The Curious Failure to Cite to Rehnquist’s Bush v. Gore Concurrence and the Independent State Legislature Theory in 2004 Salazar Case; The Issue Was Clear to Justice Stevens’ Then-Clerk (and Now-CA Supreme Court Justice) Leondra Kruger

As the independent state legislature theory remains in limbo in Moore v. Harper, I’ve thought back on Chief Justice Rehnquist’s dissent from denial of cert in  Colorado General Assembly v. Salazar (2004) (a case that few other than Derek Muller and I have paid much attention to). As Derek recently explained:

The Colorado Supreme Court in 2003 found that the state constitution precluded the legislature from mid-decade redistricting. That was despite the fact that the 2002 congressional map was implemented by a state court because the Assembly had failed to pass a congressional redistricting plan in time. The legislature wanted a shot at drawing a map in 2003. No dice, said the Colorado Supreme Court. The assembly appealed, citing its power to as the “legislature” to determine the manner of elections under the Elections Clause.

The Court denied cert in 2004. Chief Justice Rehnquist, joined by Justices Scalia and Thomas, dissented, relying on a version of his concurring opinion in Bush v. Gore (without citing it, opting, instead, to cite McPherson v. Blacker (1892) with a “cf.” signal): “Legislature” must mean something under Article I of the Constitution, and here the institutional legislature has been cut out of the process.

I have always been curious about the failure of the Chief Justice to cite his own Bush v. Gore concurrence which was directly on point. Surely it must have occurred to him to do so and he decided not to do so because the case was so controversial at the time.

I took a look this week at the (very thin) Salazar file in the newly released papers of Justice Stevens. Nothing there directly sheds light on Rehnquist’s citation decision, but the issue was flagged by then-clerk and now California Supreme Court Justice Leondra Kruger in her memo to Justice Stevens recommending a cert denial in the case:

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