LIQUIDATING THE INDEPENDENT STATE LEGISLATURE THEORY.

• Author: Weingartner, Michael

INTRODUCTION

Following the 2020 presidential election, an obscure and potentially revolutionary constitutional theory reemerged. According to the so-called "independent state legislature" (ISL) theory, the Constitution, through Article I, Section 4 (the Elections Clause) and Article II, Section 2 (the Electors Clause), vests state legislatures with plenary power to craft rules for Congressional and Presidential elections unbound by state constitutions and free from review by state courts. (1) This theory, repeatedly rejected by the Supreme Court, (2) was roused from its slumber by a wave of litigation that pitted state legislatures against their constitutions. In the months before the election, the COVID-19 pandemic and concerns over in-person voting prompted numerous challenges to state election laws that limited absentee and early voting or imposed onerous signature match or witness requirements. (3) Roughly half of these challenges were brought in state courts under state constitutions, (4) many of which include election and voting rights provisions that go far beyond those found in the U.S. Constitution. (5) The Pennsylvania Supreme Court, for example, extended the absentee ballot deadline based on the state constitution's guarantee that elections shall be free and equal. (6) Meanwhile, changes to election rules made by governors, secretaries of state, and elections boards were challenged as usurping the exclusive power of state legislatures. (7) After election day, the theory took on a troubling new dimension as supporters of former President Trump called for Republican-controlled legislatures in states won by Joe Biden to reject the electors chosen by voters and instead appoint their own slates of pro-Trump electors. (8) While no alternate electors were appointed and efforts to invoke the ISL theory in court were unsuccessful, four Justices signaled their willingness to consider at least some version of the theory, (9) including Justice Alito, who suggested the Pennsylvania Supreme Court's extended absentee ballot deadline may have violated the Elections Clause. (10) The Court will address the ISL theory directly during October Term 2022 in Moore v. Harper, a case in which the North Carolina Supreme Court struck down the congressional district map passed by the state legislature based on a number of state constitutional provisions. (11)

Proponents of the ISL theory rely primarily on the textual argument that when the Elections and Electors Clauses grant authority to "the Legislature" of each state, they refer solely and exclusively to institutional representative legislative bodies. (12) This novel reading, however, conflicts with over two hundred years of historical practice. Since the Founding, state constitutions have regulated nearly every aspect of federal elections, from voter registration and balloting to congressional redistricting and election administration. (13) Most of these election-related provisions were presented by state legislatures and approved by voters. For centuries, these provisions have constrained both the process and the substance of state election laws.

This Article contends that this longstanding practice, spanning all fifty states and with only scattered exceptions throughout history, has settled the meaning of the Elections and Electors Clauses and foreclosed the ISL theory. It draws on James Madison's analytical framework of "constitutional liquidation," under which the meaning of unclear or ambiguous constitutional text may be liquidated--i.e., settled--by a "regular course of practice." (14) The Supreme Court has increasingly looked to historical practice to resolve constitutional ambiguities, (15) including in election law. (16) Most recently, the Court explicitly adopted a liquidation framework in Chiafalo v. Washington to settle whether states may control the votes of members of the Electoral College. (17)

Following the Court's lead, this Article examines the debate over the ISL theory through the liquidation framework. Part I provides background on the Clauses, the Supreme Court's doctrine, and the theory's 2020 reemergence. Part II explores how settled historical practice informs the Court's interpretation of the Constitution and how the Court has applied liquidation in election cases, including Chiafalo. Part III then applies the liquidation framework to the ISL theory and concludes that, while the Constitution's text is not dispositive, the subsequent history is. Since the Founding, there has been a consistent, deliberate practice of state constitutions regulating federal elections and constraining state legislatures. This longstanding practice enjoys the acceptance of courts, Congress, the public, and even state legislatures themselves. This strongly suggests the meaning of the Elections and Electors Clauses has been settled in favor of state constitutional constraints and that the ISL theory should, once again, be rejected.

