“After the Oral Argument in Moore v. Harper”

Michael Weingartner & Carolyn Shapiro have posted this draft on SSRN (forthcoming, U. Toledo L. Rev.). here is the abstract:

The debate over the so-called independent state legislature theory (“ISLT”) is evolving. Some proponents of the theory have proposed a maximalist version of the theory, which posits that state legislatures exercise plenary authority over both congressional and presidential elections, unconstrained by state constitutions. But some applications of that approach have already been rejected by the Supreme Court. Longstanding precedent provides, for example, that a state constitution’s lawmaking procedures apply to laws governing federal elections, even when those procedures incorporate actors besides the legislature. As a result, when the Supreme Court heard oral argument in Moore v. Harper, a pending case that addresses the ISLT, much of the discussion focused on whether those precedents could be distinguished in a way that allowed for a narrower form of the ISLT.

Although most of the Justices seemed skeptical about the maximalist version of the ISLT, and the petitioners themselves did not ask the Court to overrule its precedents, many Justices also seemed reluctant to fully reject the ISLT. Such a rejection might eliminate any possibility of federal court review of any state court decision reviewing, construing, or applying state laws governing federal elections where such decisions focus solely on the meaning of state statutes and state constitutional provisions. Even the respondents did not ask the Court to adopt that view. As a result, regardless of which party prevails in Moore, the door may well still be open for ISLT arguments in other cases.

This short article evaluates at least some of the versions of the ISLT discussed at oral argument, largely from the perspective of our previous writing about the ISLT, and we argue that there is little to no textual, historical, or doctrinal basis even for the more limited versions of the theory and that such an approach would be nearly as destabilizing to settled law, practice, and expectations, as the maximalist version. Finally, we argue that any residual federal court power of review is narrow, but is not non-existent, and arises from other provisions of the federal constitution, most notably the Due Process Clause. And a focus on the Due Process Clause requires a different kind of analysis than the various versions of the ISLT, one that is less disruptive and more focused on actual practice and the expectations of voters, campaigns, and candidates.

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