state courts write their opinions, they’re writing for the audience of the, the people in the state, right? The law, the lawyers in the state, the legislators in the state, the parties in the case. But I think they should be writing in these election cases with an I also to the federal courts in a particular, the Supreme court, and explain why it would, should be understood that the legislature was in legislating against this background of state law and should be understood that they incorporated that state law into whatever election law they, they, uh, they’re construing or deciding on the constitutionality of. So that would, none of those things would eliminate the possibility of the Supreme court doing, uh, what it’s the, these justices have sort of been hinting at, but it would at least make it harder. And frankly, it would make it more obvious that what they are doing is not consistent with what the states themselves think they are doing state legislatures and state courts alike.
Wilfred U. Codrington III (01:05:40):
Um, so I, I have another audience question and we are gonna be moving towards the end soon. So I’ll ask this one and then I’ll, um, think of a, a bigger question for all of you to weigh in on. Um, the audience question is, um, how does this a theory relate to efforts we’ve seen to overturn the results of the 2020 election? Um,
Kate Shaw (01:06:04):
I’m happy to say a couple things about, and then Lee I’ll turn over to you. Um, well look, I mean, we actually got some disclosures, I think yesterday or earlier today. Um, some additional communications between former Trump advisor, um, John Eastman and some Republican party, um, some Republican legislators rather in Pennsylvania, um, that I think actually like our perfect illustration of the answer to that question. And you basically have Eastman urging the Republican legislators in Pennsylvania to do some like attempt to tabulate, the state’s popular vote to throw out, you know, tens of thousands of absentee ballots and then to directly appoint Trump electors. Because again, Carolyn sort of mentioned, there are, I think gradations in terms of the kind of strength of this claim, this independent state legislature claim, and, you know, the kind of most dramatic and, you know, unprecedented, um, in the modern era, I mean ever in terms of actually throwing out votes, but, uh, the most extreme version, um, is the sort of article two version having to do with presidential elections and presidential electors.
Kate Shaw (01:07:07):
And it basically claims that because the legislature has the power to choose the method by which electors are appointed, the legislature could retain for itself the power to directly appoint electors, including it seems lease according to this Eastman exchange, after individuals have cast votes pursuant to state law that assigns to the people as every state’s law does the power to elected presidential electors. Now, as a matter of history since 1860, every state has given the people the power to choose presidential electors rather than retaining it again for the legislature itself. And it was only 1860 because South Carolina held out for about three decades after the point to which every other state. And I think 1832 had given its population the power to a point or the subset of its population, of course at the time. But the power to a point its, um, electors again, or just elected its electors rather than again, appointing as the legislature, um, outright.
Kate Shaw (01:07:55):
But despite this, um, extremely long history of popular selection of electors, it seems that what this theory, um, suggests is that legislatures could, you know, seize back claw back the power to appoint electors, including after people have voted and including to appoint electors inconsistent with the expressed will of the people. So, um, of course like none of that was successful in 2020, but it is the, is LT that underlies this effort. Um, and, and one other sort of interesting thing I think to flag in that exchange sort again, these newly released documents, um, in this exchange again between Eastman and a Pennsylvania, G O P lawmaker, um, Eastman is suggesting that it’s important to do this kind of tabulation to provide some cover for the efforts to do the appointment outright. Because even though the theory claims that legislatures have this power, they can do it under article two.
Kate Shaw (01:08:45):
They don’t have to listen to what the people, um, have said with respect to their presidential electors. They can just appoint electors themselves. Um, there’s at least an acknowledgement that the kind of constitutional culture and history would be a substantial obstacle to an acceptance of a legislature’s efforts to actually do this thing. Um, and then I think sort of Leah said something earlier about the importance of, um, you know, scholars and litigators, but also sort of those who kind of speak more broadly to the public about these constitutional values, sort of making clear how perverse and anomalous an effort again, to seize back this power to, to appoint electors in particular after people have already voted, um, would be, you know, from the perspective of kind of basic constitutional principles and um, our history. So I think there’s every, you know, the question is important and the efforts around 2020 have everything to do with this, um, doctrine.
Wilfred U. Codrington III (01:09:37):
And, and so I, I we’re nearing the end. So I want to ask a sort of bigger question and hopefully all of you can weigh into some extent, um, were it not for the electoral college? Five of the current Republican appointed justices would not be on the court. Two of them were appointed by George W. Bush, three of them, as we noted, had worked on the litigation and the controversy that raised the is L T um, recently, and this theory has implications for the electoral college for political and racial gerrymandering for voter identification, laws, and other core, um, areas of election law. I, and you also raise what’s happening in Dobbs and what’s the, the theories put forth in, um, the, uh, affordable care act. Uh, the union cases I’m concerned about the legitimacy of the court. Um, do these justices now see this as a legal way to maintain conservative power in government and on the court controlled by a political, uh, minority or, or please convince me that there is some other explanation for ignoring history and precedent in short circuiting, uh, short circuiting, statutory analysis, and all the things that we’re saying are going on in support of this theory.
