If the Court Endorses the ISLT in Moore v. Harper, Which Version Will It Choose and Why That Matters

On September 29, SALPAL hosted a conversation on the Independent State Legislature Theory, which will be considered by the US Supreme Court this term, in the case of Moore v. Harper. Oral argument of the case on North Carolina redistricting will be heard December 7. Professor Richard Pildes, Sudler Family of Law at NYU School of Law provides a preview, commenting on the conversation that featured Carolyn Shapiro, author of an upcoming article on the Independent State Legislature Theory in the University of Chicago Law Review and Jason Torchinsky, who represents amicus Republican National Committee in the case. A link to that conversation follows Professor Pildes' blog post.

As we consider the issues raised in the Moore v. Harper case, scheduled for oral argument on December 7, I have emphasized that there is not just one version of a potential “independent state legislature” theory that the Court might adopt, but several different versions. If the Court endorses the doctrine, the practical ramifications will depend on which of these versions it adopts. Moore will not of course address all these versions, only those directly at issue in that case, but it is important to consider the bigger picture.

Before discussing the versions of a potential ISLT most directly involved in Moore, it’s helpful to clarify what the ISLT is not about, because there is a great deal of misinformation about that in wide circulation. Even if the Court endorses the doctrine, I see no prospect that the doctrine would mean governors cannot exercise their ordinary veto powers over state legislation regulating national elections. That issue is a red herring. None of the scholars who endorse the ISLT – there are scholars who do, and of course advocates, as a recent panel hosted by Georgetown Law’s SALPAL shows -- believe it leads to the conclusion that governors lose their veto powers. That is evidence of how even proponents of the theory tend to understand its scope. In addition, the Supreme Court has expressly held that the Elections Clause, under which this issue arises, does not affect the state-law powers of governors to veto legislation, and has similarly held that that when state law permits voters in a referendum process to veto state laws, including those regulating national elections, that veto power in the voters remains intact.

Second, no matter what the Court decides about the ISLT, it would still not mean state legislatures could choose simply to ignore the popular vote in their state and appoint presidential electors themselves after the election. The Constitution in Art. II expressly gives Congress the power to determine the “time” at which electors must be chosen. Since the Presidential Election Day Act of 1845, codified at 3 U.S.C. Sec. 1, Congress has set a nationally uniform day for appointment of the presidential electors. Congress has mandated that electors must be appointed on Election Day: the Tuesday after the first Monday in November. Electors cannot be appointed after that day. Of course, it might take time to determine who the voters have in fact chosen on Election Day, given the need to tabulate the votes, conduct any possible recounts, and resolve any litigation over the outcome that might arise. But from a legal perspective, the electors have been chosen on Election Day. The ISLT, if the Court decides to recognize it, would have no bearing on Congress’ power to lock in the date on which electors must be chosen. Legislatures could not ignore that vote and appoint electors after Election Day – even if they passed a law in advance of the election purporting to give them the power to do that. Federal law remains supreme.

Even with those issues put to the side, the stakes in Moore are extremely high. Moore involves two possible versions of the ISLT. Were the Court to adopt either, it would be extremely destabilizing for federal elections. One version of the argument is that state constitutions or voter-initiated legislation cannot impose substantive constraints on state legislation that regulates federal elections. There is a vast array of provisions regulating federal elections that are found in state constitutions or voter-initiated legislation, all of which would be threatened by this version of the ISLT. As a brief sample, these include provisions banning straight-ticket voting; voter identification requirements; the deadlines for voter registration; provisions establishing all-mail voting systems; provisions regulating the absentee-ballot process; provisions banning voters who failed to vote in the general election from voting in run-off elections; how to fill vacant Senate seats (by special election rather than gubernatorial appointment); provisions on the thresholds required to be elected to office (plurality-vote or majority-vote provisions); provisions for challenging the validity of votes; the criteria to be used in redistricting, such as whether districts must be compact, whether partisan considerations are banned or constrained, what weight to be given to competitiveness; whether districting is to be done by independent commissions. A number of these provisions date to early state constitutions.

