The Independent State Judiciary Doctrine

The discourse about Moore v. Harper has proven predictable. We're told that the independent state legislature doctrine, whatever it is, doesn't actually exist! Much like the Second Amendment, the Non-Delegation Doctrine, and Sovereign Immunity, every conservative legal doctrine is really a fiction. Meanwhile progressive doctrines that do not really exist--a right to privacy, separation of church and state, and Bivens--must be preserved for the sake of legitamacisis. (I've merged legitimacy and stare decisis to save time.)

If the Petitioners in Moore are advocating for the independent state legislature doctrine, what are the respondents advocating for? I call it the independent state judiciary doctrine. In short, elected members of the state courts will have the final say over election law, without U.S. Supreme Court review.

I am not particularly surprised by the outpouring of support for respondents in Moore. The independent state judiciary doctrine is entirely consistent with notions of judicial supremacy. And not the newfangled conservative judicial supremacy where the people get to decide the abortion question. Rather, the independent state judiciary doctrine is consistent with old school, Warren-Court era judicial supremacy. That is, the courts can do whatever they think best to promote fairness. Even the most capacious provisions of the state constitution, drafted more than two centuries ago, can be used to invalidate legislative maps. Really, we have gone full circle from Justice Brennan's admonition that the state courts should be bulwarks of liberalism. But with the independent state judiciary doctrine, the elected legislature is helpless to change course.

Comments

[Martinned]

elected members of the state courts

That's a lot of words to say "politicians".

[Mr. Bumble]

Would that also apply to appointed members of state courts?

[Martinned]

That depends on how they are appointed and, more importantly, on what (if anything) they need to do to keep their jobs. The single most objectionable thing is a judge who needs to please the electorate to keep their job. The next most objectionable thing is a judge who needs to please one or more politicians to keep their job. A judge who keeps their job during good behaviour is already much closer to the "judge" end of the "judge - politician" spectrum. Add to that an appointments process that forces a degree of consensus and you're home free.

[bernard11]

Separation of church and state does not exist? Bullshit.

ISL is a "conservative legal doctrine?" Bullshit.

Nobody ever heard of it before recently. It's a doctrine invented out of whole cloth to try to get Trump, or his successor, named President without going to the trouble of actually winning the election.

It's scummy and dishonest, like Blackman.

[John F. Carr]

People have been talking about the independent state legislature doctrine for a long, long time without necessarily using those three words. It was hinted at in Bush v. Gore, for example.

[David Nieporent]

And it was litigated in AIRC while Trump was still a game show host.

[Randal]

Bush v. Gore is hardly "the period of the founding," which (I thought?) was the all-important timeframe for Constitutional interpretations. Where's the History and Tradition of excluding state courts from questions of election law?

Y'all are fuckers just fucking with us.

[TwelveInchPianist]

"Nobody ever heard of it before recently. It’s a doctrine invented out of whole cloth to try to get Trump, or his successor, named President without going to the trouble of actually winning the election."

SCOTUS ruled on it in 2015, when they ruled that rules that "...shall be prescribed in each State by the Legislature thereof..." can be prescribed by a commission that was independent of the state legislature.

Seems kinda hard to square with the text if you ask me.

[Martinned]

When has that ever stopped anyone?

[SenatorMoobs]

Not to mention that at the time of the founding, New York threw elections, including federal elections, to an independent commission including the governor and state judges, so as a matter of original public meaning, ISL is wrong.

[Martinned]

That might just mean that New York was doing something unconstitutional at the time. Such examples are never dispositive.

[SenatorMoobs]

…but no one said so at the time. That’s the point. Where’s the evidence that anyone thought that “legislature” meant “legislature without reference to state law?” I have evidence, in the form of New York’s practice, that it wasn’t understood to mean that.

[TwelveInchPianist]

"Not to mention that at the time of the founding, New York threw elections, including federal elections, to an independent commission including the governor and state judges, so as a matter of original public meaning, ISL is wrong."

In what manner? If this is something the state legislature authorized, it would hardly be inconsistent with ISL.

[David Nieporent]

In what manner? If this is something the state legislature authorized, it would hardly be inconsistent with ISL.

It's not. It was from the state constitution.

Also, you're not relying on the ISL theory being propounded by the petitioners in this case; they argue that even if the legislature authorized it, it's inconsistent with ISL because the legislature can't delegate its power.

[Brett Bellmore]

But one can take the position that, regardless, the independent state judiciary doctrine is even more wrong.

As I see it, there is a good argument that a state constitution clearly delegating that choice to somebody other than the legislature would be valid. The real constitutional issue is when the delegation isn’t clear.

In such cases, the federal constitutional language would appear to default to the legislature being in control.

And then the judiciary appeal to some vague hortatory language in the state constitution to override the legislature, or invoke their own power to grant equitable relief to set aside a law which clearly states that it is void if not upheld in its entirety.

That, it seems to me, constitutes the court seizing that power delegated to the legislature in the guise of enforcing the state constitution.

I think the appropriate response here is that, although state court decisions regarding the meaning of state law and constitution are normally taken by the federal courts to be decisive, in cases involving federal elections, the federal courts have to be able to review whether the state courts were reasonable.

By the way, as noted by the state supreme court in the above linked decision, the state constitution actually explicitly delegates this topic to the legislature itself.

[SenatorMoobs]

Don’t you think it’s fundamentally repugnant to the whole federalism/dual sovereignty concept that the federal government would purport to tell a state what it’s law is? I don’t think you get around that just because the question impacts federal elections. State law impacting federal elections is explicitly the point of the provision.

[Brett Bellmore]

No, I don't, because this is only in regards to FEDERAL elections.

[SenatorMoobs]

Now we’re just arguing about which judiciary, state or federal is “going rogue” lol. Again, state law affecting federal elections is the whole idea, so why does that give federal courts superior jurisdiction over state courts on state law, in the absence of an explicit grant of such authority.

[Benlwill]

Where do the federal courts get this power to review whether state courts are being reasonable? There has to be a grant of power to the federal courts, as they are courts of limited jurisdiction. That’s really the whole debate.

