The Independent State Legislature Doctrine

60 Pages Posted: 24 Nov 2021

See all articles by Michael Morley

Michael Morley

Florida State University - College of Law

Date Written: November 11, 2021

Abstract

The U.S. Constitution grants authority to both regulate congressional elections and determine the manner in which a state chooses its presidential electors specifically to the legislature of each state, rather than to the state as an entity. The independent state legislature doctrine teaches that, because a legislature derives its power over federal elections directly from the Constitution in this manner, that authority differs in certain important respects from the legislature’s general police powers that it exercises under the state constitution. Although the doctrine was applied on several occasions in the nineteenth century, it largely fell into desuetude in the years that followed. During the 2020 presidential election cycle, however, several Justices issued opinions demonstrating an interest in recognizing and enforcing the doctrine.

This Article contends that the doctrine is best understood as a general principle that gives rise to a range of different potential corollaries, each of which is supported by somewhat differing lines of precedent, reasoning, historical practice, and prudential considerations. Each of these potential implications of the doctrine may be assessed separately from the others; the doctrine need not be accepted or repudiated wholesale. The fact that a court or commentator may accept or reject certain applications of the doctrine does not mean that other aspects, or the doctrine as a whole, must be similarly embraced or jettisoned. This Article unpacks the independent state legislature doctrine, exploring and offering a normative perspective on each of its possible corollaries.

Keywords: election, voting, statutory interpretation, constitutional interpretation, Elections Clause, Presidential Electors Clause, independent state legislature doctrine, erie, federalism, state constitution, independent redistricting commission, separation of powers, U.S. Constitution

Suggested Citation

Morley, Michael, The Independent State Legislature Doctrine (November 11, 2021). Fordham Law Review, Vol. 90, 2021, Available at SSRN: https://ssrn.com/abstract=3961147

Michael Morley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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