I was glad to see the recognition in this Jamel Bouie piece of the important historical work of my former NYU student, Hayward Smith. As Hayward says in the piece quoted here, he first wrote about the independent state legislature doctrine in 2001, and expected the piece to remain obscure. But he’s now revisited the issue, in light of more recent developments, and while in private practice produced a 100+ page excavation of the history relevant to debates over the doctrine. From the NYT piece:

Recently, Republicans in North Carolina and Pennsylvania asked the U.S. Supreme Court to block congressional maps drawn by their state courts. Their argument was based on a revolutionary doctrine that would tee up this fundamental change to the American political system….

Nestled at the heart of the Republican argument is a breathtaking claim about the nature of state legislative power. Called the independent state legislature doctrine, it holds that Article I, Section 4 of the U.S. Constitution — which states that “the Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators” — gives state legislatures total power to write rules for congressional elections and direct the appointment of presidential electors, unbound by state constitutions and free from the scrutiny of state courts….

“The text of the elections and electors clauses is silent as to the role of state constitutions, but the subsequent history is anything but,” the legal scholar Michael Weingartner writes in a draft article on the theory of independent state legislatures. “Since the founding, state constitutions have both directly regulated federal elections and constrained state legislatures’ exercise of their authority under the clauses.” What’s more, over the past century, “nearly every election-related state constitutional provision was either approved and presented to voters by state legislatures or placed on the ballot and enacted by voters directly.” Even if the federal Constitution is vague on the full scope of state legislative power to regulate elections, both history and practice have fixed the meaning of the relevant clauses in favor of constraint. State constitutions (and state courts) do in fact regulate state legislatures as it relates to election law.

Some proponents of the independent state legislature doctrine argue that theirs represents the original understanding of the elections and electors clauses in the Constitution. Another researcher, Hayward H. Smith, says otherwise. “The history demonstrates beyond cavil that the founding generation understood that ‘legislatures’ would operate as normal legislatures, not independent legislatures, with respect to both procedure and substance,” he writes. In fact, he notes, a review of every state constitution adopted in the 19th century reveals “that both explicit and nonexplicit limitations on ‘legislatures’ were widespread before, during, and after the Civil War.”…

Dissenting from the court’s decision in the North Carolina case, Justice Alito called the question of state legislative power an issue of “great national importance,” a clear signal that he is open to the arguments of Republican legislators. Justice Kavanaugh concurred. “I agree with Justice Alito that the underlying elections clause question raised in the emergency application is important, and that both sides have advanced serious arguments on the merits. The issue is almost certain to keep arising until the court definitively resolves it.”

It is unclear where the newest justice, the Trump appointee Amy Coney Barrett, stands on the doctrine, although she appears to have voted with the majority in these particular cases.