And if this Court is inclined to say that the federal courts get that power from the elections clause, they will be showing their hand. Where was this urgency to see if states were being reasonable in the gerrymandering cases? Roberts wrote that gerrymandering cases are non-justiciable in federal court. What he meant, it seems, is that Joe blow voters who get gerrymandered can’t take their state reps to federal court to see if they are being reasonable. But the offending gerrymander who gets sued in state court can run to federal court to enforce his federal constitutional right to gerrymander. It’s turning the Republican form of government guarantee in the federal constitution on its head by securing a federal right to gerrymander but no federal right to free and fair elections. It’s perverse.

And where was the urgency in the voting rights act cases to make sure states were being reasonable? Congress acted pursuant to constitutional amendment to pass the voting rights act and vest federal courts with jurisdiction in adjudicating elections. That’s of no concern to the conservative justices who decided pre-clearance was too burdensome on states.

Taking the broader election decisions of the Roberts court in context a disturbing pattern emerges of them doing anything and everything to make sure Republicans can game elections. If there is a less cynical reading of the history I am open to it.

[Stephen Lathrop]

Benlwill — You read Roberts exactly right. As revealed by his decisions and judicial tactics, Roberts' policy has been to keep his powder dry. He can pose as middle-of-the-road, and take cover behind an occasional nod to a case result with a left-leaning culture war valence. But on every case but one which has power to affect election results, Roberts has been partisan and pro-Republican, often going to outrageous extremes of creativity to do it. The one exception was the census case, where right-wings lies in court came to light, and made it impossible for him to back the Rs.

[David Nieporent]

Seems kinda hard to square with the text if you ask me.

Only if you interpret "legislature" to refer to a specific body rather than to the state's legislative process. But Federalist Society co-founder Steve Calabresi and the Amar brothers explain in their amicus why the ISL interpretation is wrong.

[TwelveInchPianist]

1. Why wouldn't I interpret “legislature” to refer to a specific body rather than to the state’s legislative process?

2. Even if I interpret it that way, a commission that is Independant of the state legislature is still hard to square with "state legislative process", which (although I'm no expert in AZ law) is normally not independent of the state legislature. Unless you're saying that any process that creates state voting rules is a state legislative process, in which case you're just reading "legislature" out of the text.

[LawTalkingGuy]

You can interpret legislature as the body, but the body that exists is one that is created by the state constitution. You should take the legislature as you find it for the purposes of the elections clause.

Ohio is also trying to bring a case to the Court on this theory after its Supreme Court said the the maps republicans kept putting forward violated the voter enacted anti-gerrymandering provision in the state constitution:

“The legislative power of the state shall be vested in a general assembly consisting of a senate and house of representatives but the people reserve to themselves the power to propose to the general assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided. They also reserve the power to adopt or reject any law, section of any law or any item in any law appropriating money passed by the general assembly, except as hereinafter provided; and independent of the general assembly to propose amendments to the constitution and to adopt or reject the same at the polls. The limitations expressed in the constitution, on the power of the general assembly to enact laws, shall be deemed limitations on the power of the people to enact laws.”

The people who ratified the state constitution and have the ultimate power over what the legislature gets to do reserved powers for themselves as part of the grant. So they get to pass initiatives that bind the legislature. This includes redistricting. The legislature is not a divine entity that exists separate from the constitution that created it. It is in fact not independent at all.

[Stephen Lathrop]

The limitations expressed in the constitution, on the power of the general assembly to enact laws, shall be deemed limitations on the power of the people to enact laws.

I wonder if any other state constitution includes such a self-contradictory peculiarity. The ability of the people to decree a constitution demonstrates their sovereignty. The purported limitation the constitution places on the people implies that either no power is sovereign, or that, somehow, the constitution has become sovereign over the people.

[David Nieporent]

The purported limitation the constitution places on the people implies that either no power is sovereign, or that, somehow, the constitution has become sovereign over the people.

I don't know why this is so complicated for you. The people adopted the constitution. The people can change the constitution if they want — or revolt and overthrow it, for that matter. What they cannot do is simply ignore it, but yet also keep it in place.

[Stephen Lathrop]

No, Nieporent.

What a government cannot do is simply ignore the constitution, but also keep it in place. The jointly sovereign People can do as they please, by whatever means they can organize to accomplish it. No government power exists to constrain them in the least, no matter what they choose to do.

Governments are constrained by sovereigns. Governments do not constrain sovereigns. If a government does attempt to constrain its existing sovereign, the government enters into a contest with the existing sovereign for sovereignty itself. Any power which can constrain a sovereign becomes by that alone a rival for sovereignty.

Any such contest must end with one or the other defeated. Contested sovereignty is an inherently unstable condition; history shows it does not last long. For that reason, wise sovereigns do not tolerate would be-rivals, and make it the first duty of their governments to suppress rivals for sovereign power. That is why federal office holders initiate their service by swearing an oath to defend the Constitution. The Constitution is in this nation the sovereign's decree proclaiming its power to constrain government within prescribed bounds, and also to vindicate personal rights it proclaims, against government power to abuse them.

Unlike governments, sovereigns rule at pleasure, without constraint. Whatever power you suppose exists to enforce the cockamamie rule you posited, or any other newly-made-up rule of governance, cannot in fact be exercised, except by overturning the existing sovereign. When you wrote, "What they cannot do is simply ignore it, but yet also keep it in place," did you pause even for a moment to visualize any scenario where that could actually happen? What real-world power do you suppose is competent to enforce any notion of what the jointly sovereign People, "cannot do?"

[David Nieporent]

No, Lathrop. Even using your formulation, your analysis is wrong, because the constitution is not the government. When the people adopted the constitution, they constrained themselves. Think of it like Congress passing a law regarding how Congress operates. Congress cannot prevent a future congress from changing that law. But until that law is amended, future Congresses cannot ignore it.

What real-world power do you suppose is competent to enforce any notion of what the jointly sovereign People, “cannot do?”

