White & Kistler: “Will the Supreme Court’s Originalists Be Open to New Originalist Evidence and Reject the Independent State Legislature Theory?”

Guest post from Helen White & Cameron Kistler of Protect Democracy:

After months of percolating, at least one redistricting case invoking the so-called “independent state legislature” theory has finally reached the Supreme Court’s “shadow docket.”  In the briefest terms, proponents of that theory assert that, because the Elections Clause of Article I empowers state “Legislatures” to “prescribe[]” the “Times, Places and Manner of holding Elections for Senators and Representatives,” the state legislature (and only the state legislature) therefore possesses near-absolute power to regulate elections, unconstrained by the state constitution, the state courts, or the state Executive.  Republicans in North Carolina are now invoking this theory in asking the Supreme Court to issue an emergency stay to prevent the use of congressional maps drawn by that state’s supreme court.  Yesterday, the Court received a flurry of responsive briefs, teeing up the possibility of a decision on the theory in a matter of days.

Respondents’ briefs raised a host of arguments opposing a stay:  The State of North Carolina argued that, under the Purcell principle, it was simply too close in time to the state’s congressional primary elections to break new ground on a legal theory that could upend election administration.  Other Respondents pointed to the nearly 100 years of election-law precedent that the Supreme Court would be breaking with in order to enter a stay, and underscored the serious administrability and federalism issues that would arise under the independent state legislature theory.  When faced with similar arguments in the past, several Justices, including Justices Thomas, Alito, Gorsuch and, at times, Kavanaugh, have nonetheless signaled openness to the independent state legislature theory. 

But these briefs are not a mere rehash of prior cases.  One argument raised by both the Common Cause and League of Conservation Voters respondents relies on new historical research showing that the original public meaning of the term “legislature” necessarily included both the substantive and procedural constraints contained in state constitutions.  In their hot-off-the-press piece, Vikram and Akhil Amar explain that state constitutionalism was the “heart and soul, legally, of the American revolution.”  Through state constitutions, the people of each state delegated their sovereign power to state legislatures.  Thus, state constitutions were understood at the Founding to “define the scope of state legislatures’ legitimate authority” as delegated by the people.  At the most basic level, what a “legislature” is (how many members, selected how, with what processes and powers) can be defined only in relation to the constitution that creates it.  Thus, at the Founding, just as now, the meaning of the term state “legislature” is found not in a general dictionary definition, but in the powers, processes, and constraints included in each state’s constitution.

The League of Conservation Voters (and the Amars themselves) also relied on Hayward Smith’s new, exhaustive account of the Founding-era understanding of “legislatures.”  Smith recounts that two drafters of the “legislature” language in the analogous provision in the Electors Clause in Article II subsequently were heavily involved in adopting state constitutions that constrained state legislatures when exercising their power under the Elections Clause.  These drafters’ views are illustrative of a broader understanding among lawmakers and the public in the Founding Era; Smith found that six of the seven states that held a constitutional convention in the decade after ratification added constitutional provisions regulating federal elections.  (And yet another piece of recent originalist scholarship from Eliza Sweren-Becker and Michael Waldman offers one potential explanation why: the founding generation, in fact, were concerned that self-interested partisans would “twist[] election rules to benefit their faction.”  So given that fear, it’s both (1) unsurprising that multiple states in the early republic used their state constitutions to place certain election law topics beyond their state legislatures and (2) implausible to imagine that the founding generation that had those fears and enacted those limitations somehow meant to liberate state legislatures from their founding documents in the federal Constitution.)

In their stay application, Applicants offer no countervailing historical evidence from the Founding Era to explain why so many state constitutions regulated federal elections if doing so was, as the Applicants contend, at odds with the original public meaning of the Federal Constitution.  They instead read “legislature” in isolation and rely primarily on dictionary definitions and a stray commentary from more than 40 years post-ratification to give meaning to the word.  But, in her writings prior to joining the Court, Justice Barrett repeatedly and frequently eschewed this sort of “literalism” in originalist analysis.  ​​In particular, Justice Barrett has previously emphasized that written language “is a social construct” that “cannot be understood out of context.”  As a result, she cautioned against interpreting texts with a “literalism [that] strips language of its context,” and stressed that “there is a lot more to understanding language than mechanistically consulting dictionary definitions.” So, according to Justice Barrett, originalists must “care about what people understood words to mean at the time that the law was enacted because those people had the authority to make law.” 

The new and essential scholarship makes plain that those who “had the authority to make law” rejected the literal reading proffered by the independent state legislature theory’s proponents.  Under Justice Barrett’s view of originalism, that original public meaning of the Constitution’s text “controls because it and it alone is law.”  What remains to be seen is whether the “originalist” members of the Court who had previously endorsed the independent state legislature theory will revisit those views in light of this powerful new evidence.  With that now in hand, it would be difficult for the Court to justify staying the state supreme court’s decision based on an anachronistic reading of the constitutional text that overturns nearly 100 years of the Court’s precedent, especially in an emergency posture and without the benefit of the Court’s regular decisionmaking process.

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