In The Atlantic, William Baude (Chicago) & Michael W. McConnell (Stanford): The Supreme Court Has a Perfectly Good Option in Its Most Divisive Case -- In Moore v. Harper, the justices should not side with the views of either party. From the introduction:
Later this term, the Supreme Court will decide Moore v. Harper, a case that has been pitched as a seismic clash between two troubling positions. One side asks for state legislatures to be freed from the traditional safeguards of state constitutional law, while the other asks the Court to effectively ignore the text of the Constitution. The Court should look beyond these unsupportable positions and take a commonsense middle ground. Fortunately, one is readily available: an approach that maintains the Constitution’s emphasis on state legislatures without divorcing them from their traditional constitutional constraints.
And from later on:
We think neither of [the parties'] positions is convincing. The state respondents would rewrite the Constitution to replace the term legislature with the term state. Given the specific references to legislature, executive, judges, and conventions in various parts of the Constitution, it is not plausible to think that these institutional designations can be disregarded as meaningless. Rather, the Framers of the Constitution appear to have believed that a power so central to democratic governance should be vested in the branch of state government that is most representative of its people.
The state legislative petitioners, for their part, ignore the fact that the state legislature is created and governed by the people of the state through their state constitution. Even in matters of election law, the state legislature meets when and where its constitution says to meet and is organized the way the state constitution says it’s to be organized. There is no reason to think that the Framers of the federal Constitution intended to liberate state legislatures from the ordinary constraints of state constitutional law.
...
Missing from the debate has been a key principle that points to a sensible middle ground: A state constitution may limit a legislature’s power over federal elections, but it may not give that power to somebody else. We need not an independent-state-legislature doctrine, but a constitutional-state-legislature doctrine.
In a constitutional republic like ours, legislatures ultimately derive their authority from the people. This authority is conveyed through written constitutions that charter the government, vest power in different branches, and regulate the exercise of that power. A state legislature’s power to pass laws should be seen through this constitutional lens. Because state legislatures derive their lawmaking power from their own people, their authority is limited to what their state constitution gives them. When the federal Constitution gave state legislatures additional authority, it took them as it found them, as created by state constitutions rather than a new free-floating entity. State legislatures are not independent of their constitutions.
But the claim that state courts may hold state legislatures to state constitutional limits does not mean that they can replace the legislature. The federal Constitution’s text explicitly empowers one of these branches to regulate federal elections, not the other. (There is one Supreme Court case from 2015 that adopted a very capacious definition of legislature to uphold an independent redistricting commission, but that decision was 5–4, distinguishable, and, most important, wrong.) State legislatures must act according to their state’s constitutional constraints. But it must still be the state legislatures that act. ...
Agreed. Of the many strongly worded attacks on the independent state legislature theory, I haven't seen one that refutes this modest version of it.
(Thanks to Andrew Hyman for the pointer).
UPDATE: William Baude has further thoughts here.