The government that those people originally constituted. Try to storm the capitol to change the government extralegally, and you will be shot by the government. Try to argue that you're sovereign and so you don't have to follow the constitutional rules for changing the government, and you will be shot by the government.

[MatthewSlyfield]

"Separation of church and state does not exist?"

It's a fiction based on commentary from the Federalist Papers. That language is used nowhere in the Constitution.

[JasonT20]

Then separation of powers is equally fictitious, along with checks and balances.

[bernard11]

No. It's not a fiction because the exact phrase doesn't appear. Neither does "freedom of religion," for that matter. Is that a fiction too?

[David Nieporent]

It's not from the Federalist Papers.

[Sarcastr0]

What is your vision of the judicial power?
Warren Court judicial review bad. State judicial review bad.

Are you coming out against Marbury?

Or maybe your lodestone being so purely partisan (and smug and spiteful) has rendered you ideologically incoherent.

[LawTalkingGuy]

It's crazy how Blackman posts these things decrying judicial supremacy like we would forget he spent two long years working on and posting about the strengths of case whose sole purpose was to get the Courts to destroy the entire Affordable Care Act based on the dumbest theory imaginable.

I mean that was the entire point of the case. Congress did not have the votes to repeal the Act....so they immediately tried to get the Court to do it instead and five hack judges actually bought into it. But suddenly judicial supremacy is bad.

[David Nieporent]

Well, we know he hates Cooper v. Aaron.

[SenatorMoobs]

ISL is about whether state legislatures are bound by state constitutions. Under ISL, a state governor’s veto of state legislation affecting federal elections is inoperative, in violation of the state constitution. Similarly, a popular referendum, such as the ballot measure in Alaska to institute ranked choice voting is also void or voidable by the legislature, again in violation of the state constitution. Meanwhile, if the legislature doesn’t like the state court’s interpretation of the state constitution, they can amend it. So respectfully professor, no.

[LawTalkingGuy]

The theory requires us to believe that same Constitution that contains bicameralism and presentment has a clause that prohibits state governors from vetoing certain legislation in accordance with their state constitutions just because it uses the word "legislature."

[MaddogEngineer]

No, that's not what the ISL means. I'm not saying that some of its most vocal advocates have suggested that. But that's not what is at stake here.

The constitutional violation is when state courts draw/impose new maps, or otherwise make specific changes to election laws. Perhaps empowered by state constitutions or merely under precedential equitable principles.

A state court can, under ISL doctrine, invalidate a congressional election map and order the legislature to draw a new one. It can't draw its own. Likewise a state court can't extend voting deadlines (for federal elections) beyond what is already enacted in law. Unless that law specifically authorizes state courts to do that.

[SenatorMoobs]

But where is this limiting principle in the text of “legislature?” Legislature” means “legislature”…except when you say it doesn’t.

[Sarcastr0]

You're wrong about what ISL stands for. It is not a limit on state court remedies, but on their jurisdiction.

[LawTalkingGuy]

An arbitrary federal limit on certain state law remedies is somehow even more tortured than ISL in its purest form.

[MaddogEngineer]

If that isn’t exactly ISL, then so be it. I’m not here to defend it, but I also don’t agree with what some state courts have done, as I previously explained.

My opinion has been formed in part from a Conspiracy post by Will Baude on 3/8/2022 analyzing the Amar & Amar theory (referenced in Blackman’s posting above), he also quoted Michael Ramsey of the Originalism blog (whose post I’ve read there):

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.”

This sounds about right to me.

[SenatorMoobs]

I take your point, but it doesn’t account for popularly enacted laws. They are not enacted by the “legislature.” Is Alaska’s ranked choice voting, which is clearly substantive law enacted by someone other than the legislature, invalid under your narrower ISL proposal?

[Sarcastr0]

I don't think you'll find many to disagree with this. The question is where the line of judicial review begins; which has a constant political argument up and down federal and state courts in the modern era. (Remember the old saw of what is judicial activism? Judicial courage when I disagree with the result.)

[MaddogEngineer]

I don’t have a great argument about popular referendum initiated laws. I suppose you can make an implicit republican form of government argument that they are equivalent to a legislative act and that if a state legislature allows them to exist without amendment, that’s acquiescence. Not pretty but sometimes there are no tidy answers.

I think state courts finding congressional legislative maps unconstitutional is allowed but not imposing any maps is not, is a pretty clear dividing line. As is other branches of state government, secretary of state or supreme court, not being allowed to change rules defined in election law when not explicitly authorized by law. (As happened in Pennsylvania in 2020 and survived a challenge up to the state supreme court, with that court claiming the state constitution allowed courts to do so–no, because the court is not the legislature, the state constitution on its own cannot override Article I section 4. No, these changes were not material in affecting the outcome so I’m not making a stolen election claim.)

[Sarcastr0]

I agree that referenda sit a bit awkwardly, but concur they seem within the envelope of intent, especially when authorized in the state constitution or delegated by the legislature. The processes in some states are a bit rube-goldbergy for my taste, but it's not top of my injustices list.

I agree with you that judicially mandated maps are strong medicine, and pretty strongly disfavored. But I also think they need to be an arrow in the remedies quiver should state legislatures be recalcitrant in complying with judicial orders.

To tell the truth, I would not mind some SCOTUS guidance on what to weigh to determine the rare times when that remedy is appropriate.

[SenatorMoobs]

What I don’t understand though is where the distinction is coming from. If election law can be substantively changed by popular direct vote or by state courts as a matter of the state constitution, neither is a state “legislature.” As soon as you start saying that maybe a referenda is a permissible “legislative act” you’ve given up the whole game in my mind.

[Stephen Lathrop]

SenatorMoobs — Do you distinguish between an initiative and a referendum? Arguably, using 18th century political theory, they differ. The initiative, originating with the sovereign people, would qualify as a sovereign decree, on par with the state's constitution. The referendum, if initiated by the legislature and ratified by consent of the people would be more legislative in character, but perhaps not plainly different from a constitutional amendment.

