Constitutional Text, Founding Era History, and the Independent-state-legislature Theory

• Publication year: 2023

Constitutional Text, Founding Era History, and the Independent-State-Legislature Theory

Dan T. Coenen
University of Georgia School of Law, coenen@uga.edu

Constitutional Text, Founding Era History, and the Independent-State-Legislature Theory

Cover Page Footnote

University Professor, Josiah Meigs Distinguished Teaching Professor, and Harmon W. Caldwell Chair in Constitutional Law, University of Georgia. The author thanks Randy Beck, Lori Ringhand, Paul Kurtz, Michael Coenen, and Nathan Chapman for helpful comments on earlier drafts.

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CONSTITUTIONAL TEXT, FOUNDING-ERA HISTORY, AND THE INDEPENDENT-STATE-LEGISLATURE THEORY

Dan T. Coenen^*

One question raised by proponents of the so-called independent-state-legislature theory concerns the extent to which state courts can apply state constitutional requirements to invalidate state laws that regulate federal elections. According to one proposed application of the theory, state courts can never subject such laws to state-constitution-based judicial review. According to another application, federal courts can broadly, though not invariably, foreclose state courts from drawing on state constitutions to invalidate federal-election-related state legislation. This Article evaluates whether either position comports with the original meaning of the Constitution. Given the Article's focus on the originalist methodology, it directs attention only to the text of the Constitution and the context in which that text was drafted and evaluated in 1787 and 1788. This study of the relevant text and framing-era history—particularly as that history is disclosed by the Federalist Papers—casts a long shadow over the independent-state-legislature theory. At the least, it indicates that, as an originalist matter, there is no sound basis for broadly empowering federal courts to constrict state-court judicial review of federal-election-related laws under state constitutions, far less for precluding such judicial review altogether.

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Table of Contents

I. Introduction...................................................................541

II. Understanding the Independent-State-Legislature Theory.................................................................................544

III. The Propriety of State-Court Judicial Review of State Legislation Regarding Federal Elections Under State Constitutions..........................................................547

A. THE CONSTITUTIONAL TEXT AND BACKGROUND UNDERSTANDINGS...........................................................547
B. PRE-RATIFICATION HISTORY AND UNDERLYING CONSTITUTIONAL THEORY...............................................562

1. Basic Constitutional Theory and the Independent-State-Legislature Doctrine........................................564
2. The Independent-State-Legislature Theory and the Purposes of Section Four .......................................... 571
3. State Courts, State Legislatures, and the Independent-State-Legislature Theory..........................................580

IV. The Distinctly Limited Scope of Any Possible Independent-State-Legislature Doctrine....................584

V. Conclusion.....................................................................597

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I. Introduction

The Supreme Court recently has signaled its intention to examine the doctrinal implications of the so-called independent-state-legislature theory.¹ In a spate of recent writings, legal scholars have grappled with this theory, with most of them casting it in a negative light.² This literature covers many points, but much of it

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concerns the implications of post-ratification legislative and judicial actions, including Supreme Court decisions issued during the past century-and-a-half.³ This Article takes a different tack. It focuses

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squarely on the constitutional text and on ratification-era writings, with a particular emphasis on the Federalist Papers. In other words, the treatment offered here examines the independent-state-legislature theory from, and only from, an originalist perspective.⁴ And the conclusion that emerges from this analysis is that this theory, at least in any highly federal-court-empowering form, does not comport with a proper reading of the Constitution.⁵

More specifically, the analysis offered here challenges a key argument made by the leading academic defender of the independent-state-legislature theory—namely, that it "is consistent . . . with . . . the structure and political theory underlying the Constitution."⁶ Indeed, the ensuing discussion undertakes to show not only that this line of argument is in error, but also that it has things exactly backwards. In sum, this Article makes the case that both "the structure" of the Constitution and the "political theory" underlying it cut sharply against the idea that state legislatures are somehow exempt, when they enact laws regarding federal elections, from the generally applicable and deep-rooted principle that those

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legislatures must comply with their own state's constitution as interpreted by their own state's courts.

II. Understanding the Independent-State-Legislature Theory

The independent-state-legislature theory has given rise to much confusion, in part because different analysts have invoked the theory in defending a variety of different doctrinal positions.⁷ Particularly prominent accounts of the theory, however, focus on a core idea—namely, that ordinary governing principles, under which state courts can and do review the legality of state laws under state constitutions, do not apply to state legislation concerning federal elections.⁸ It is this aspect of the theory that is at issue in Moore v. Harper, which is pending before the Supreme Court as this Article goes to press.⁹ In that case, the North Carolina Supreme Court held that the North Carolina constitution prohibited the state legislature from putting in place a congressional-voting-district map drawn to carry out a highly aggressive form of partisan gerrymandering.¹⁰

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Following the issuance of that decision, the U.S. Supreme Court declined to stay the state court's judgment pending full briefing and argument in the case.¹¹ Three Justices, however, voted to grant the requested stay because they thought it likely that this application of the North Carolina constitution by the North Carolina Supreme Court ran afoul of the independent-state-legislature theory as enshrined in the U.S. Constitution.¹²

The Moore case raises two main questions. The first concerns whether state courts, when dealing with state laws insofar as they apply to federal elections, are wholly foreclosed from exercising a key component of their long-accepted judicial-review power—that is, the power to assess whether a challenged state law exceeds the limits imposed by the state constitution.¹³ The second question is closely related to the first. It concerns whether, even if some measure of state-court judicial-review authority with respect to

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these laws remains in place, federal courts nonetheless possess a broad power to overturn some, though not all, otherwise-authoritative state-court pronouncements that such laws do not comport with state constitutional directives. The ensuing discussion makes the case that the answer to both questions should be "no." The first proposed build-out of the independent-state-legislature theory, which would strip state courts of any power of state-constitution-based judicial review in cases involving federal elections, is the focal point of Part III. The second proposed build-out, which would broadly empower federal courts to overturn otherwise-binding state-court interpretations of state law in many (though not all) federal-election-related cases, is the subject of Part IV.

Another foundational point about the independent-state-legislature theory concerns the sorts of laws to which it applies. In particular, the theory has potential application to two different types of state laws concerning federal elections: (1) laws that deal with federal-legislator elections, a subject dealt with in the Elections Clause of Article I, Section Four; and (2) laws that deal with presidential elections, a subject dealt with in the Electors Clause of Article II, Section One.¹⁴ Academic commentators tend to agree that the same federal constitutional rules regarding the operation, or non-operation, of the independent-state-legislature theory should apply to both types of state legislation.¹⁵ In particular, critics of the theory have suggested that it is marked by flaws that apply in equal measure in both settings.¹⁶ Even so, much of the existing commentary focuses on the Electors Clause, in part because three Justices relied on the independent-state-legislature theory in

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voting to overturn the state-law-based action of the Florida Supreme Court in the presidential-election case of Bush v. Gore.¹⁷ Again, however, this essay moves in another direction. Here, the focus is on House and Senate elections and the treatment of those elections in Article I, Section Four.

III. The Propriety of State-Court Judicial Review of State Legislation Regarding Federal Elections Under State Constitutions

A. THE CONSTITUTIONAL TEXT AND BACKGROUND UNDERSTANDINGS

The text of the Constitution provides the proper place to begin in identifying the rules it establishes—a point that lies at the heart of the originalist interpretive methodology.¹⁸ In pertinent part, Article I, Section Four states: "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."¹⁹ The independent-state-legislature theory, insofar as it applies to the elections of federal legislators, is founded on the Framers' use of the term "the Legislature thereof"—that is, the legislature...