Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish

Abstract

The Court’s rulings in Bush v. Gore were disgraceful, and efforts two decades later to rehabilitate and recycle some of the worst aspects of the Court’s opinions in that litigation deserve loud condemnation by intellectually honest judges and scholars across the ideological and methodological spectra. In particular, the notion – advanced in recent years by litigants, several Justices and a few law professors – that Article II of the Constitution confers power on elected state legislatures, in regulating the selection of presidential electors, to disregard the very state constitutions that created and confine those legislatures, and the related notion that federal (rather than state) courts are in this setting the appropriate judicial interpreters of state election laws and state constitutional provisions, are utterly indefensible. The “Independent-State-Legislature” theory, as it is called by some of its proponents, runs completely counter to originalist and structural understandings of the Constitution in 1787, to actual state legislative practice and intentions, and to settled judicial precedent from the Court itself over the past century.