[Randal]

But how do you get from there to Supreme Court jurisdiction? This isn't really any different from typical objections to when courts, whether state or federal, take it upon themselves to "fix" laws. That was the whole conservative objection to Robert's approach to Obamacare, no?

Normally, the Supreme Court doesn't get to step in to intra-state politics and say, "No, State Supreme Court, even though we do it all the time ourselves with federal law, we think you went too far in your remedy to a state constitutional violation by rewriting state law in a manner reserved to the legislature." Why should they get to do so here?

[Commenter_XY]

This (Ramsey cite) was a great quote that really helped this learner understand this entire case, MaddogEngineer. Thanks for that. This interpretation of where the boundaries are between state and federal was very helpful, and especially making clear the boundaries of state court and state legislature was crucial.

This part is the crux, right = But the state court cannot itself draw the map (or order a particular map, other than one drawn by the legislature) to be used.

That seems to make sense to me. I am not being obtuse, but why is that a problem (not letting a state supreme court redraw legislative boundaries, or order new maps re-drawn)? The ultimate remedy (check on power?) is the people voting out the legislators who drew the maps, right?

I am trying to understand why this interpretation is causing so much angst. The issue is fascinating. The layer of the NC supreme court having elected justices (not appointed by Governor and confirmed by the Legislature) is pretty unique, too.

[Stephen Lathrop]

The ultimate remedy (check on power?) is the people voting out the legislators who drew the maps, right?

Not right. You can't have an ultimate remedy by use of a method that the problem you are trying to remedy has capacity to obviate. That is self-contradictory. Gerrymandering has power to burden or even prevent legislative accountability. To maintain legislative accountability, you have to have power the legislature cannot defy.

[bernard11]

But at some point the court has to draw the map, or provide a set of acceptable alternatives, or something.

Because otherwise the legislature can just continue drawing unconstitutional maps forever, and then one of them will have to be used.

[David Nieporent]

A state court can, under ISL doctrine, invalidate a congressional election map and order the legislature to draw a new one. It can’t draw its own.

That is not correct. You are proposing what might be a limiting principle that people trying to compromise might come up with, but the ISL doctrine does in fact say that state courts have no say whatsoever.

Specifically, the petitioners in this case claim that striking down the election map was also a violation of that doctrine. From their opening brief:

Accordingly, the General Assembly is the only en- tity with the authority to draw North Carolina’s con- gressional districts. Yet the courts below exercised precisely that power, in direct contravention of the federal Elections Clause. They did so in two ways. First, the North Carolina Supreme Court’s February 4, 2022 Order striking down the General Assembly’s original congressional map on state-law grounds directly seizes the power to regulate the manner of congressional elections. And second, having rendered the General Assembly’s original congressional map “a nullity,” Smiley, 285 U.S. at 362, the State courts then compounded the constitutional error by creating, and imposing by fiat, a new congressional map.

You're trying to make their position seem less radical by cabining it to the second point. But they don't think state courts — or state constitutions! — have any role to play.

[MaddogEngineer]

My thinking on this is not new. Because of the separation of powers, a court cannot step in and implement an action that can only be performed by a legislature. Best example is a court can order a legislative body to raise taxes, hold it in contempt for not doing so, but cannot implement that tax change itself. I believe something like this has happened in school funding cases, or other municipal budgeting crises.

I think the second part you quoted above (compounded) also qualifies as ISL. It's certainly commonplace for advocates to ask for as much as they can, hoping to get at least some of it.

What's crazy is the idea that courts can act in place of the body explicitly granted such a power under the U.S. Constitution.

[TwelveInchPianist]

"But they don’t think ... state constitutions! — have any role to play."

The brief you referenced above says something slightly different.

"ISLers also say that, even if some state constitutional limits do legitimately constrain a given state’s ordinary elected legislature, federal rather than state courts should primarily interpret and apply those limits."

[SenatorMoobs]

The idea that it is ever appropriate for the federal judiciary to tell a state judiciary what that state’s law is seems totally unmoored from any previous practice or theory of our constitutional system

[Brett Bellmore]

The alternative is that you have to let a state judiciary gone rogue decide who elected federal officers will be.

[SenatorMoobs]

“Go rogue” assumes the conclusion. Maybe it’s totally appropriate under state law. Or maybe not, but that’s a state law question to be figured out at the state level.

[bernard11]

a state judiciary gone rogue

As opposed to a state legislature gone rogue?

[Sarcastr0]

Come on, Brett. Judicial review has been the final stop of legislation since Marbury.

'But what if the judiciary does bad things?' is an incoherent argument - it can be tweaked to apply to every single endeavor done by every institution and individual.

You need more than that.

[Town Crier]

The important word in A1S4 is "Regulations". It says ""...Congress may at any time by Law make or alter such Regulations." So the very sentence being argued about uses the words "Laws" & "Regulations". Had the Authors meant for State Executive veto power or State judicial review they would have referred to them as Laws. (See Article 1 sec 10 reference to States executing its inspection Laws). A Law is passed by a Legislature, signed by an exec or veto override then subject to courts review. A Regulation is written by an entity that has been authorized by Law to write such "Regulations" and they have the force of Law like the atf, fda or irs "Regulations". The Constitution is the Law of the Land and authorizes the Legislature thereof in a State to prescribe "Regulations". Further proof of "ISL" is the existence of the independent executive branch. When an executive branch demands the return of a fugitive or chooses not to do so, a State Legislature or judicial branch can't override of adjudicate in opposition to the executive branch. How about if a Legislature ratified and Amendment, do you think a Court can overrule that or a governor veto it? Nope. How about Article 1 sec 3 when the Legislature thereof made a choice for electing Senators, could the State Executive veto or courts say anything to the contrary? Noooo. Then there is the 17th Amendment. The executive "shall"(affirmitive) issue Writs of election unless the Legislature thereof "may" (voluntary) empower them to make temporary appointments. Do ya think the executive could veto such empowerment or the removal of such empowerment? Negative on its face.

