Georgetown’s Project on State and Local Government recently hosted a discussion of the Moore case and the independent state legislature doctrine. My contribution is now posted on their blog, here. I’ll also include a few excerpts here:

As we consider the issues raised in the Moore v. Harper case, scheduled for oral argument on December 7, I have emphasized that there is not just one version of a potential “independent state legislature” theory that the Court might adopt, but several different versions. If the Court endorses the doctrine, the practical ramifications will depend on which of these versions it adopts. Moore will not of course address all these versions, only those directly at issue in that case, but it is important to consider the bigger picture.

Before discussing the versions of a potential ISLT most directly involved in Moore, it’s helpful to clarify what the ISLT is not about, because there is a great deal of misinformation about that in wide circulation. Even if the Court endorses the doctrine, I see no prospect that the doctrine would mean governors cannot exercise their ordinary veto powers over state legislation regulating national elections. That issue is a red herring. None of the scholars who endorse the ISLT – there are scholars who do, and of course advocates, as a recent panel hosted by Georgetown Law’s SALPAL shows — believe it leads to the conclusion that governors lose their veto powers. That is evidence of how even proponents of the theory tend to understand its scope. In addition, the Supreme Court has expressly held that the Elections Clause, under which this issue arises, does not affect the state-law powers of governors to veto legislation, and has similarly held that that when state law permits voters in a referendum process to veto state laws, including those regulating national elections, that veto power in the voters remains intact.

Second, no matter what the Court decides about the ISLT, it would still not mean state legislatures could choose simply to ignore the popular vote in their state and appoint presidential electors themselves after the election….

[One] version of the doctrine at issue in Moore would adopt a clear-statement type of rule regarding the ability of state constitutions to impose these substantive constraints. This position would distinguish state constitutional provisions that are clear or “specific” and those that are more “general.” In this version of the ISLT, the former could be judicially enforced in the context of federal elections but the latter could not. Thus, a provision requiring that the state use a Top-2 or Top-4 primary structure for federal election primaries, or a provision banning taking partisan considerations into account in drawing districts would provide a clear statement that would permit state judicial enforcement. But more “general” state constitutional provisions, such as provisions common to many state constitutions that guarantee the right to “free and equal” elections, could not be judicially enforced. On this view, if a state court applies these type of “general” provisions to hold unconstitutional state election laws regulating federal elections, the state court has violated the federal Constitution.

There are passages in the judicial statements of Justices Alito and Thomas in the 2020 election cases that suggest such a “clear-statement” rule. But this position would require federal courts to determine just how clear and specific state constitutional provisions must be to “specific enough” rather than “too general” to constrain state election rules permissibly without violating the federal Constitution. It is not at all clear this distinction can be given principled, consistent content. Absent such ability, a troubling risk exists that federal judicial judgments about this line would rest on highly subjective judgments.

Most state constitutions contain provisions guaranteeing the right to vote, or requiring equal protection of the laws, or securing the right to free and fair elections. Are these provisions unenforceable in federal elections because they are “too general”? Another issue this view would have to confront is how to address “general” constitutional provisions that state courts have given more specific content to over time, through the development of precedent. After all, many constitutional provisions are stated in highly general terms – consider all the Supreme Court precedents determining the meaning of the First Amendment or the federal Equal Protection Clause – but take on much more determinate meaning over time through judicial decisions. If a “general” state constitutional provision has been given “specific enough” content through precedent over time, can state courts now enforce that provision against state election laws regulating federal elections? Will federal courts review that series of state decisions to determine if the decision before them fairly follows from that earlier line of precedent or strays “too far” from it? If the same provision exists in two state constitutions – such as a provision guaranteeing the right to vote – would state enforcement of that provision not violate the federal Constitution in a state that has given the provision much more specific content over time but would violate the federal Constitution in a state with more sparse precedent on the provision?

An ISLT that would distinguish between “specific” and “general” state constitutional provisions would be less extreme than one which precluded application of all state constitutional constraints. But even leaving aside the intrusion on state court development of state constitutional law such a view would entail, any effort to apply that distinction would be fraught with uncertainty, difficult if not impossible to apply in a consistent, principled way, and would pose a serious risk of highly subjective federal court judgment about which constitutional provisions, in which states, could be applied to state laws regulating federal elections. State legislatures have always been understood to be created by their state constitutions, and to be required to act within the limits those constitutions, as construed by the state courts, impose. Hopefully Moore will not disrupt that understanding.