Retraction as to Steve Calabresi and Ed Whelan on the Independent State Legislature Theory

Steve Calabresi writes:

In my post yesterday, I was under the mistaken impression that Ed Whalen had bought into the radical "Independent State Legislature Theory" that the North Carolina State Legislature was arguing for yesterday in the U.S. Supreme Court. This is also a theory that former President Donald Trump falsely claimed meant that the Republican State Legislatures of Pennsylvania, Wisconsin, Georgia, and Arizona could have used to nullify the popular vote in those States in 2020 and award their electoral votes to him.

For Ed Whelan's response to the (pre-retraction) Calabresi post, see here.

Comments

[Kazinski]

"Nevermind."

[mulched]

Damn. Whelan just sliced him open and left him for dread.

[Brett Bellmore]

Pretty much. There are times when you really want a time machine, you've screwed up so badly, I expect this is one for Eugene.

[F.D. Wolf]

"I'm sorry. Your argument vaguely reminded me of an argument Donald Trump had made on a tangential topic, so, naturally, I flew into a blind rage and can hardly be blamed for temporarily losing my cognitive faculties."

[Intelligent Mr Toad]

In my EIGHTH GRADE civics/history class, we read the Constitution, and someone pointed out that since it specified that the state legislatures could decide which electors to appoint however they wanted, without regard to the voters, they could engineer an election sharply opposite to the popular vote. The teacher, a very disciplined woman, thought it over and said "yes, that's true." Then she giggled and added "But there would probably be a revolution!"

[Dr. Ed 2]

No, it would be a purging of the state legislature, which would not be a bad thing.

[Brett Bellmore]

Eh, you might get the revolution depending on what they subsequently did prior to the next election. If they got bad enough, the citizenry might not be willing to wait until the next election to get rid of them.

But politicians are typically pretty good about calibrating how much and when they piss off potential voters, so the likelihood of that is pretty low.

[Dr. Ed 2]

Did you see the county map on the Georgia Senate election?
A solidly red state with a few urban spots of blue...

I'm not so sure that upset Democrats would get so far...

[Rev. Arthur L. Kirkland]

The blue sections represent population, education, modernity (reason, inclusiveness), culture, marketable skills, amenities (medical, for example), and economic contribution.

[BravoCharlieDelta]

I take it you've never been to downtown Atlanta or Decatur.

[Dr. Ed 2]

The interesting thing is that up to about 1960, our cities actually were hubs of enlightenment and civilization.

[Brett Bellmore]

That's because they were hubs of our civilization, which was still largely enlightened. They were also hubs of everything bad in our civilization, too. The cities were still representative of the larger society back then.

It's interesting to speculate what went wrong. Maybe suburbs came along? The productive middle class were always the glue, keeping the wealthy grounded, and giving the poor attainable positive role models.

In the 60's, people got wealthy enough to move out of the cities, to a more pleasant lifestyle. The wealthy stayed behind because they had it good, their wealth insulated them from the downsides of cities. The poor stayed behind because they couldn't afford to leave.

And the cities' glue was gone.

[David Nieporent]

Did you see the vote tallies for the Georgia Senate election? A majority blue.

What is it with you people's inability to understand that acres don't vote?

[ReaderY]

Would point out that state legislatures absolutely can appoint the electors themselves, and can have a purely advisory public vote beforehand if they want, whose results don’t bind them. While they have to spell out what they are doing beforehand, the reasons why are statutory, not constitutional. Congress sets the day the electors are appointed and requires the procedure to be specified in advance. But Congress could potentially provide otherwise.

So far as the Constitution is concerned, only the state’s Electors are involved in any election. There is no constitutional right for the public to have any involvement at all in the Electors’ appointment, or in the selection of presidents.

[Mr. Bumble]

So, was Calabresi willfully ignorant of Whelan's position? Seems as if he got everything wrong.

[Ridgeway]

That earlier comment thread made me embarrassed to be an originalist.

Just looking at history, it is gobsmackingly obvious that "prescribed ... by the legislature thereof" and "in such manner as the Legislature thereof may direct" are synonymous with "in accordance with State law."

Every Federal election ever has been conducted under that understanding.

The only argument I can kinda sorta get behind is where a State supreme court so obviously defies state law, that it rises to a violation of the US Constitution. Even that tends to violate my federalist inclinations, but it emphatically has nothing to do with minute textual parsings.

[questioner7]

"a State supreme court so obviously defies state law, that it rises to a violation of the US Constitution" -- which part of the U.S. Constitution could be violated by that -- due process?

[Brett Bellmore]

Well, in 2000, it was the equal protection clause, because the Florida supreme court was forcing a recount where different voters would be treated differently.

[questioner7]

For non-lawyers like me, explain something basic. "[election rules] shall be prescribed in each State by the Legislature thereof" -- prescribed, i.e. legislated. But all laws, after being legislated, must be interpreted, and then interpretations executed. The Constitution says nothing on who should interpret or execute. It says state lawmakers should legislate, which no one disputes. So why is there a controversy?

[Ridgeway]

People are conflating two separate "controversies."

The first is the nutso notion that the references in I.4 and II.1 to state legislatures were intended to create an entirely different scheme from normal lawmaking, in which the legislatures had sole authority, unconstrained by any other branch of government. 30 seconds of thought shows why that is nutso.

The second is a harder question, and is the one currently before the SCT. At what point (if any) has a state court arrogated to itself so much of the legislative function that it has deprived the legislature of its authority under I.4 of the US constitution.