[LawTalkingGuy]

Does Blackman even realize that this theory would invalidate popularly enacted state laws and constitutional amendments? I can't think of a greater act of judicial supremacy than a federal court claiming the federal constitution prohibits states from enacting laws to constrain their legislatures in the area of federal election laws.

[Randal]

That would require deviating from his law journal of choice, Fox News.

[David Nieporent]

The independent state judiciary doctrine is entirely consistent with notions of judicial supremacy.

Yes, and also precedent and history. (Also, stop trying to make fetch happen.)

The independent state legislature doctrine, meanwhile, has no support anywhere. It is something someone clever came up with by looking at words on a page and saying, "Hey, these could be interpreted this way even though they never have been. Let's try it; what do we have to lose?"

[bernard11]

So when the Constitution says,

"The Congress shall have the power to....."

that is an absolute grant of power, and neither the President nor the Supreme Court have any sayso in the matter?

[SenatorMoobs]

It sounds like Professor Blackman would agree with that as far as SCOTUS is concerned…unless the ACA is involved.

[David Nieporent]

Well, probably not — because other provisions in the constitution do expressly grant powers to the other branches — but it does seem to be the implication of that ridiculous approach to constitutional construction, yes.

[TwelveInchPianist]

1. Congress does have the power make laws without the President having any sayso, and the Constitution specifies how Congress can exercise that power.

2. SCOTUS doesn't get to veto acts of Congress, although they are charged with interpreting what powers Congress has.

[David Nieporent]

No, Congress does not have that power. It has the power to supersede the president's say so, but not to make laws without the president having any say so.

In contrast, the ISL doctrine says that the state executive — not being part of the state legislature — has no power to veto a legislative act relating to federal elections.

[MaddogEngineer]

Well, this is where common sense breaks down. From the colonial era of governance, the Founders were certainly aware that some states procedures for passing laws included an executive veto, meaning the active participation of a governors in lawmaking. That's where they got the idea for the presidential veto, leveraging the preceding decade of state constitution drafting. It strains credibility that the Article I section 4 clause would have assumed anything otherwise. Likewise suggesting the ISL theory. It's just a committee of style literary choice to describe state lawmaking, as opposed to executive proclamation or judicial decision.

[SenatorMoobs]

I don’t know if that’s totally right…I thought only one state (New Hampshire maybe?) had a governor veto at the time of the ratification. Could be wrong on that.

But yes, that’s the point, if state courts are excluded because they aren’t the legislature, it necessarily excludes governors, independent election commissions and popular referenda as well. The whole premise of ISL is that even if the state constitution grants state courts a role in election law, this federal provision eliminates that role for purposes of federal elections because courts aren’t “legislatures.” Same would be true for all others.

[Brett Bellmore]

There are multiple reasons you don't want the courts making election rules. The biggest, I think, is "Quis custodiet ipsos custodes"; No man should be the judge in his own case, but once you've got the judges making the rules up themselves, they're unavoidably exactly that.

[Sarcastr0]

Judges aren't elected. State legislators are...

[David Nieporent]

Many state judges are elected.

[Sarcastr0]

Yep. Got that wrong.

[SenatorMoobs]

I can understand why, as a policy matter it’s not great to have those who are elected make election rules, but I fail to see how that resolves the meaning of this provision of the constitution. Neither state legislatures nor state court judges are elected in federal elections.

[bernard11]

There are multiple reasons you don’t want the courts making election rules. The biggest, I think, is “Quis custodiet ipsos custodes”; No man should be the judge in his own case, but once you’ve got the judges making the rules up themselves, they’re unavoidably exactly that.

There are multiple reasons you don’t want legislatures defining legislative districts. The biggest, I think, is “Quis custodiet ipsos custodes”; No man should be the judge in his own case, but once you’ve got the legislators making the rules up themselves, they’re unavoidably exactly that.

Really, Brett. It is the legislators who are making the rules for themselves, and the judges who can make sure they do it according to the state constitutions.

Your own argument defeats you.

[Town Crier]

That clause is followed by the list of areas in A1S8 that Congress Shall have power to do right? Well the last clause of A1S8 says To make all Laws which shall be necessary for carrying in to execution the forgoing powers.
Laws are passed by a Legislature and either signed by an executive or a veto override so that is not evidence of Congress being independently recognized. Go back and read A1S4 and see the use of the words Law and Regulation. Which entity has to pass "Laws" and which entity prescribes "Regulations" regarding A1S4? While your at it tell me if you think State Courts could interfere with the Legislature thereof electing Senators in A1S3 or if they could interfere with the State Legislature ratifying a Constitutional Amendment? Lol I'll wait. Oh how about the executive of a State being given the power to demand the return of a fugitive from another State? Do ya think a State Court or judicial branch could tell their executive that it must demand or no you will not make that demand.

[Randal]

God you’re a tool. There’s nothing conservative about empowering the federal judiciary to make state election law. Talk about judicial supremacy!

This is simply a Republican power-grab.

[MaddogEngineer]

How is any of this empowering the federal judiciary to make state election law? Especially since what is at controversy here ONLY applies to elections for federal offices. Federal courts have no authority under any ISL theory to intervene on behalf of a state legislature’s authority about boundaries of state legislative district maps. (Stating the obvious to ward off trolls, federal courts do have civil/voting rights jurisdiction over such acts.)

[Randal]

Because the Constitution empowers the States to set election processes, even for federal elections.

There's some room for Congress to set broad standards, but that's not at the crux of this controversy. The question is the extent to which the Supreme Court gets to involve itself in adjudicating a power that the Constitution clearly grants to the States.

Of course, the Supreme Court loves the smell of its own farts, so it's likely to decide to fart all over state election law given the chance.

[Brett Bellmore]

"Because the Constitution empowers the States to set election processes, even for federal elections."

But, of course, that's exactly the point: It doesn't: It expressly empowers state LEGISLATURES to set election processes.

So, sure, ISL theory makes no sense if you disregard the actual text of the Constitution, replacing it with language stating something different. But presumably the courts aren't supposed to do that.

