For 20 years, the doctrine lay dormant. It was resurrected, in 2020, by allies of Donald Trump, who wanted some constitutional pretense for his or her try to overturn his defeat. Before the election, numerous state courts had ordered state governments to make lodging for the pandemic, citing state constitutions. Elsewhere, governors, secretaries of state and state boards of election took issues into their very own arms, bypassing the legislature (and utilizing their very own authority below the legislation) to accommodate voters. When, after the election, the Trump marketing campaign sued both to throw out ballots or to invalidate outcomes, its attorneys provided the “independent state legislature” doctrine as justification. So too did supporters of Trump who needed Republican legislatures to void election outcomes and select electors who would give the president a second time period.
The fundamental drawback with this doctrine is that it’s bunk. “The text of the Elections and Electors clauses is silent as to the role of state constitutions, but the subsequent history is anything but,” the authorized scholar Michael Weingartner writes in a draft article on the speculation of impartial state legislatures. “Since the Founding, state constitutions have both directly regulated federal elections and constrained state legislatures’ exercise of their authority under the Clauses.” What’s extra, over the previous century, “nearly every election-related state constitutional provision was either approved and presented to voters by state legislatures or placed on the ballot and enacted by voters directly.” Even if the federal Constitution is obscure on the complete scope of state legislative energy to control elections, each historical past and follow have fastened the that means of the related clauses in favor of constraint. State constitutions (and state courts) do the truth is regulate state legislatures because it pertains to election legislation.
Some proponents of the “independent state legislature” doctrine argue that theirs represents the unique understanding of the Elections and Electors clauses within the Constitution. Another researcher, Hayward H. Smith, says in any other case. “The history demonstrates beyond cavil that the founding generation understood that ‘legislatures’ would operate as normal legislatures, not independent legislatures, with respect to both procedure and substance,” he writes. In truth, he notes, a overview of each state structure adopted within the nineteenth century reveals “that both explicit and nonexplicit limitations on ‘legislatures’ were widespread before, during, and after the Civil War.”
There’s merely no foundation for the declare that the Constitution grants state legislatures this sort of unaccountable energy over the conduct of federal elections. It runs counter to the fundamental thought behind the American political system, that’s, the sharing and separation of energy amongst competing and overlapping establishments. It defeats the aim of this delicate stability to provide state legislatures plenary energy over federal elections (to say nothing of how it’s incongruent with the elite frustration over the scope of states’ energy that gave rise to the Constitution within the first place).
Thankfully, the Supreme Court rejected the problem from Republicans in Pennsylvania and North Carolina. Still, there could also be 4 votes for the speculation of the “independent state legislature.” In a 2020 dissent from the bulk on the query of whether or not Pennsylvania ought to rely sure mail-in ballots, Justices Thomas, Samuel Alito and Brett Kavanaugh appeared sympathetic to the doctrine. Neil Gorsuch endorsed it outright, writing that “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”
Dissenting from the courtroom’s resolution within the North Carolina case, Alito known as the query of state legislative energy a problem of “great national importance,” a transparent sign that he’s open to the arguments of Republican legislators. Kavanaugh concurred. “I agree with Justice Alito that the underlying Elections Clause question raised in the emergency application is important, and that both sides have advanced serious arguments on the merits. The issue is almost certain to keep arising until the Court definitively resolves it.”
It is unclear the place the latest justice, the Trump appointee Amy Coney Barrett, stands on the doctrine, though she seems to have voted with the bulk in these specific instances.