[David Nieporent]

Right; I've been thinking for months that we could see some sort of squishy compromise ruling rejecting the ISL theory but saying that at some point a state court has gone so far off the rails that it can be reined in by the federal courts. The problem with that (setting aside whether it's legally correct) is there's really no justiciable way to write such a ruling. What the hell does "gone too far" mean? It's a Kennedyesqe compromise, kind of like his political gerrymandering rulings: "No, this gerrymander doesn't violate the constitution, but maybe hypothetically there's a political gerrymander that goes too far." And without Kennedy on the court anymore, SCOTUS pretty much squashed that hypothetical, on the grounds that there's no manageable standard for "too far."

[Brett Bellmore]

I kind of think the Court might have been able to come up with a manageable standard, if the Democrats had been a bit more reasonable. They insisted on going for a standard that was pretty obviously biased, and really had nothing to do with “gerrymandering” as it is normally understood.

I think they screwed themselves by doing that, where if they’d proposed a standard Republicans might have agreed with, the Court would have faced a bipartisan front in favor of it.

[Brett Bellmore]

Well, if you want a judiciable compromise, how about, it gets reviewed in the federal courts if the legislature appeals to them. Then the federal courts treat it as they would have if they'd had normal jurisdiction.

[NOVA Lawyer]

Reviewed in the federal courts for what? State courts interpret state constitutions. So I am not seeing how this changes anything. The state legislature can always sue if there is a violation of the federal constitution and the federal courts always have jurisdiction of those claims, as they do in Harper v. Moore.

And in Harper v. Moore, they will lose on the ISL theory advocated by so many in these comment threads. The substantive/procedural distinction (of the watered down ISL theory) won't win for them either, though that will garner a vote or two more. A state could provide in its constitution that maps cannot be drawn on a partisan basis and I don't see any practical or constitutional basis to deprive the people of a state the substantive limit they set on their legislature which, of course, exists by virtue of and subject to the state constitution. Whether the NC constitution actually did that will likely be relitigated, but that's a matter for NC state courts.

[Brett Bellmore]

No, not really. It would still apply to Congressional races, and state offices.

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation"

Note that neither proscribes denying the right to vote for an office on the basis that it isn't selected by a popular vote.

[Mr. Bumble]

The US Constitution only provides for a Supreme Court and generally spells out its jurisdiction. All inferior courts are created by Congress and prescribes their jurisdiction.
I'm wondering how most state constitutions treat their courts?

[MatthewSlyfield]

Right, but judicial review of either election rules or districting plans does not inherently give the court the authority to substitute rules/districting plans of it's own choosing.

My stance would be they can overturn legislative enactments in this area, but that the courts only choice after doing so is to remand back to the legislature.

[MatthewSlyfield]

A state legislature could decide to directly select Senators and Electors, but election of Representatives is mandated by the US Constitution.

Article 1 Section 2:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States

[bernard11]

But what if the legislature continues to produce unacceptable maps?

There has to be a point at which the court can step in. Otherwise they really have no power at all in the matter.

[David Nieporent]

Right, but judicial review of either election rules or districting plans does not inherently give the court the authority to substitute rules/districting plans of it’s own choosing.

But what judicial review gives a court the authority to do is a question of state law.

[Mr. Bumble]

unacceptable to whom?

[Dr. Ed 2]

Remember too that -- in 1789 -- the states were considered to be sovereign, and as such, they were ceding limited authority to the Federal government. They still remained sovereign.

[David Nieporent]

A state legislature could decide to directly select Senators

Um, did you miss the 17th amendment? It's only a century old.

[David Nieporent]

No, they didn't.

[MatthewSlyfield]

Yes, I forgot about that. So nix Senators from the list too.

[NOVA Lawyer]

Matthew:

The General Assembly has enacted a statutory scheme that governs legal challenges of this kind. Specifically, actions “challenging the validity” of redistricting maps are heard by special three-judge panels. N.C. Gen. Stat. §267.1(a). If a court concludes that a map is “unconstitutional,” it must issue an order describing “every defect found” and give the legislature at least two weeks to “remedy [those] defects.” Id. §120-2.3,-2.4(a). If the legislature fails to do so, “the court may impose an interim districting plan for use in the next general election only.” Id. §120-2.4(a1). Consistent with these statutes, the Chief Justice of the North Carolina Supreme Court appointed a three-judge panel to preside over the case. Id. §1-267.1(a),(b).

The North Carolina legislature specifically anticipated state court involvement (undercutting that they ever thought their maps weren't subject to state court judicial review) and provided that the courts could redraw the maps. So, no, remand is not the only alternative.

You not only have to prove the spurious Independent State Legislature theory, but also show that theory precludes the legislature from delegating its map drawing to independent bodies (whether an independent commission in Arizona or, as in NC, a three-judge panel if the legislature draws an unconstitutional map and fails to fix it).

The facts of the case are important and this one is a loser for ISL and for the specific circumstances of this case, in which the court was doing what the legislature itself had directed the courts to do.

ISL, as advocated by commenters on this blog especially, is a stupid theory that makes the state legislature unaccountable to anyone (executive branch, judicial branch, state constitution, and the voters themselves) other than federal authorities. That is speciously unoriginalist as well as a daft policy/governance choice.

People signing onto this theory are revealing themselves for the power hungry opportunists they are.

[Sarcastr0]

Whatever, dude.