The following is a guest post from Ethan Herenstein of the Brennan Center:
In their reply brief defending the independent state legislature theory (ISLT), the petitioners in Moore v. Harper doubled down on the assertion that when state legislatures make rules for congressional elections, they are performing a “federal function”—i.e., exercising federal power delegated by the federal Constitution, rather than state power conferred by state constitutions. This particular argument—which the petitioners raised multiple times in their reply brief—has emerged as one of their principal points. But it’s fundamentally flawed.
In Moore, the petitioners contend that the North Carolina General Assembly could draw congressional maps that violate the state constitution because congressional map drawing is a “federal function assigned to them by the [Elections Clause of the federal Constitution (Article I, Section 4)]” and therefore subject only to “federal constitutional constraints.” They’re not the first to assert as much. Michael Morley, a leading academic expositor of the ISLT, has made a similar claim, insisting that the ISLT is “rooted in the fact that states lack inherent authority to regulate federal elections.” Instead, he continues, “their only power over such elections comes from the U.S. Constitution.”
This argument is inconsistent with Article I’s Legislative Vesting Clause (Article I, Section 1). That clause provides, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Simply put, if the federal Constitution vests “all legislative powers” in Article I in Congress, then the Elections Clause—which is part of Article I—cannot vest any legislative power in state legislatures. (The amicus brief of Charles Plambeck and Joni Walser makes a similar point.) Instead, when state legislatures regulate federal elections under the Elections Clause, they exercise state legislative power, vested by their state constitution, in service of the federal Constitution.
Justice Thomas recognized as much in his dissent in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), where he explained that the Elections Clause “does not delegate any authority to” state legislatures but “simply imposes a duty upon” them. That is why, as the Supreme Court has repeatedly affirmed, state legislatures must comply with their state constitutions when regulating congressional elections. See State of Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916); Smiley v. Holm, 285 U.S. 355 (1932); Rucho v. Common Cause, 139 S. Ct. 2484 (2019).
This reading of the Legislative Vesting Clause aligns with the Supreme Court’s treatment of the similar Judicial Vesting Clause (Article III, Section 1), which precludes state courts from exercising federal judicial power.
As a bit of background: Just as the Elections Clause tasks state legislatures with regulating federal elections, the Supremacy Clause (Article VI, Clause 2) tasks state courts with resolving federal questions. Indeed, the Supremacy Clause imposes on state courts “the coordinate authority and consequent responsibility to enforce the Supreme Law of the Land.” Howlett By and Through Howlett v. Rose, 496 U.S. 356, 369 n.16 (1990). If the Elections Clause created an “independent state legislature,” whereby state legislatures exercise federal legislative power when regulating federal elections, then we might expect the Supremacy Clause to create an “independent state judiciary,” whereby state courts exercise federal judicial power when resolving federal questions.
But state courts do not exercise federal judicial power. The Judicial Vesting Clause vests “[t]he judicial Power of the United States” in the federal courts, to the exclusion of state courts. As Michael Dorf has explained, “state courts do not exercise [federal judicial] power—even when deciding federal questions.” Rather, when state courts resolve federal cases, they do so “in the exercise of their ordinary jurisdiction.” Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 342 (1816). Thus, the Supreme Court has held, state courts must comply with justiciability principles derived from their state constitutions, not the federal Constitution, when they resolve federal questions. ASARCO v. Kadish, 490 U.S. 605, 617 (1989). Like state courts resolving federal questions, state legislatures regulating federal elections exercise state power—and therefore must comply with their state constitutions when doing so. (The amicus brief of Public Citizen makes a similar argument.)
To be sure, the Constitution also assigns tasks to state actors that are neither legislative nor judicial in nature. For example, Article V assigns state legislatures the task of ratifying constitutional amendments. This ratifying function, the Supreme Court has explained, is different from “the ordinary business of legislation.” Hawke v. Smith, 253 U.S 221, 229 (1920). In turn, as the Court has explained, “the power to ratify a proposed amendment to the federal Constitution has its source in the federal Constitution.” Id. at 230. As a result, the Court has held, a state legislature’s power to ratify constitutional amendments “transcends any limitations sought to be imposed by the people of a state.” Leser v. Garnett, 258 U.S. 130, 137 (1922).
But these Article V cases do not support the ISLT. Unlike federal ratification power under Article V, federal legislative power under Article I is expressly vested in a federal entity: Congress. So, there’s no way to construe state legislatures’ rule-making as a federal legislative power. Plus, the Court has already established that states’ rule-making for elections is legislative activity subject to state constitutional restraints.
The increased emphasis the Petitioners have placed on this argument suggests that they think it’s their surest way to salvage the ISLT after the twin bottom-side briefs and four dozen amicus briefs exposed significant problems with it. But they’ll have to keep looking for an out, because this idea of theirs isn’t it.