[Rev. Arthur L. Kirkland]

Mr. Bellmore, by referring to this as a theory rather than a doctrine, indicates he is a more reliable legal scholar than is a faculty member of a bottom-scraping southern law school.

Way to go, Mr. Bellmore!

[SenatorMoobs]

Ok let’s Scalia this, if you really insist. “Legislature: a body of persons having the power to legislate specifically : an organized body having the authority to make laws for a political unit”

Miriam Webster. https://www.merriam-webster.com/dictionary/legislature

How are courts necessarily excluded from that, if they participate in law-making under state law?

[Town Crier]

They are excluded this way Mr Scalia: A "Law" as you point out is passed by a Legislature which must be signed by the executive branch or a veto override. Then that Law is subject to the review by the judicial branch of that government.
"Regulations" however are written by an entity that has been authorized by "Law" to prescribe such "Regulations" and the "Regulations" have the force of "Law" in example the atf, fda & epa. The Constitution is the "Law of the Land" and authorizes State Legislatures to prescribe the federal election Regulations. See the actual words in Article 1 sec 4 "...Congress may at any time by Law make or alter such Regulations."

[Randal]

The headline here is that regulations aren't subject to judicial review. That's news! What a convenient loophole.

[Town Crier]

They are subject to the authorizing govt ie: federal election, federal regs all under federal Constitution, federal Legislature, federal laws and federal courts. State Elections fall under state Constitutions, state legislature, state laws and state Courts but must not violate federal rights like who gets to vote. It's not rocket science its jurisdiction.

[Randal]

You seem to be confused.

They are subject to the authorizing govt ie: federal election, federal regs all under federal Constitution, federal Legislature, federal laws and federal courts.

You mean state legislatures. And state executives actually run them. So... state courts.

State legislatures are not acting as an agent of the federal government in their election role. They retain their state sovereignty.

[Town Crier]

I respectfully disagree. Representatives and Senators are a creation of the US Constitution. The Constitution grants the power to prescribe those "Regulations" not State Laws to the Legislature thereof. A1S5 grants the power to Judge the Elections of Senator and Representative to each House of Congress. State Judicial branches receive no mention at all in the Constitution. The closest reference is in A6 where judicial Officers in the several States must swear an Oath to the Constitution that otherwise makes no mention of them. The grant of power is nearly identical in A1S3 as it is in A1S4. A1S3 gave the choice of Senators from a State to the Legislature thereof. I can find no example of a State Executive vetoeing such choice nor of a State judicial branch overruling such choice. I think it was Maryland v United States decision where scotus ruled that Maryland could not tax a bank established by Congress because it was an "installation" or "creation" of Congress therefore subject to federal taxation and regulation not State taxation and regulation. State Legislatures are granted powers by the Constitution, State Executives are granted the power to demand the return of fugitives and a couple of duties like; they shall issue "Writs of Elections" for vacancies in the House or pending empowerment by the State Legislature shall fill vacancies in the Senate (17th Amendment). All without 1 iota of a mention of State judicial branch involvement. Federal Elections are not State elections. Congress tried to make 18 the voting age for all elections in the 60's. Scotus struck that down in regard to State Elections saying their jurisdiction was only the federal elections, so they did that. Instead of keeping 2 sets of voters 18 & up for federal elections and 21 and older for State Elections (14th Amendment set 21 and male to vote) States ratified the 26th Amendment making 18 the voting age for all elections. Sorry so long but i think deep elaboration was necessary.

[LawTalkingGuy]

Yeah it does say legislatures. The legislature that exists by virtue of a state constitution. It is created by the people of the state who ratified the state constitution. It does not and cannot exist independently of other branches of state government created by the same constitution. A state legislature isn’t a divine entity that precedes its constitution. The people of the state give it power and can reserve power for themselves through ballot initiative or place executive and judicial checks on the power that they have given. They can also decide that a legislature shouldn’t have a power at all. And the US constitution doesn’t contradict that.

And indeed any other interpretation might run afoul of the Tenth Amendment. That amendment speaks of power delegated to Congress or prohibited to the states. The US constitution vests zero power in any states, let alone a specific branch of state government. A decision saying that the people of a state can’t direct how their own legislative power is exercised through its constitution directly contradicts the idea that power is reserved in the states and in the people.

[Toranth]

???

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

[Town Crier]

You're hilarious. When the Constitution says States it is referring to the government of the State as a whole. 10th Amendment is a perfect example. But the Constitution also names State Executives independently and more than once, same goes for State Legislatures. What entity gets zero mention ever in the Constitution, EVER? State judicial branches, yet you ascribe to them an immense amount of power. The closest you will find is in Article 6 where the Judicial Officers of the United States and the several States must swear an Oath to support the US Constitution.

[Town Crier]

"The people of the state give it power and can reserve power for themselves through ballot initiative or place executive and judicial checks on the power that they have given. They can also decide that a legislature shouldn’t have a power at all. And the US constitution doesn’t contradict that."

By that logic the Constitution is dead. If a State Constitution or state ballot initiative can override a clause of the US Constitution like the power grant contained in Article 1 sec 4 then a State Constitution or ballot initiative could override any part of the Constitution. That's just silly. The US Constitution and Laws of the United States are the Law of the Land not the State Constitutions.

[Randal]

State legislatures, sure. And do you think those state legislatures are functioning as an organ of the state, or are they being co-opted to function as part of the federal government in this purpose only?

[Stephen Lathrop]

Once again, in a nation run by a joint popular sovereign, voting is not a mere right. It is a sovereign power. Governments, including state governments, are subordinate to the sovereign; they are not empowered to constrain the sovereign, nor to make the sovereign's constitutive decisions in its stead.

With that as background, it is easy see what to make of this:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

That is a delegation of purely ministerial powers to conduct elections. There is nothing in it to empower deciding the results.

[David Nieporent]

1) The word "ministerial" does not mean what you think it means.
2) Nobody is talking about "deciding the results" here, so why you felt the need to say that is unclear. This is about congressional districting, not results.

