Recently, there has been a great deal written about the independent state legislature view – the view that the Constitution assigns to state legislatures (unconstrained by state constitutions) certain powers with respect to federal elections. I wrote about this a while back, and so I thought I would briefly discuss my prior post. My post should be thought of as a preliminary discussion, one that I am open to revising if I find some of the recent scholarship persuasive.
The post begins:
The Constitution’s frequent use of “state legislatures” requires two main questions to be answered. One question involves whether an entity other than the state legislature can take an action when the Constitution assigns that action to the state legislature. For example, the Constitution provides that “each State shall appoint, in such Manner as the Legislature thereof may direct,” the members of the electoral college. Does that provision allow the state Constitution to override the state legislature’s decision as to the manner of appointing the electors? And if it does, can the courts enforce that constitutional provision to the detriment of the state legislature?
A similar issue that arises here occurs when the state, either through its constitution or some other means, assigns a decision of the state legislature to another entity. For example, the Constitution provides that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Does this provision allow the state constitution or the voters through a referendum to assign redistricting decisions to an independent commission rather than the state legislature?
My short answer to these questions is that the United States Constitution prevents the state constitution or the voters from assigning any of these decisions to anyone other than the state legislature.
The second question raised by the state legislature provisions involves which entity makes a decision when the state legislature is assigned that task. Is the decision to be made by the state legislature proper – that is, both legislative houses but with no opportunity for the governor to veto it? Or is it to be made by the state legislature with opportunity for a gubernatorial veto? Sometimes the practice is for one (for example, state legislative ratification of constitutional amendments), at other times the practice is for the other (state legislative determination of the times, places and manner of holding congressional elections). Is the practice correct, and if so, why? Here, I argue that the Constitution draws a distinction between tasks for the state legislature that involve enacting laws and tasks that do not.
The remainder of the post attempts to justify these conclusions on textual grounds. At certain points the issue can become tricky but I believe the answers I sketch are reasonable ones.
Posted at 8:00 AM