The Amars show why the NC election map challenge must fail

Jason Mazzone

Yesterday, Republicans in North Carolina filed an emergency application with the U.S. Supreme Court asserting that a state congressional map drawn by a panel of state-court-appointed experts following the North Carolina Supreme Court's invalidation of an earlier map, violates the Elections Clause of Article I of the federal Constitution. The emergency application is based on what is known as the “independent state legislature” theory, which asserts that the federal Constitution bars state courts from playing any role--even when provided for in the state's constitution--in congressional redistricting or in any other state-regulated aspects of federal elections. Vik and Akhil Amar have a forthcoming article in the Supreme Court Review on why the independent state legislature theory is baloney. Their analysis shows why the Supreme Court should reject the emergency application out of North Carolina--and reject any future claims based on the independent state legislature theory. A draft of the Amars' article is here and below (with the Amars' permission) is a taste of their powerful analysis.

The Court’s rulings in Bush v. Gore were disgraceful, and efforts two decades later to rehabilitate and recycle some of the worst aspects of the Court’s opinions in that litigation deserve loud condemnation by intellectually honest judges and scholars across the ideological and methodological spectra.  In particular, the notion – advanced in recent years by litigants, several Justices and a few law professors  – that Article II of the Constitution confers power on elected state legislatures, in regulating the selection of presidential electors, to disregard the very state constitutions that created and confine those legislatures, and the related notion that federal (rather than state) courts are in this setting the appropriate judicial interpreters of state election laws and state constitutional provisions, are utterly indefensible.  The “Independent-State-Legislature” (ISL) theory, as it is called by some of its proponents, runs completely counter to originalist and structural understandings of the Constitution in 1787, to actual state legislative practice and intentions, and to settled judicial precedent from the Court itself over the past century.

In particular, as a matter of founding history and ideology, state legislatures were agents, not principals, and sovereignty did not reside in them but was conferred upon them by the people of the states (who also make state constitutions).  Indeed, these state elected bodies were explicitly subject to legally binding “instruction” in many of the state constitutions that preceded the federal Constitution. So if we are asking what the framers had in mind when they used the word “legislature” in 1787, there was (at least as to all matters state, including state elections) nothing “independent” about these legislatures.  Accordingly, the notion that they should be independent in federal elections cannot come from the inherent meaning of “legislature” And the ISL folks don’t provide any meaningful historical evidence suggesting “legislature” should bear such a different meaning when it comes to Articles I and II than it does with regard to these legislative bodies as they pre-dated the federal Constitution.

Early practice under the new federal Constitution provides additional, and compelling reasons to reject ISL ideas. Four of the six state constitutions that were adopted or revised in the Constitution’s earliest years of operation—George Washington’s first term—regulated the manner of federal elections, and in so doing cabined the power of the state legislature. In addition, at least two early states that provided for vetoes for general legislative action employed such vetoes in the process by which federal election rules were made. Thus, as a matter or original understandings and expectations, the Constitution in both Articles I and II takes state legislative bodies as it finds them, subject to pre-existing control by the people of each state—the ultimate masters of state legislatures—and the state constitutional limits that those people create and that are entitled by the federal Supremacy Clause to preference over state statutes. And of course the Constitution also plainly recognizes the general role of state courts as the last word on the meaning of state law, including state constitutions, even when those constitutions constrain state legislatures.

If not to confer institutional independence, why does Article II use the term “legislature?” The most obvious explanation relates to efficiency and expense. The Framers knew that each of the thirteen then-existing states had an ordinary standing legislature, and Article II created a simple, inexpensive, and self-executing default that, unless a future state constitution specified otherwise by creating a special ad hoc legislative body or process, the state’s ordinary pre-existing state legislature would be the body to adopt federal election regulations. And, to repeat, nothing in the Federal Constitution suggests that the ordinary state legislature would have federal carte blanche to act in extraordinary ways contrary to the general rules limiting the legislature in the very state constitution that created and bounded that legislature. In 1787, state appointment practice varied widely under then-existing state constitutions.  Absent Article II’s mention of “legislature,” it thus might have been unclear in some states who was to play the default role in directing the manner of appointment of the federal Constitution’s newly created presidential electors. Going forward, however, Article II’s text rather plainly gives each state, via any future state constitution or state constitutional amendment it might adopt, broad authority. A future state constitution could thus directly regulate the elector-appointment process itself in whole or in part; create a special legislative body or legislative process to do the regulation; and/or continue to allow the ordinary legislature to direct electoral appointment, even allowing the legislature to make appointments itself—all subject to whatever general rules that future state constitution might provide. That is why, textually, Article II empowers “Each State” as such to “appoint” electors, and says merely that the state legislature “may”—not “shall” or “must”—“direct” the “Manner” of appointment. With all this in mind, the reader should now re-read the words of Article II, with our emphasis added: “Each State shall appoint, in such a Manner as the Legislature thereof may direct . . . .” In addition to all this, state legislatures have consistently enlisted state judiciaries as partners to implement state constitutional limits and ensure fair elections.  ISL theory ignores this separate, independent basis for permitting state court interpretation and implementation of state election statutes and related state-constitutional provisions. Finally, precedent, spanning over 100 years and embraced or accepted by virtually all members of the current Court, most importantly the landmark Arizona Independent Redistricting Commission case and Rucho v. Common Cause, put the lie to ISL in 2022. 

For all these reasons (and more), every sensible constitutionalist—whether on the Court or off it, whether originalist or precedentalist, whether left or right of center—should deposit the Article II ISL theory in the trash heap where it belongs.