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More on Elections and Independent State Legislatures
Michael Ramsey

Here are two more papers attacking (the strong version of) the independent state legislature theory.  Per my previous post, though, it seems that they do not engage the situation of the cases currently pending at the Court.

Michael Weingartner (independent) has posted Liquidating the Independent State Legislature Theory  (66 pages) on SSRN.  Here is the abstract:

Following the 2020 Presidential election, an obscure and potentially revolutionary constitutional theory re-emerged. The so-called “independent state legislature” theory posits that the Constitution vests state legislatures with plenary power to craft rules for Congressional elections and to direct the appointment of presidential electors, unbound by state constitutions and free from review by state courts. Though the Supreme Court rejected this theory in the past, in 2020 four Justices signaled their seeming approval.

The debate over the independent state legislature theory pits textual arguments against the longstanding practice of states throughout our history. Every state constitution dictates the procedure by which state legislatures may enact election laws, and state constitutions are full of provisions which regulate nearly every aspect of federal elections from voter registration to congressional redistricting to absentee voting. Nearly all these provisions were enacted with the affirmative participation of state legislatures, and since the Founding they have, though state court review, constrained the authority of state legislatures when enacting election laws.

This Article operationalizes this history by applying James Madison’s analytical framework of “constitutional liquidation,” recently endorsed by the Supreme Court in Chiafalo v. Washington to resolve whether states could control the votes of presidential electors. This framework posits that the meaning of indeterminate constitutional text may be liquidated—that is, settled—by longstanding and broadly accepted historical practice. Applying that framework here reveals that, while the constitution’s text may be unclear as to the role of state constitutions in regulating federal elections, subsequent practice and the acquiescence of state legislatures, Congress, and the public has settled the Constitution’s meaning and rejected the independent state legislature theory.

Carolyn Shapiro (IIT Chicago-Kent College of Law) has posted The Independent State Legislature Claim, Textualism, and State Law (50 pages) on SSRN.  Here is the abstract:

During the litigation surrounding the 2020 election, the independent state legislature claim (“ISLC”) , emerged as a potentially crucial factor in the presidential election. The ISLC rests on the Electors and Elections Clauses of the Constitution, which assign decisions about federal elections to state legislatures. Maximalist versions of the ISLC assert that state constitutions’ substantive provisions cannot apply to state election laws governing federal elections, that state courts’ statutory interpretation of such laws must be rigidly textualist and are reviewable, apparently de novo, by federal courts, and that delegations of decision-making authority to non-legislative bodies may be limited, albeit in unspecified ways.

This Article charts the emergence of this unprecedented reading of the Electors and Elections Clauses and examines both its justifications and practical implications. Its central claim is that the maximalist ISLC is an unprecedented, unconstitutional, and potentially chaos-inducing intrusion into state election law. Those promoting this maximalist interpretation skip the crucial step of statutory interpretation—asking what the state legislature actually did. As a result, the maximalist ISLC undermines its own claims to promote political accountability and predictability by failing to engage in the question of whether a legislature has in fact rejected the state constitution and other aspects of state law. The Article concludes with suggestions for the Supreme Court, Congress, state actors, and litigants, to protect the continued independence of state election law.