The Amar-Amar (Amars?) argument seems pretty obviously correct to me. The Constitution was using "legislature" as a synecdoche for the "state's democratic lawmaking process as prescribed by its constitution." We still do this to this day! We always say things like "Congress enacted the Affordable Care Act" when obviously Obama still needed to sign it and the Supreme Court could have struck it down if it wanted to (and almost did). For Alito et al. to buy into ISL would be the same mode of reasoning as interpreting Article VI Section 4's "The United States shall guarantee to every State in this Union a Republican Form of Government" as, well, you know.
Hah, I didn't realize this wasn't a Matt-post until I got to "my parents were born citizens of an independent India," at which point I was quite confused
Great post Milan. I had never heard of this and it's interesting, and definitely concerning, to learn of
My one bit of critical feedback (as is tradition now, I suppose?): I think it would have been helpful to have caption on the image of election results that illustrates gerrymandering, since it takes reading through a clump of numbers and making an inference to understand the point. A brief something pointing out that Republicans have lost the popular votes but won more seats in each would have made it an easier read
I think you made a logical jump in the “what would ISL mean in practice” section that isn’t necessarily justified by the facts at hand — that this case would allow state legislatures to appoint alternate electors in contravention of election results. It seems to me that the version of ISL currently in front of SCOTUS deals entirely with the first constitutional clause which grants legislatures the power over the manner in which elections are held and that were a legislature to actually go down the alternate electors path it would necessitate another legal case regarding the electors clause. I hope SCOTUS stops the madness now but if it doesn’t I think there’s some hope Roberts/Kavanaugh/ACB would draw the line at directly overturning Election results.
So, in general, this is another great post, Milan. But I think there's one important inaccuracy here. Even if the Supreme Court adopts ISL theory, state legislatures cannot re-assign electoral votes after the election.
Like I said, I think this is important. ISL theory is misguided for all the reasons you state. And, it would have serious negative consequences. For example, the WI legislature could implement a bunch of new laws that undermine the election prior to Election Day, and neither the governor nor state courts could do anything about it (although that depends on what version of ISL theory the court adopts!).
BUT, re-assigning electoral votes after the election is not within the power of state legislatures, even if ISL theory is adopted.
I was not expecting a full blown article today, and now I'm about to take off for the airport, so all I'll say is that I 100% agree with Milan, and we should be very, very scared about what SCOTUS could possibly unleash with ISL.
I don't see how the state's SC's actions in these situations is acceptable either. They threw out the legislature's maps, which I can accept. But appointing a special master and having them create a map instead seems like a usurpation of the normal legislative power.
It could be even worse than Matt says. Under ISL, what's to stop the Wisconsin legislature from passing a law that says the state's electoral votes go to the presidential candidate that wins the most congressional districts? What's to stop every other GOP-controlled legislature from doing the same? What's to stop them from doing the same thing for Senate races?
We could, very quickly, find ourselves a Russia-like one-party state, if we are not careful.
I am myself guilty of referring to the ISL "doctrine" in a loose and sloppy way but it's a pretty indeterminate term, and not helpful to the extent it becomes a substitute for carefully understanding the issues in each case. I think this article falls prey to that, as it both overstates and mistates what is at issue in Moore v. Harper.
What the NC legislature is arguing is that the substantive rules regarding time, place and manner of elections for federal Representatives and Senators are solely a matter of federal law, that may only be established by Congress and, to the extent Congress allows, the legislatures of each State, each acting within the procedural constraints of their respective constitutions (as opposed to state courts, in that case). The NC petitioners are NOT arguing that state legislatures are exempt from normal procedural rules established by their constitutions, such as majority bicameral vote or a gubernatorial approval, as they say in their brief:
"Petitioners thus do not dispute that each State’s constitution may properly govern such procedural questions as whether a bicameral vote is required to enact a law, whether the legislation is subject to gubernatorial veto, see Smiley, 285 U.S. at 367–68, and, perhaps in the extreme case, whether some lawmaking entity other than the ordinary institutional legislature has authority to legislate on the subject under “the State’s prescriptions for lawmaking,” Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 576 U.S. 787, 808 (2015). But it does not follow that state constitutions may also impose substantive limits, enforceable by state courts outside of “the method which the state has prescribed for legislative enactment[ ],” Smiley, 285 U.S. at 367, on the legislature’s exercise of the power assigned to it by the Elections Clause."
That's it. If a state passes redistricting laws or something for how federal congressional elections are conducted that are substantively objectionable, they are saying the remedy is for Congress to preempt those laws, not for state judges to take it upon themselves to impose different substantive standards. That may or may be a good idea, but it also does not seem like something to get bent out of shape about if the Supreme Court does rule in favor of the NC legislative. We are already in need of Congress passing better federal districting laws, including on gerrymandering, and a decision by the Court in favor of NC could light a fire under Congress to get moving on that.
I have seen much hand wringing about the ISLT and it does seem like a serious problem. On the other hand I am uncomfortable with the idea of a court deciding it is now going to be a partisan redistricting commission because the legislature couldn’t do it.
I feel like this question could be answered without actually going into ISLT and the remedy of “If you can’t draw constitutional maps you will use the maps from the last census and just not seat the final rep” seems like a more reasonable remedy that would get the legislature to actually do a good job or risk missing out on their new representative.
Great piece, Milan. What's your take on the Electoral Count Reform Act being considered by Congress? Would it provide any protection against the nightmare Wisconsin scenario you describe? (Also, is it likely to make it to Biden's desk?).