[MaddogEngineer]

Perhaps he's referencing the other boogeyman part of the anti-ISL argument: that a state legislature might discard the certified results of a popular vote for president and impose a different slate of electors after election day. While that has never been litigated (because it's never happened) there's pretty much universal agreement doing so would violate existing federal law and/or the U.S. Constitution. I think dicta in Bush v Gore said as much, but that was just dicta.

[Brett Bellmore]

It's pretty obviously in violation of the Constitution, because the Constitution gives Congress the authority to declare when the electors will be chosen, and after that... They've already been chosen!

[JasonT20]

It’s pretty obviously in violation of the Constitution, because the Constitution gives Congress the authority to declare when the electors will be chosen, and after that… They’ve already been chosen!

And this was the entire reason for the so-called "fake electors" for Trump. Now, in at least one case, the document these alternate electors signed explicitly said that it was only going to be valid if later court rulings tossed the ones previously certified. That was not fraudulent. But the others had no such stipulations and presented themselves as the Electors and their votes.

In reality, that is the whole reason why the efforts to stop the certification on Jan. 6 were not constitutional. Congress has no authority to reject the Electoral Votes of any state. The Electoral Count Act was only for a specific circumstance that has only happened once, in 1876, as far as I can tell. Then, there were actual disputes over who some of the proper Electors were, and those disputes were not resolved before it was time for Congress to meet and count the Electoral Votes. (And this was the motivation for passing that Act in the first place.)

None of that happened in 2020. Each state followed its own procedures and certified a single slate of Electors as given by the Electoral Count Act. Arguments from the Trump side that states didn't really follow their own laws are beside the point. Those arguments didn't go anywhere in court, so that was that.

[Brett Bellmore]

I'd agree, with the proviso that, no, each state did NOT follow its own procedures, in the sense that in a number of states ad hoc changes were made to election procedures without the consent of the legislature. And this very well could have changed the election outcome, which was very close indeed in the EC. (44K votes away from Trump winning.)

And that wasn't initially beside the point, but I'll agree that after the EC voted it was too late to do anything about, and Trump should absolutely have dropped his election challenges at that point, and admitted that the election had been stolen fair and square.

But this is the whole reason things got so horribly toxic: In perhaps the lowest trust political environment since the run-up to the Civil war, people insisted on winging it. That was mind bogglingly stupid, if the aim was not to make sure the losers would have adequate cause to doubt they'd actually lost.

I've said this over and over: The 2020 election should have been the most by the book election in history, every 'i" dotted, every "t" crossed, comply with every single law with monomaniacal determination. Nothing less is enough in such an environment.

There was absolutely no excuse for those ad hoc changes. Covid had been around plenty long enough for any adjustments to have been made by the normal legislative procedure, it was no longer 'emergent' enough to qualify as an emergency.

Indeed, I sometimes wonder if Democrats hadn't anticipated losing that election, and weren't setting things up so THEY could claim they'd been robbed if it happened.

[Sarcastr0]

You say most by the book, I point to the Covid exigency.

You don't like some of the court rulings, and thus decide you can now say the election was less than legitimate.

I think that's just sour grapes and the institutions did what they were supposed to, and whether you or I or Trump agree with them or not is not really material.

You can appeal to the many GOP nutters as though they need to be indulged for the sake of the state. I'll point out that kowtowing to people who really seem like their main bag is that Dems themselves are illegitimate and seem willing to wreck our Republic to get at them seems nuts.

But that's kinda you, isn't it? Dems have the burden of keeping the Trump voters from rejecting all institutions and going for...nonelectoral methods. Which from the above, you think is a burden they haven't met.

So....you going to endorse another Jan 06? That where you're taking this? Because your burden shifting seems to lead there.

[David Nieporent]

I’d agree, with the proviso that, no, each state did NOT follow its own procedures, in the sense that in a number of states ad hoc changes were made to election procedures without the consent of the legislature.

Making changes to election procedures without the consent of the legislature is part of each state's procedures.

[Toranth]

Except for the places the courts have ruled it wasn't.
Or where the courts rules that it wasn't, but they were OK with it because the elected judges were willing to overlook the violation just this once.

[JasonT20]

I’d agree, with the proviso that, no, each state did NOT follow its own procedures, in the sense that in a number of states ad hoc changes were made to election procedures without the consent of the legislature.

I already addressed that. The place to make this argument is in court, and Trump and other Republican efforts to have votes tossed for these reasons didn't go anywhere. That left the certified results of each state as unable to be challenged by Congress.

Every election in recent decades has had its 'irregularities' and disputes over procedures that ended up in courts. Some of those issues and disputes have been significant and important issues to raise and try to resolve. But once legal challenges are over, and state officials designated by state law to be the ones to certify results and finalize them have signed off, that is going to be the end of it. If later investigations turn up fraud that would have made a difference, then you might have reason to pressure the person that benefited from that fraud to resign, or to be impeached or recalled if there is evidence that they were involved or at least aware of the fraud, but that's it.

The standard of proof of fraud before disregarding the official results of an election needs to be enormously high, if it going to be allowed at all. Since election fraud is a crime, I would say that the standard of proof should be the same as for a criminal conviction: beyond a reasonable doubt.

[Stephen Lathrop]

Nieporent — This meaning, marked as archaic in the OED, is the one I had in mind: “acting as an agent, instrument, or means in achieving a purpose.”

By the way, is it your impression that when state legislatures draw election districts they give no thought to what election results will follow? If the U.S. Constitution were read as tasking the state legislatures with ministerial exercise of district drawing—using the meaning quoted above—my hope is that court cases to prevent partisan gerrymandering would gain traction—the reasonable reading of, “purpose,” in that context being to achieve a fair election, not a rigged one.

But I was indeed also mindful of the issue mentioned by MaddogEngineer—recognizing that this case could be decided in such a way as to pave the way for direct election interference if the opinion’s author wanted to do it that way.

[Noscitur a sociis]

Nieporent — This meaning, marked as archaic in the OED, is the one I had in mind: “acting as an agent, instrument, or means in achieving a purpose.”

