Jason Willick has a Washington Post column with which I very much agree. The basic argument is that it’s a mistake, both substantively and strategically, to think of the “independent state legislature doctrine” as an all-or-nothing proposition, without any possibility of a middle ground position. Willick emphasizes the strategic point: if forced to choose between all or nothing, enough of the conservative justices on the Court are likely to choose all, which would be a very bad thing for the idea of state constitutions being able to constrain state legislatures with respect to election laws applicable to congressional and presidential elections. I’ll mention here briefly one element of the substantive point: imagine a state constitutional provision that explicitly delegated all power to write the rules for congressional or presidential elections, not to the state’s legislature, but instead to the state judiciary. It’s hard to argue that this kind of complete transfer of authority from one branch of state government to another, in contravention of the federal Constitution’s explicit textual assignment of this authority to the state’s legislature rather than any other part of the state’s government, is not a case at one end of the spectrum, which would be on the unconstitutional side of the line wherever the line ultimately should be drawn. Once it’s recognized that the independent state legislature issue presents a difficult line-drawing situation, rather than an all-or-nothing proposition, there can be productive efforts to figure out exactly where to draw that line. Willick cites Derek Muller’s contribution to that effort on this blog.

Although I haven’t yet settled in my own mind where and how exactly to solve this difficult line-drawing problem, I’ve been spending more time thinking about a distinction that I think is consistent with Derek’s approach: the difference between specific commands of a state constitution that otherwise leave legislative authority with the state legislature, which would be on the permissible side of the line, and vague clauses of a state constitution that functionally give unconstrained power to the state’s judiciary to override any state statute regulating elections that the state judiciary finds objectionable, which would be on the problematic side of the line. As Willick says, enough conservative justices on the Supreme Court are in all likelihood sufficiently troubled by what they perceive to be partisan state courts rewriting state election laws without constraint (the Florida Supreme Court in 2000 and the Pennsylvania Supreme Court in 2020 being at the forefront of their minds on this point) that it will be necessary to provide a distinction between that situation from another category of cases, where clear and specific commands written into state constitutions do not function effectively to give the state courts carte blanche to substitute their choices on what election rules should be for the choices that the state legislatures made on the very same issues.

I recognize the power of the argument that the federal Supreme Court should stay out of this turf battle between two branches of state government, at least as long as the state courts plausibly can argue that they are exercising judicial power to enforce constitutional commands (however vague they may be) against state legislatures violating those constitutional commands (according to the rulings of the courts), rather than state courts exercising pure policymaking discretion given to them by the state constitution. Perhaps this distinction between courts exercising an interpretative rather than policymaking function could be a different place for the federal Supreme Court to draw the line. If so, I suppose there would be a debate about what’s genuinely interpretative versus functionally non-interpretive policymaking–in which case, this attempt to draw the line in a different place might end up rather like drawing the line between specific and vague constitutional commands.

The main point remains the need for a serious line-drawing discussion, rather than the all-or-nothing discussion that seems to be dominant at the moment.