A Historical Challenge to the Independent State Legislature Theory

Sean Daly (MA, Political Science, NIU) shares these thoughts:

In the 1930s the Court unanimously decided Smiley v. Holm, Secretary of State, 285 U.S. 355 (1932), Koenig et al. v. Flynn, Secretary of State, et al., 285 U.S. 375 (1932), and Carroll v. Becker, Secretary of State, 285 U.S. 380 (1932). These cases dealt with the issue of redistricting in Minnesota, New York, and Missouri, respectively, following the fifteenth decennial census. The lead case, Smiley, was authored by Chief Justice Hughes and used to decide the two subsequent cases. At issue in each case was the role of the State Governor, under Article I, section 4 of the U.S. Constitution, in a state’s redrawing of district lines for congressional elections. According to the facts stated in Smiley, the Minnesota legislature (then controlled by Republicans) passed a bill known as House File No. 1456, which created new congressional districts. The Governor (Farmer-Labor), returned the bill without his approval. A resolution in the State House then required the bill to be deposited with the Secretary of State, putting into effect the provisions of House File No. 1456. The Court in Smiley stated the question as, “[W]hether the provision of the Federal Constitution, thus regarded as determinative [Art. I, sec. 4], invests the legislature with a particular authority and imposes upon it a corresponding duty, the definition of which imports a function different from that of lawgiver and thus renders inapplicable the conditions which attach to the making of state laws” (285 U.S., at 365). The Minnesota Supreme Court (184 Minn. 228), from which the appeal in Smiley was taken, had concluded that “the legislature in redistricting the State was not acting strictly in the exercise of the lawmaking power but merely as an agency, discharging a particular duty in the manner which the Federal Constitution required” (285 U.S., at 364). In reversing the State Supreme Court, Chief Justice Hughes discussed the different functions performed by a state legislature, under different provisions of the federal constitution, and concluded that the function contemplated by Art. I, sec. 4, was that of “making laws,” and that this law-making function “must be in accordance with the method which the State has prescribed for legislative enactments” (285 U.S., at 366-67). Article I, section 4, of the Federal Constitution did not confer upon the state legislature a power to act independently of the other branches of government. As the legislature’s role under Art. I, sec. 4, was that of traditional law-making, it was bound to act in accordance with the provisions of the state constitution. Immediately following the Court’s decisions, a New York Times headline read “Highest Court Voids State Redistricting: Supreme Tribunal Upsets Republican Action Which Ignored Governor Roosevelt” (April 12, 1932 [attached]). This was a reference to the decision in Koenig (affirming the decision of the N.Y. Court of appeals, 258 N.Y. 292), where the redistricting act in question was passed by New York’s Republican controlled legislature and vetoed by Governor Roosevelt (Democrat).

In sum, members of the Republican Party in 1932 made the same argument – focusing on a different branch of state government – that the Party is making today. Then, the ISL Theory (as it is called today) was asserted as a means of bypassing the veto of opposition party Governors. Today, the ISL Theory is being asserted to bypass state courts. Even the arguments made in the briefs before the Supreme Court in the above mentioned cases are similar to those being made today (I have pdf copies of the briefs if you are interested). In my reading of these prior cases the Court directly refutes the claim that the state legislature acts “independently” with regards to election laws, as you point out with your reference to Smiley. Usage of the term “Independent State Legislature” does not even make sense given these precedents, as the Court has already said that the legislature does not act independently under Art. I, sec. 4 of the Constitution (perhaps a more accurate term would be, the “Independent of State Courts” Theory).

Correction: The above text has been edited to reflect the fact that Minnesota’s governor in the early 1930s was a member of the Farmer-Labor Party, not the Democratic Party.

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