The regulation of primaries for federal elections is an area particularly worth singling out. As voters have become dissatisfied with the nature of politics in recent years, they have sought to reform the structure of primaries in several states. In Washington, voters adopted the Top-2 structure for primaries, in which all candidates run in a single primary and the top two then go on to compete in the general election. In Maine, voters adopted ranked-choice voting (RCV) for federal and state primaries and the general election. Most recently, in 2020 voters in Alaska adopted the Top-4 primary structure, with RCV to be used in the general election. Whether or not these reforms turn out to have the beneficial effects their proponents believe they will have, they are examples of the ways in which voters over the years have sought to reform the democratic process to make it more responsive to their concerns. If the Court adopts the position that state constitutions or voter-initiated legislation cannot impose substantive constraints on state laws regulating federal elections, these provisions would fall by the wayside. If state legislatures then failed to enact these provisions into state law, the state would then have different rules regulating state and federal elections. That would cause its own set of problems, for election administrators and for voters.

A second version of the doctrine at issue in Moore would adopt a clear-statement type of rule regarding the ability of state constitutions to impose these substantive constraints. This position would distinguish state constitutional provisions that are clear or “specific” and those that are more “general.” In this version of the ISLT, the former could be judicially enforced in the context of federal elections but the latter could not. Thus, a provision requiring that the state use a Top-2 or Top-4 primary structure for federal election primaries, or a provision banning taking partisan considerations into account in drawing districts would provide a clear statement that would permit state judicial enforcement. But more “general” state constitutional provisions, such as provisions common to many state constitutions that guarantee the right to “free and equal” elections, could not be judicially enforced. On this view, if a state court applies these type of “general” provisions to hold unconstitutional state election laws regulating federal elections, the state court has violated the federal Constitution.

There are passages in the judicial statements of Justices Alito and Thomas in the 2020 election cases that suggest such a “clear-statement” rule. But this position would require federal courts to determine just how clear and specific state constitutional provisions must be to “specific enough” rather than “too general” to constrain state election rules permissibly without violating the federal Constitution. It is not at all clear this distinction can be given principled, consistent content. Absent such ability, a troubling risk exists that federal judicial judgments about this line would rest on highly subjective judgments.

Most state constitutions contain provisions guaranteeing the right to vote, or requiring equal protection of the laws, or securing the right to free and fair elections. Are these provisions unenforceable in federal elections because they are “too general”? Another issue this view would have to confront is how to address “general” constitutional provisions that state courts have given more specific content to over time, through the development of precedent. After all, many constitutional provisions are stated in highly general terms – consider all the Supreme Court precedents determining the meaning of the First Amendment or the federal Equal Protection Clause – but take on much more determinate meaning over time through judicial decisions. If a “general” state constitutional provision has been given “specific enough” content through precedent over time, can state courts now enforce that provision against state election laws regulating federal elections? Will federal courts review that series of state decisions to determine if the decision before them fairly follows from that earlier line of precedent or strays “too far” from it? If the same provision exists in two state constitutions – such as a provision guaranteeing the right to vote – would state enforcement of that provision not violate the federal Constitution in a state that has given the provision much more specific content over time but would violate the federal Constitution in a state with more sparse precedent on the provision?

An ISLT that would distinguish between “specific” and “general” state constitutional provisions would be less extreme than one which precluded application of all state constitutional constraints. But even leaving aside the intrusion on state court development of state constitutional law such a view would entail, any effort to apply that distinction would be fraught with uncertainty, difficult if not impossible to apply in a consistent, principled way, and would pose a serious risk of highly subjective federal court judgment about which constitutional provisions, in which states, could be applied to state laws regulating federal elections. State legislatures have always been understood to be created by their state constitutions, and to be required to act within the limits those constitutions, as construed by the state courts, impose. Hopefully Moore will not disrupt that understanding.

To view the panel on the Independent State Legislature Theory at Georgetown Law with Professor Carolyn Shapiro of Chicago-Kent College of Law and Counsel to Amicus RNC, Jason Torchinsky on Sep 29, 2022, click here.