My Testimony on the Independent State Legislature Theory Today to the House Committee on Administration

I have been invited to testify today to this committee at a hearing on the independent state legislature theory. My written testimony, available here, first explains that there are several different versions of what an “independent state legislature doctrine” might mean. My testimony goes on to (1) assess the historical evidence, for or against, each of these different versions and (2) describe the potential ramifications of each of these versions of such a doctrine, should the Supreme Court adopt one or more of them.

The “maximalist version” of such a doctrine would hold that state constitutions cannot impose substantive constraints on the powers of state legislatures to regulate national elections (even though state constitutions can impose those same constraints on the power of state legislatures to regulate national elections). Here’s an excerpt on that version of such a doctrine:

This is a sampling of the vast array of provisions regulating federal elections that are found in state constitutions or voter-initiated legislation, all of which would be threatened by the maximalist version of the ISLT:  provisions banning straight-ticket voting; voter identification requirements; the deadlines for voter registration; provisions establishing all-mail voting systems; provisions regulating the absentee-ballot process; provisions banning voters who failed to vote in the general election from voting in run-off elections; how to fill vacant Senate seats (by special election rather than gubernatorial appointment); provisions on the thresholds required to be elected to office (plurality-vote or majority-vote provisions); provisions for challenging the validity of votes; the criteria to be used in redistricting, such as whether districts must be compact, whether partisan considerations are banned or constrained, what weight to be given to competitiveness; whether districting is to be done by independent commissions.  A number of these provisions date to early state constitutions.

The regulation of primaries for federal elections is an area particularly worth singling out.  As voters have become dissatisfied with the nature of politics in recent years, they have sought to reform the structure of primaries in several states.  These reforms are motivated, in part, by the belief that factional candidates can win nomination in the traditional form of primaries, and in safe seats, those candidates will go on to win the general election.  These reforms seek to modify the structure of primaries and voting rules to make it more likely candidates with broad majority support, rather than more factional candidates, will be rewarded (and will also, therefore, be more likely to run in the first place).  In Washington and California, voters adopted the Top-2 structure for primaries, in which all candidates run in a single primary and the top two then go on to compete in the general election.  In Maine, voters adopted ranked-choice voting (RCV) for federal and state primaries and the general election.  Most recently, in 2020 voters in Alaska adopted the Top-4 primary structure, with RCV to be used in the general election.  Whether or not these reforms turn out to have the beneficial effects their proponents believe they will have, they are examples of the ways in which voters over the years have sought to reform the democratic process to make it more responsive to their concerns.

This brief sampling suggests how destabilizing the maximalist version of the ISLT would be.  The way in which federal elections have been conducted for many decades in states would be overturned.  The ability of voters, through voter-initiated constitutional amendments or voter-initiated legislation, to change the structure of elections would be eliminated.  In theory, Congress could legislate to approve all these provisions, or legislatures in individual states could choose to adopt through legislation all the provisions in their states currently found in state constitutions or popular enactments.  For certain rules that have become widely accepted by now, state legislatures would, if required by the federal Constitution, affirmatively enact those rules.  But that hardly seems likely for the full range of these substantive provisions, in part because legislators have a strong self-interest in structuring election rules in ways that benefit themselves and their partisan allies. In addition, nearly all these provisions apply to both state and federal elections. 

If they are unconstitutional as applied to federal elections, another consequence is that states would face the prospect of running dual election-administrative systems, with different rules governing state and federal elections (unless the legislature adopted these provisions for federal elections).  It would also mean state legislatures have more power to regulate federal elections than they do their own state elections. 

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