It also has a different, well-accepted, and non-archaic legal usage, so you should probably use a different word the next few dozen times you repost this.

[David Nieporent]

Why would you use, in a legal discussion, an archaic meaning of a word that has a modern legal meaning? In law, "ministerial" means that something is a mandatory duty of a particular job that does not allow for the exercise of personal judgment or discretion.

(And it should be obvious that congressional districting cannot be such a power; it requires the exercise of personal judgment by the legislators.)

[Stephen Lathrop]

Nieporent — You choose an archaic meaning to enable usable interpretations of systems of government which are themselves the products of an archaic era. The alternative is to choose a modern interpretation and make a mess.

You want everything to be about law, and nothing but law. And all about today's law, at that. For this topic—which features temporal ambiguity; both present-day and historical interpretations interact—that gives you an ill-sorted tool for interpretation that comes with self-contradictions built in.

In American constitutionalism, everything to do with elections has sovereign power implications. Elections are popular sovereign power in action. Law in isolation cannot address those implications, except by a sloppy and mistaken pretense that the Constitution itself burdens the joint popular sovereign which authored it.

Tacit resort to that pretense explains why comments on this thread struggle to make sense of the spurious independent state legislature doctrine—every analytical path encounters one self-contradiction or another. Every suggestion for remedy looks equivocal.

You can take it for granted that I do not intend to contest your interpretations of modern law. You are welcome to them. Outside the courts of law themselves, legalisms have too many limitations and weaknesses. These discussions touch on law, but also on history and political theory. They require broader context than law alone can supply.

The discussion here has become inchoate. Its narrowly legal focus has been too limited. The need is to interpret a document—the U.S. Constitution, at least, and likely some state constitutions—constructed on the basis of political theory which posits superior extra-legal power (popular sovereignty) as the nation's basis of governance.

Thus, the (archaic) structure of American constitutionalism depends on acceptance of a premise that the law does not typically address. It is the premise that every power of every government is tempered by a duty of obedience to the will of a continuously-active joint popular sovereign. And not only do those governments bear the burden of obedience, but also the burden of loyalty, and a duty to protect jealously the power of the sovereign.

Put that notion back into the discussion, and it affords guidance out of the purely legal briar patch. Entanglements which hamper legal analysis do not similarly ensnare political theory constructed to make the popular will an insuperable final arbiter of how the system ought to work.

[David Nieporent]

You are very good at writing a lot of words that don't actually say anything.

Elections are conducted by law, not by philosophy. They are run by governments, pursuant to laws, not by abstract sovereigns, pursuant to theories.

[Rev. Arthur L. Kirkland]

It is not a doctrine.

It may be called a doctrine by sloppy advocates (Morley) or partisan hacks (I'll be nice and mention no name) but it is not a doctrine.

[ReaderY]

I’ve talked about a standard rhetorical trick unscrupulous hucksters use to bamboozle you into buying their worthless arguments.

You create a bogey, a straw man, on the other side. You present the situation as a dichotomy, with only two positions possible: your position, and the bogus straw man position. You knock down the straw man, deliberately constructed to be easy to do. And ergo! People must accept your position as the only one standing.

Bullshit. I’m not going to be polite anymore. Anyone who graduates from, let alone teaches at, a law school ought to know that this sort of argument is just total baloney.

And here we have that argument. Against the “independent state legislature doctrine,” we have presented the bogus, straw-man “independent state judiciary doctrine.” The straw man is knocked down, and voila! You must accept the “independent state legislature doctrine” as the only doctrine left standing.

Bullshit. Not the least of the reasons why it’s bullshit is that it presumes, exactly as it says, that state judiciaries are independent, i.e. not bound by any law but the Federal Constitution and their own will. Bullshit. State judiciaries are bound by their state constitutions, which are enacted by the people of the states. And constitutions are quintessentially super-legislative acts. Constitutional framers are a kind of super-legislature that creates basic laws that all branches of the government are then bound by. State legislatures arise under, and have only the powers granted by, the state constitution. In exercising their federal constitutional powers, state legislature are bound by the limitations, at least reasonable ones, imposed by the framers, the state super-legislature, in framing the state constitution.

[Rev. Arthur L. Kirkland]

It appears you are just not a fan of South Texas-level legal scholarship or naked political hackery.

[ReaderY]

One might as well have an “Independent Congress” doctrine and say that the federal judiciary has no power to overturn laws passed by the federal constitution. The flaw is the same. The idea that the sole alternative to an unlimited “independent Congress” is an equally unlimited “independent federal judiciary” free to act as it pleases is simply an equally bogus straw-man argument. It’s a classic false dichotomy. The alternative to both arguments, which is the situation we actually have, is a Congress and a federal judiciary both bound by the federal Constitution. Same with the states.

[Dom Ghirl]

The Constitution is alive and well. You might even say it’s “living”
https://i.giphy.com/media/YEL7FJP6ed008/giphy.webp

[Commenter_XY]

legitimacisis....Ok, I actually thought that was pretty funny. 🙂

Personally, I think it needs the full-blown format like you would find in the dictionary, with examples. That would be hilarious. The best part is that you can use this term legitimacisis in a variety of contexts/arguments. I like it.

When I use this term in the future, I promise to give you attribution, Professor Blackman. 🙂

[Sarcastr0]

In reviewing, I just can’t get over how dumb this is.

Blackman discovers the independent and adequate state grounds concept I learned in Federal Courts and is shocked and horrified by the power grab.

What a maroon.

[Hugh]

Surprise, surprise, Professor Blackman comes out in favor of a newly invented reinterpretation of a musty constitutional provision which just happens to comport with his political leanings. And, if validated, will incidentally help his preferred politicians overturn the result of the 2024 presidential election (see the similar constitutional provision regarding the electoral college) of he and they don't like the way the actual vote goes. And I have little doubt that Professor Blackman would come to the opposite legal conclusion on this issue if Democratic party legislators and their assorted legal hacks and toadies were bringing this case forward.