Liquidating the Independent State Legislature Theory
65 Pages Posted: 2 Mar 2022 Last revised: 18 Apr 2022
Date Written: September 25, 2021
Following the 2020 Presidential election, an obscure and potentially revolutionary constitutional theory re-emerged. The so-called “independent state legislature doctrine” 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.
Keywords: textualism, originalism, separation of powers, civil rights, founding era, elections, voting, election law, voting rights, federalism, state constitutional law, constitutional law, legal history, historical gloss, independent state legislature doctrine, state legislature, congress, supreme court
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