Carolyn Shapiro: The “Independent State Legislature Doctrine” is an Affront to State Constitutions and State Courts

Carolyn Shapiro at Slogblog:

The ISLD is problematic for numerous reasons, but one that Judge Sutton might appreciate is that the doctrine, at least in its most extreme forms, is deeply contemptuous, even destructive, of a legal and political culture that takes state constitutions – and state courts – seriously. Many state constitutions have “free elections” clauses. In Arizona, for example, Article 2, section 21 of the state constitution reads: “All elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” In New Hampshire, Part I, Article 11 of the constitution states: “All elections are to be free, and every inhabitant of the state of 18 years and upwards shall have an equal right to vote in any election.” There is no federal counterpart to these clauses.

And as Judge Sutton would expect, different state courts have interpreted and applied their free elections clauses differently. In 2014, for example, a Pennsylvania court declared a voter ID law unconstitutional under that state’s version of the clause because the statute failed to provide a “non-burdensome means of obtaining compliant photo ID.” The free elections clause also played a role in the Pennsylvania court’s ruling on gerrymandering. On the other hand, otherstate courts have upheld their voter ID laws against similar state constitutional challenges.

A maximalist ISLD, however, might suggest that a Pennsylvania constitutional holding cannot apply to federal elections. Indeed, the Republican party so argued in 2020 when it asked the U.S. Supreme Court to reverse a different Pennsylvania Supreme Court case related to absentee ballots. Leaving aside the merits of voter ID laws themselves and the administrative challenges of different requirements for state and federal elections, there would be consequences to this approach that should concern anyone interested in the development of state constitutional law.

For one thing, a state court might be more reluctant to find robust state constitutional protections, or to rely on constitutional avoidance when construing election laws, if doing so could lead to a two-tiered voting system. In other words, the ISLD could have a chilling effect on the state courts’ evaluation of their own laws and constitutional provisions. And as Judge Sutton has suggested, that chilling effect could implicate the development of federal constitutional law as well.

Second, this maximalist ISLD could well send voters a message of no confidence in their state courts….

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