1. BACKGROUND

   1. The Clauses

      The Constitution empowers states to regulate federal elections in two places. First, the Elections Clause of Article I provides that "[t]he Times, Places and Manner" for congressional elections "shall be prescribed in each State by the Legislature thereof...." (18) Second, the Electors Clause of Article II empowers states to "appoint, in such Manner as the Legislature thereof may direct, a Number of Electors" (19) to cast votes for president and vice president. (20) Both Clauses refer to state legislatures using identical language, suggesting each confers authority in the same manner and with the same effect--if any--on the power of state constitutions to constrain state legislatures.21

      1. The Elections Clause

         The Elections Clause empowers states to regulate the "Times, Places and Manner" of congressional elections, with the caveat that "Congress may at any time by Law make or alter such Regulations ...." (22) Congress's power under the Elections Clause is thus coextensive with that of the states. The Constitution does not define the terms "Times," "Places," or "Manner," but the Supreme Court has held that their "substantive scope is broad" (23) and that they "embrace authority to provide a complete code for congressional elections," including "notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns...." (24) This authority overlaps with several state constitutional provisions. (25)

         A thornier question is whether the Elections Clause confers the power to regulate voter qualifications, which nearly all state constitutions do. (26) On the one hand, Article I's Qualifications Clause states that voters in House elections "shall have the Qualifications requisite" for state legislative elections. (27) In light of this specific language, the Supreme Court has stated in dicta that the more general Elections Clause does not extend to voter qualifications. (28) On the other hand, in Oregon v. Mitchell, the Court upheld amendments to the Voting Rights Act that lowered the minimum voting age from twenty-one to eighteen for congressional elections. (29) Four Justices would have upheld the amendments under the Fourteenth Amendment, (30) but Justice Black's controlling opinion upheld it under the Elections Clause, writing that "the powers of Congress to regulate congressional elections[] includ[e] the age and other qualifications of the voters...." (31) Despite the Court's more recent statements, (32) Mitchell has not been overturned and remains good law. (33) Congress has also imposed a citizenship requirement for presidential and congressional elections and required states to allow military and overseas citizens to vote for Congress. (34) The line between a voter qualification and a "Manner" regulation may also be blurry. (35) Requiring voters to register or pay a poll tax may be a qualification, but laws laying out specific payment or registration procedures go further and regulate the "Manner" of elections. (36) Given that the Elections Clause confers the same substantive power on states and Congress, these same considerations arguably govern a state's power to regulate voter qualifications for federal elections.

      2. The Electors Clause

         While the Elections Clause empowers states and Congress to regulate the time, place, and manner of congressional elections, (37) the Electors Clause addresses only the "Manner" of appointing presidential electors. (38) Though this text may appear to confer a narrower authority, (39) the Supreme Court has construed the power conferred by the Electors Clause as coextensive with that granted by the Elections Clause, (40) holding that the Clause grants states "plenary authority to direct the manner of appointment." (41) The use of the word "Manner" in both clauses suggests as much with respect to manner regulations. (42) The fact that the Electors Clause does not refer to regulations of the "Times" and "Places" of appointment has never been understood to limit a state's ability to regulate these aspects of presidential elections; rather, the omission of "Times" and "Places" is likely just a reflection of the fact that a state may choose to appoint electors through a manner other than an election. (43)

         Likewise, while Article II's text only allows Congress to set the time for choosing electors, (44) the Supreme Court has interpreted Congress's power as coextensive with states. (45) In Ex parte Yarbrough, the Court upheld a portion of the Ku Klux Klan Act criminalizing conspiracies to intimidate voters from supporting congressional candidates or presidential electors. (46) In Burroughs v. United States, the Court upheld the financial disclosure and reporting requirements of the Federal Corrupt Practices Act, holding that Congress "undoubtedly" possesses the power "to safeguard [a presidential] election from the improper use of money...