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Transcript: Legal Scholars Debunk the Dangerous ‘Independent State Legislature Theory’

This theory, if adopted by the Supreme Court, would undercut traditional checks and balances on state legislatures when they make laws for federal elections.

Published: May 19, 2022

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):

Right. And

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 news­let­ter­@thebren­nan­cen­ter.org 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.