#2DaysOut: “The Textual Problem with the Presidential Version of the Independent State Legislature Argument” (Nick Stephanopoulos)

The following is a symposium contribution from Nick Stephanapoulos (Harvard):

As the independent state legislature (ISL) argument has risen to prominence this past week, courts and commentators alike have assumed that it has the same force under both Article I and Article II. If the argument holds, that is, state legislatures should enjoy the same vast power under both provisions—only with respect to congressional elections under Article I and with respect to presidential elections under Article II. But examining the provisions’ text more carefully, I’m not sure that’s right. Rather, as a textual matter, state legislatures’ Article II authority appears to be significantly more confined than their Article I power over congressional elections. (Again, assuming an ISL doctrine exists in the first place.)

Starting with Article I’s Elections Clause, it authorizes state legislatures to prescribe “[t]he Times, Places and Manner of holding Elections for Senators and Representatives.” The italicized language plainly refers to congressional elections themselves. So if there is such a thing as an ISL doctrine, the Elections Clause empowers state legislatures to regulate all aspects of congressional elections.

Article II’s Electors Clause, however, does not include language like that italicized above. It does not authorize state legislatures to regulate the manner of holding presidential elections. Instead, it empowers state legislatures to “direct” the “Manner” in which “[e]ach State shall appoint . . . a Number of Electors.” Facially, the manner in which electors are appointed is different from the manner in which elections are held. The former phrase refers to the method by which electors are chosen: a winner-take-all election, election by congressional district, selection by the state legislature, and so on. The former phrase—unlike the language of the Elections Clause—does not encompass every aspect of presidential elections.

Thanks to this textual distinction, state legislatures’ Article II authority over presidential elections may be more circumscribed than their Article I power over congressional elections. Under Article I, state legislatures may be able to regulate all facets of congressional elections without interference from other state actors (once more if an ISL doctrine exists). But under Article II, state legislatures may only be able to direct the manner in which electors are appointed without interference from other actors. They may not have the same exclusive authority over any other elements of presidential elections.

The Supreme Court’s limited precedent on the Electors Clause supports this reading. In the 1892 case of McPherson v. Blacker, the Court described state legislatures’ power under the Clause as “plenary authority to direct the manner of appointment.” There was no suggestion that state legislatures possess plenary authority over aspects of presidential elections beyond the “mode of appointment of electors.” Similarly, in his 2015 dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission, Chief Justice Roberts wrote that the Electors Clause “vests the power to determine the manner of appointment in ‘the Legislature’ of the State.” He, too, didn’t claim that the Clause vests any other power over presidential elections in state legislatures. And still more recently, in this year’s Chiafalo v. Washington case, the Court held that “Article II, § 1’s appointments power gives the States far-reaching authority over presidential electors.” Again, there was no hint of such far-reaching authority over presidential elections’ other attributes.

The important implication of this reading is that several judges may have erred this week when they argued that there were ISL problems when state courts or state agencies (as opposed to state legislatures) regulated aspects of presidential elections. In none of the cases where this issue arose did a non-legislative actor try to change the manner of presidential electors’ appointment. In all of the cases, to the contrary, non-legislative actors addressed facets of presidential elections unrelated to electors’ mode of appointment: specifically, Minnesota’s, North Carolina’s, and Pennsylvania’s deadlines for the receipt of mail-in ballots. Plainly, whether these deadlines shifted or stayed the same, the states’ methods of choosing their electors—winner-take-all popular elections—would not have changed. Arguably, that should have been the end of the Electors Clause analysis (even if there is an ISL doctrine). Based on the constitutional text, there can’t be an ISL violation when a non-legislative actor doesn’t try to alter the state legislature’s chosen manner of appointment.

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