The Independent State Legislature Doctrine, Federal Elections, and State Constitutions

• Publication year: 2020

The Independent State Legislature Doctrine, Federal Elections, and State Constitutions

Michael T. Morley
Florida State University College of Law

THE INDEPENDENT STATE LEGISLATURE DOCTRINE, FEDERAL ELECTIONS, AND STATE CONSTITUTIONS

Michael T. Morley^*

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The U.S. Constitution does not confer authority to regulate federal elections on states as entities. Rather, it grants that authority specifically to the "Legislature" of each state. The "independent state legislature doctrine" teaches that a state constitution is legally incapable of imposing substantive restrictions on the authority over federal elections that the U.S. Constitution confers directly upon a state's legislature. Over the past 130 years, the U.S. Supreme Court has repeatedly adopted conflicting positions on this doctrine without recognizing its deep historical roots or normative justifications.
The independent state legislature doctrine reflects the prevailing understanding of states, Congress, and other actors in the nineteenth century. Throughout that period, the doctrine was consistently applied across a broad range of circumstances. It protects important structural considerations and is consistent with the political theory underlying the U.S. Constitution's election-related provisions. The U.S. Supreme Court could reincorporate the doctrine into modern American law with minimal disruption to either its precedents or state

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election systems. Moreover, the doctrine may present a potentially substantial obstacle to the use of state constitutions to combat partisan gerrymandering in congressional elections.

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Table of Contents

I. Introduction........................................................................5

II. The Independent State Legislature Doctrine...........15

A. THE DOCTRINE AND ITS LIMITS................................... 15
B. THE DOCTRINE'S NUANCES.........................................21
C. DEVELOPMENT OF THE ELECTIONS CLAUSE AND PRESIDENTIAL ELECTORS CLAUSE..............................27

1. The Elections Clause..........................................28
2. The Presidential Electors Clause.......................30

D. NORMATIVE JUSTIFICATIONS...................................... 32

III. State Precedents...........................................................37

A. THE MASSACHUSETTS CONSTITUTIONAL CONVENTION OF 1820 AND CONGRESSIONAL DISTRICTS....................38
B. NEW HAMPSHIRE AND ABSENTEE MILITARY VOTING ... 41
C. RHODE ISLAND AND PLURALITY ELECTIONS................42
D. MISSISSIPPI AND THE TIMING OF CONGRESSIONAL ELECTIONS ................................................................. 44

IV. Congressional Precedents...........................................45

A. THE PLACE AND MANNER OF ELECTIONS..................... 48
B. THE TIMING OF ELECTIONS ......................................... 55

1. West Virginia (1872)...........................................55
2. Iowa (1878).........................................................60

C. SELECTING U.S. SENATORS.........................................61
D. REFORMING THE ELECTORAL COLLEGE ...................... 65
E. LIMITS OF THE DOCTRINE: DISPUTES OVER VOTER QUALIFICATIONS ........................................................ 66

V. The Doctrine in the U.S. Supreme Court.....................69

A. DEVELOPING A PROCEDURE/SUBSTANCE DICHOTOMY: THE EARLY YEARS ...................................................... 70

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B. FROM DISPUTED PRESIDENTIAL ELECTIONS TO CONGRESSIONAL REDISTRICTING: THE MODERN CASES ..................................................................................78
C. IMPLEMENTING THE DOCTRINE IN THE TWENTY-FIRST CENTURY....................................................................90

VI. Conclusion......................................................................93

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I. Introduction

After decades of acknowledging the possibility that the U.S. Constitution may prohibit partisan gerrymandering,¹ the U.S. Supreme Court closed the door on such claims in Rucho v. Common Cause.² The Rucho Court held that partisan gerrymandering claims are nonjusticiable political questions under the U.S. Constitution.³ In the wake of Rucho, many commentators have advocated turning to state constitutions to prevent states from engaging in partisan gerrymandering.⁴

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As Justice Brennan and others have explained, state constitutions often provide greater protection for individual rights than the U.S. Constitution.⁵ Many commentators view state constitutions as fertile sources of new voting-related rights because they typically contain election-related provisions that lack analogues in the U.S. Constitution.⁶ For example, most state constitutions include clauses affirmatively establishing a right to

