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03/06/2022

Helen White & Cameron Kistler on Originalism and Meaning of State Legislatures
Michael Ramsey

At Election Law Blog, Helen White & Cameron Kistler: “Will the Supreme Court’s Originalists Be Open to New Originalist Evidence and Reject the Independent State Legislature Theory?”  From the introduction:

After months of percolating, at least one redistricting case invoking the so-called “independent state legislature” theory has finally reached the Supreme Court’s “shadow docket.”  In the briefest terms, proponents of that theory assert that, because the Elections Clause of Article I empowers state “Legislatures” to “prescribe[]” the “Times, Places and Manner of holding Elections for Senators and Representatives,” the state legislature (and only the state legislature) therefore possesses near-absolute power to regulate elections, unconstrained by the state constitution, the state courts, or the state Executive.  Republicans in North Carolina are now invoking this theory in asking the Supreme Court to issue an emergency stay to prevent the use of congressional maps drawn by that state’s supreme court.  Yesterday, the Court received a flurry of responsive briefs, teeing up the possibility of a decision on the theory in a matter of days.

And on the key originalist point: 

One argument raised by both the Common Cause and League of Conservation Voters respondents relies on new historical research showing that the original public meaning of the term “legislature” necessarily included both the substantive and procedural constraints contained in state constitutions.  In their hot-off-the-press piece, Vikram and Akhil Amar explain that state constitutionalism was the “heart and soul, legally, of the American revolution.”  Through state constitutions, the people of each state delegated their sovereign power to state legislatures.  Thus, state constitutions were understood at the Founding to “define the scope of state legislatures’ legitimate authority” as delegated by the people.  At the most basic level, what a “legislature” is (how many members, selected how, with what processes and powers) can be defined only in relation to the constitution that creates it.  Thus, at the Founding, just as now, the meaning of the term state “legislature” is found not in a general dictionary definition, but in the powers, processes, and constraints included in each state’s constitution.

The League of Conservation Voters (and the Amars themselves) also relied on Hayward Smith’s new, exhaustive account of the Founding-era understanding of “legislatures.”  Smith recounts that two drafters of the “legislature” language in the analogous provision in the Electors Clause in Article II subsequently were heavily involved in adopting state constitutions that constrained state legislatures when exercising their power under the Elections Clause.  These drafters’ views are illustrative of a broader understanding among lawmakers and the public in the Founding Era; Smith found that six of the seven states that held a constitutional convention in the decade after ratification added constitutional provisions regulating federal elections.  (And yet another piece of recent originalist scholarship from Eliza Sweren-Becker and Michael Waldman offers one potential explanation why: the founding generation, in fact, were concerned that self-interested partisans would “twist[] election rules to benefit their faction.”  So given that fear, it’s both (1) unsurprising that multiple states in the early republic used their state constitutions to place certain election law topics beyond their state legislatures and (2) implausible to imagine that the founding generation that had those fears and enacted those limitations somehow meant to liberate state legislatures from their founding documents in the federal Constitution.)

The relevant clause is Article I, Section 4, clause 1:

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.

I haven't looked at this issue closely.  On a quick reflection, it seems likely to me that this language was understood to give power to the legislatures of the states, acting pursuant to their (state) constitutional procedures.  So there's nothing remarkable about the proposition that early post-ratification state constitutions contained provisions regulating federal elections.  But it seems an entirely different matter to have, as the post itself describes it, "congressional maps drawn by [the] state’s supreme court."  The state supreme court is not the legislature.  That's a fundamental proposition of eighteenth century separation of powers.  The state supreme court can say, I would think, that a map drawn by the legislature is unconstitutional because it doesn't follow the requirements of the state constitution.  But the state court cannot itself draw the map (or order a particular map, other than one drawn by the legislature) to be used.  I bet there is no founding era precedent for a state supreme court prescribing the "Times, Places and Manner of holding Elections."