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07/27/2022

Patterico on Moore v. Harper and the Independent State Legislature Doctrine
Michael Ramsey

From Patterico at Substack: In Defense of the Independent State Legislature Doctrine, Part 1: The "radical" idea that can be found only in the minds of crazed Federalist Society conservatives . . . and, oh yeah, also in the text of the Constitution itself.  From the introduction:

The Supreme Court has agreed to hear a case called Moore v. Harperinvolving a theory known as the “independent state legislature” doctrine (ISLD). The left confidently declares this doctrine to be radical and insane — a recently concocted bit of buffoonery by Federalist Society types who can’t really be serious. Matthew Cooper of the Washington Monthly calls it “the crazy ‘independent legislature’ doctrine.” The reliably incorrect Ian Millhiser at Vox declares Moore v. Harper to be “perhaps the gravest threat to American democracy since the January 6 attack.” Steve Benen terms the ISLD “an obscure idea” that could be used to overthrow presidential elections. Rick Hasen calls it an “extreme position” that “could help foment election subversion.” NPR says it “could radically reshape elections for president and Congress.” Radley Balko has a typically sober and restrained take, writing that he “[c]an’t emphasize enough how batshit this is.”

What is this obscure, crazy, extreme, radical position that has the lefties (and, as we will see, Michael Luttig) in such a lather? As it turns out, it is really nothing more than reading the Constitution to mean what it says. There are arguments against the ISLD, some of which are plausible and some of which are just silly. It’s my purpose in this set of pieces to begin to evaluate them for you. But any rational discussion of the subject has to acknowledge that the doctrine really does nothing more than give a plain reading to the clear text of the Constitution — which, the last time I checked, was still the supreme law of the land.

The discussion will proceed in at least two parts, because putting them in a single newsletter challenged the Substack length limits. Today, I will discuss the textual basis for the ISLD. I will note that support for the ISLD does not imply that legislatures may follow the Trump Blueprint of holding an election and then changing the results if they don’t like them. That idea actually is insane. Then, for paying subscribers, I will take on the issue of whether state legislative action in this area can be trumped by state constitutional provisions. (Hint: I believe it is not.)

And from later on:

So what does this wacky independent state legislature doctrine say? Well, it says that when the Constitution uses the phrase “the Legislature thereof” in the above passages [that is, Articles I, Section 4 relating to selection of Senators and Representatives and Article II, Section 1 relating to selection of presidential electors], it refers to the state legislature and not the state’s entire tripartite political structure, including the judiciary and the executive.

That’s it. That’s the whole crazy theory: that the word “legislature” means “legislature.” Damn those Federalist Society types!!!1!!!

I have included bold emphasis in my quotes from the Constitution above, to make it clear that the Constitution says that “the Legislature” of a state is the body that decides the “Manner” in which electors are chosen in that state, as well as “The Times, Places and Manner” of elections for Senators and Representatives.

...

Now, of course, it’s not entirely that simple. There is a whole cottage industry of commentary out there designed to convince you that the word “legislature” doesn’t really mean “legislature,” and you may or may not be surprised to learn that these arguments are not always completely insane. I find some of them supremely unpersuasive and others slightly more plausible. If you’re going to discuss this issue intelligently, you should know what these arguments are. Some of these arguments are addressed today, and some will be addressed in a future newsletter.

But before we get to those arguments, I want to caution readers that, just because the state legislatures are in charge under the ISLD, that does not mean they should get to invalidate statewide presidential elections that have already occurred. I think that is one of the biggest concerns of those worried about state legislatures having plenary control over appointing electors....

As the excerpts suggest, this is as fun a read on the independent state legislature doctrine as you're likely to find.  And I think it's largely correct to this extent:  state legislatures (and only state legislatures) get to pick the method of selecting members of Congress and presidential electors.  That conclusion does not answer a secondary question as to the extent to which legislatures are constrained in making this choice by the ordinary rules of legislation in their respective states.  But I do think a fair implication of the constitutional language is that state executives and (especially) judges do not get to make the choice.  And it seems that that may be what has been happening in at least some cases.

(Also I agree that some of the commentary on Moore v. Harper has been extraordinarily intemperate and apocalyptic). 

(Thanks to Andrew Hyman for the pointer).