Vikram D. Amar (01:10:55):
Well, I’ll, I’ll, I’ll, uh, I’ll venture a thought here. First of all, I, I don’t wanna, uh, uh, argue with the hypothetical, but strictly speaking, we don’t know who would’ve won under a direct popular election in 2000 or 2016, because that wasn’t the rules in place. Um, so maybe George Bush could have beaten Al gore if he had known that the, the point was to win more popular votes nationwide. I don’t think so, but it it’s possible. And of course, Trump claims that he could have had had those been rules in, in place. Um, but, uh, your general more general point, I think is a good one, which is why as bad as, you know, the North Carolina and the, uh, Harvard cases may be, or from, uh, some people’s perspective jobs might be, this is fundamental. This is foundational voting rights and federalism are the two big, uh, uh, underlying theories or structures of our whole constitutional democracy.
Vikram D. Amar (01:11:46):
So to, to monkey with that without any, um, uh, text or history or, uh, or common sense or precedent judicial precedent, um, is, is troubling. I just wanna go back to one thing. Kate said, um, changing the electors after the election is particularly problematic because Congress has specified the date by which on which the electors should be picked. And Congress is given the power under article two to specify that date, which shall be uniformed throughout the United States. So going forward if a state, not the state legislature, but if a state wants to give its legislature the power to pick electors, um, it can do that under article two, but that’s very different than the legislature, um, uh, undoing the election that, uh, the rules that were in place at the time, um, that Congress said the electors, shall we pick what’s particularly troubling, I think is that there are a couple of proposals that would give the power to state legislatures rather than state judges to arbitrate contested presidential elections. And that runs a foul of provisions in state constitutions. But if the ISL notion prevails, then those state constitutional protections for judicial jurisdiction are irrelevant and laws like the ones being proposed, uh, would effectively give all the power to these gerrymandered elected, uh, uh, uh, legislatures. And I think that’s, that may be a point of no return.
Carolyn Shapiro (01:13:13):
I, I, I think I’ll, I’ll add a, I, I agree with Vic’s concerns. And I agree with the concerns that are embedded in the question you asked. Well, I think that there, there are a lot of the scholarship that has emerged since the 2020 election. And I speaking beyond the, the three articles that, that we all have written is there’s been some really deep dives into the, into the history of the electors and the elections clause into the, the practice throughout the United United States history. That is information that wasn’t available when these opinions were written during the 2020 election, because they were on the shadow docket. And I would like to think that justices who fancy themselves originalists will pay attention to this really remarkable wealth of scholarship that I is going to be before them whenever they confront this issue. And if they, if they reject it, it start, it will look increasingly politicized. They’re not to say they’re not already politicized, but increasingly so,
Leah Litman (01:14:20):
Um, the only thing I would add is in some ways, I think that while it is very important to debunk the originalist basis and like structuralist spaces and like textual spaces for independent state legislature theory, um, in other conversations, I think the most important register to have this conversation in is the one you ended it on Wilfred, which is in its current iteration is L T is an anti-democratic tool for minority rule. It is a way that it is a theory that could justify state legislatures throwing out the results of an election and seizing the ability to appoint electors for who they want to be elected. It would be a way of irrigating power to heavily gerrymandered, state legislatures and undermining voter’s ability to weigh in via state judicial elections and lose the protections of state constitutional provisions. You know, that again, they might have had a role in enacting, um, or, you know, otherwise, you know, legislatures enacted against. Um, but that is to my mind, like the most important thing to understand about the is L T is just, it is another tool. And in some ways like the most dramatic potent tool up alongside partisan gerrymandering for enabling anti-democracy and humanitarian role.
Kate Shaw (01:15:47):
Yeah. And if I could, maybe I’ll just link, um, the, what, both what Leah and Carolyn just said. I do think that, um, and it’s really valuable for Brendan to have convened this conversation. And I, I hope that there will be more such convening in conversations, but I do think that this is, um, a, a conversation and an effort that can happen as Leah just, uh, alluded to in multiple registers at the same time. So while sounding the alarm about the profoundly destabilizing chaos inducing anti-democratic potential of wholesale adoption of this theory is really important. So two, I think is reaching, you know, to the extent that justice is like the chief justice and justice Barrett, who I think do appear to have potentially justice Kavanaugh, something of an open mind about this taking seriously, the methods to which they have pledged Ty like originalism, like textualism, you know, Barrett and Kavanaugh more than, um, the chief on those methods. Um, but all of those point in the same direction, which is, this is a, a theory who without substantive and principal justifications. And I think that we can have both of those conversations simultaneously.
Wilfred U. Codrington III (01:16:46):
Well, well, thank you so much vicar, uh, Leah Litman, Carolyn Shapiro, and Kate Shaw. You have put on a great conversation. You certainly have me a little bit more scared, um, but your scholarship is really a service to our country. We’re so grateful that you made the time for this enlightening conversation today, and thank you to the audience for all of your questions. My name is Wilfred Codrington. You can stay up to date with key issues impacting our democracy with weekly analyses and insight from the Brennan center experts by signing up for the briefing, a email@example.com slash briefing, and be sure to RSVP for upcoming online public events. Thank you all for coming and supporting the Brennan center for justice and have a great day.