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vote⁷ or requiring that elections be "free and equal."⁸ Many state constitutions also impose some general restrictions on congressional redistricting by requiring districts to be contiguous and compact, and political subdivisions to each be included within a single district, where possible.⁹

Dicta in Rucho mentions state constitutions as potential tools for combatting partisan gerrymandering,¹⁰ though the opinion does not consider possible objections under the U.S. Constitution. A few state constitutions specifically prohibit partisan gerrymandering in congressional elections.¹¹ The Florida Supreme Court invoked one such provision to conclude that a partisan gerrymander violated the Florida Constitution.¹² Some state constitutions transfer authority over congressional redistricting from the institutional legislature to

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independent redistricting commissions.¹³ In other states, such as Pennsylvania¹⁴ and North Carolina,¹⁵ courts have re-interpreted longstanding provisions of their state constitutions to prohibit partisan gerrymandering.

This Article contends that, although state constitutions may validly restrict states' power to politically gerrymander state and local legislative districts, they cannot limit a legislature's power to regulate most aspects of federal elections—including the legislature's authority to draw congressional district boundaries. The U.S. Constitution confers power to regulate congressional elections and select presidential electors specifically upon the "Legislature" of each state, not the state as an entity. The Elections Clause provides, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," although Congress may "make or alter" such rules "at any time."¹⁶ Similarly, the Presidential Electors Clause states, "Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors" to select the President.¹⁷

States lack inherent power to regulate federal elections, since the U.S. Constitution creates all federal offices.¹⁸ Accordingly, the

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Elections Clause and Presidential Electors Clause are the only sources of states' authority to conduct and regulate nearly all aspects of federal elections.¹⁹ Because these provisions confer power over federal elections specifically upon state legislatures, state constitutions cannot restrict the scope of that authority.

This reading of the Constitution, known as the "Independent State Legislature Doctrine" (the doctrine),²⁰ has a long and largely overlooked history. The U.S. Supreme Court, several state supreme courts, and both chambers of Congress employed this doctrine during the nineteenth century.²¹ The 1890 edition of Thomas Cooley's Constitutional Limitations treatise reflects this understanding, too.²² The treatise explained, "So far as the election of representatives in Congress and electors of president and vice-president is concerned, the State constitutions cannot preclude the legislature from prescribing the 'times, places, and manner of holding' the same, as allowed by the national Constitution."²³

Starting in the early twentieth century, however, state courts largely rejected the doctrine,²⁴ and the U.S. Supreme Court's

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attitude toward it began to vacillate²⁵ —all without recognizing or grappling with the doctrine's history throughout the previous century. Some opinions issued in the course of resolving the dispute over the 2000 presidential election suggested that the Court might have been revitalizing the doctrine.²⁶ And lower federal courts in recent years have interpreted the Elections Clause and the Presidential Electors Clause as prohibiting state executive officials, as a matter of federal constitutional law, from regulating federal elections without authorization from the state legislature.²⁷ But the

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Court's 5-4 opinion in the 2015 case Arizona State Legislature v. Arizona Independent Redistricting Commission brusquely rejected the doctrine.²⁸

The independent state legislature doctrine has likewise received scant academic attention. Attorney Hayward Smith published an article following the 2000 election largely disputing the doctrine's historical underpinnings.²⁹ His analysis led several commentators to reject the doctrine.³⁰ Professor Vikram David Amar, based on his own survey of the relevant history, agreed that federal constitutional provisions conferring power on state legislatures

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were "not designed to interfere with the preexisting control that people enjoyed over their state legislatures" through their state constitutions.³¹ After conducting their own analysis of the doctrine and its history, Professor Nathaniel Persily and his co-authors concluded that the doctrine's "consequences would be both bizarre and disastrous."³² Others have similarly expressed skepticism³³ or outright rejected the doctrine.³⁴

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This Article makes three contributions to the literature. First, it presents a competing, comprehensive historical analysis of the independent state legislature doctrine as applied throughout the nineteenth century, including several...