Amar and Amar on Independent State Legislatures

forthcoming in the Supreme Court Review

After various litigation during the 2020 election (now being echoed by the related but different claims in North Carolina), there has been renewed attention and interest to the Constitution's reference to the role of the state "legislature" in setting rules for elections (as Josh notes below).

I wanted to call attention to one such forthcoming piece by Akhil Amar and Vikram Amar condemning the doctrine. The piece is titled Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish, and it will be forthcoming in the Supreme Court Review, for which I am one of the faculty editors.

Here is the introduction:

The biggest news of OT 2020 was what didn't happen: In the run-up to, and aftermath of, yet another tight and hard-fought presidential election, the Supreme Court declined to double down on some of the worst aspects of the execrable Bush v. Gore opinions of twenty years ago.

Yet a close look at the Term reveals that there was a brief moment of genuine constitutional peril, a week when it seemed quite possible that the Court might once again—as it did in 2000—besmirch itself and plunge the country into a jurisprudential abyss.

In the days preceding the election of 2020, a veritable carnival of litigants—let's call them Bush-Leaguers—teed up several cases based on a seemingly plausible but ultimately preposterous constitutional theory that had won the support of three notable justices back in 2000. Echoing the Rehnquist-Scalia-Thomas concurrence in Bush v. Gore, the 2020 Bush-Leaguers correctly noted that Article II authorizes each state "legislature" to decide how that state's presidential electors are to be chosen. From this correct starting point, Bush-Leaguers quickly careened off course, claiming that state courts could not properly tweak state voting laws to bring these laws into alignment with state constitutions (as construed by these state-court jurists). Perilously, four justices at various points in the autumn of 2020 appeared to fall for this beguiling Bush-League idea—an idea often referred to as the "Independent State Legislature" (ISL) theory. None of the other five justices came close to explaining all the reasons—and there are several—why this theory fails.

In what follows, we show why Bush-League arguments were wrong twenty years ago; how they were shown to be wrong by sound scholarship in the ensuing years; and why they are even more wrong today, thanks to recent and dispositive Supreme Court case law. All sensible constitutionalists—whether on the Court or off it, whether originalists or precedentalists, whether left or right of center—should bury Bush.

We also aim to demonstrate that the errors and evils of Bush v. Gore went far
beyond the ISL ideas at the heart of the Rehnquist-Scalia-Thomas concurrence. Bush was wrong in just about every way that it is possible for a case to be wrong. If ever there were a bad seed, Bush was it. The recent efforts to revive and rehabilitate Bush's reputation are thus genuine cause for jurisprudential concern—even alarm. We urge today's Court to make a sharp and clean break with Bush as soon as possible—and in any case, well before the next contested presidential election, which may be quite harrowing enough without any monkey business from the Court.

The authors cover a lot of ground, including their disagreements with a recent piece by Michael Morley, which is currently the leading academic defense of some version of the independent state legislature notion.

Beyond Amar & Amar, here are several more articles via The Originalism Blog (1, 2), where Mike Ramsey observes that while he believes ("on a quick reflection") the Amar brothers seem correct, their view may not resolve the current litigation about court-drawn maps:

I haven't looked at this issue closely. On a quick reflection, it seems likely to me that this language was understood to give power to the legislatures of the states, acting pursuant to their (state) constitutional procedures. So there's nothing remarkable about the proposition that early post-ratification state constitutions contained provisions regulating federal elections. But it seems an entirely different matter to have, as the post itself describes it, "congressional maps drawn by [the] state's supreme court." The state supreme court is not the legislature. That's a fundamental proposition of eighteenth century separation of powers. The state supreme court can say, I would think, that a map drawn by the legislature is unconstitutional because it doesn't follow the requirements of the state constitution. But the state court cannot itself draw the map (or order a particular map, other than one drawn by the legislature) to be used. I bet there is no founding era precedent for a state supreme court prescribing the "Times, Places and Manner of holding Elections."

Anyway, it's great to see a renaissance of attention to text, history, and structure on these election law questions. I'm happy the Supreme Court Review will be part of it.