I've been worried about this case for a while now, and I have zero faith the GOP Supreme Court will be able to resist the urge to render a decision that helps Republicans.
One possibility that you did not touch on is that the court could hold that the power cannot be stripped from the legislature, either by ballot measure or by the state courts, but that state legislatures are still constrained in this duty by state constitutions as interpreted by the state courts. So the finding in this case would be that the state court has the authority to strike down a map as violating the state constitution, but erred by drawing its own map.
ISL is as dangerous as a bicameral majority in the tipping point state, which may well be Wisconsin or Georgia. Is there any evidence that bicameral majorities in either of these states are willing to overturn an election that has already occurred? Trump tried to get this to happen and his efforts never came up for a vote in a single chamber of any of the contested states. No state even called a special session. I cannot imagine a less popular position than “I’m overturning an election my party lost because reasons.”. Many legislators would lose their seats for taking such a vote and some might lose their lives. I wouldn’t be surprised if a significant number of legislators, given a chance to steal the presidency, embraced ISL, I just think a bicameral majority in Wisconsin would be a stretch.
Great post Milan! I think while most readers of this column are probably aware of it, the average American has no idea how closely our democracy teeters on the edge. Between the possibilities of ISL state legislatures sending fake GOP electors, and a Republican congress refusing to confirm real Democratic electors, 2024 could be a very messy election indeed…
There's a lot of good content in here and you did well to talk about the legal theory as well as its implications.
I wanted to comment on how much the style of this piece struck me as a school essay. There's something that I find very easy to read about Matt's writing. I think it's conversational in tone, and so while it doesn't shy away from technical detail, it feels like someone is talking to me much more than this did.
Some of that is the rigid structure:
"The first is Article I, Section 4, Clause 1.....The second section is Article II, Section 1, Clause 2".
"First, the professors object...The second argument is that ISL.....Finally, the Amars argue that ISL"
Some of that is the very straightforward calls to action:
"The Court ought to firmly reject it."
"I would respectfully urge her to vote against ISL"
I don't know exactly how I would make those things better. I'm not a great writer myself! But I thought I'd point it out as constructive criticism on how it felt different reading it than a usual Matt post. It might help to go through Matt's post and notice how he does those things. I'd expect he breaks up different points with section headings. Or uses softer language when he wants a call to action that makes the reader feel like they are being prodded to think more about it rather than being told to do it. People really don't like feeling like they are being told what to do. As an example, from the teacher's post last week, "Long story short, I think there’s a decently strong argument that we are underinvesting in hiring teachers."
I want to make it clear that you shouldn't feel bad for not quite being Matt's caliber of a writer yet. He's really good at it. You probably will get a lot better if you keep doing it and working at it over time.
The Amar-Amar (Amars?) argument seems pretty obviously correct to me. The Constitution was using "legislature" as a synecdoche for the "state's democratic lawmaking process as prescribed by its constitution." We still do this to this day! We always say things like "Congress enacted the Affordable Care Act" when obviously Obama still needed to sign it and the Supreme Court could have struck it down if it wanted to (and almost did). For Alito et al. to buy into ISL would be the same mode of reasoning as interpreting Article VI Section 4's "The United States shall guarantee to every State in this Union a Republican Form of Government" as, well, you know.
Hah, I didn't realize this wasn't a Matt-post until I got to "my parents were born citizens of an independent India," at which point I was quite confused
Great post Milan. I had never heard of this and it's interesting, and definitely concerning, to learn of
My one bit of critical feedback (as is tradition now, I suppose?): I think it would have been helpful to have caption on the image of election results that illustrates gerrymandering, since it takes reading through a clump of numbers and making an inference to understand the point. A brief something pointing out that Republicans have lost the popular votes but won more seats in each would have made it an easier read
I think you made a logical jump in the “what would ISL mean in practice” section that isn’t necessarily justified by the facts at hand — that this case would allow state legislatures to appoint alternate electors in contravention of election results. It seems to me that the version of ISL currently in front of SCOTUS deals entirely with the first constitutional clause which grants legislatures the power over the manner in which elections are held and that were a legislature to actually go down the alternate electors path it would necessitate another legal case regarding the electors clause. I hope SCOTUS stops the madness now but if it doesn’t I think there’s some hope Roberts/Kavanaugh/ACB would draw the line at directly overturning Election results.
So, in general, this is another great post, Milan. But I think there's one important inaccuracy here. Even if the Supreme Court adopts ISL theory, state legislatures cannot re-assign electoral votes after the election.
Here's one election law professor talking about this: https://electionlawblog.org/?p=129026. And here's another: https://electionlawblog.org/?p=131215.
Like I said, I think this is important. ISL theory is misguided for all the reasons you state. And, it would have serious negative consequences. For example, the WI legislature could implement a bunch of new laws that undermine the election prior to Election Day, and neither the governor nor state courts could do anything about it (although that depends on what version of ISL theory the court adopts!).
BUT, re-assigning electoral votes after the election is not within the power of state legislatures, even if ISL theory is adopted.
In fairness to you, Milan, a number of commentators, including a distinguished federal court judge (https://www.cnn.com/2022/04/27/opinions/gop-blueprint-to-steal-the-2024-election-luttig/index.html) has made this same mistake. Impressed by your work overall; keep it up!
I was not expecting a full blown article today, and now I'm about to take off for the airport, so all I'll say is that I 100% agree with Milan, and we should be very, very scared about what SCOTUS could possibly unleash with ISL.
I don't see how the state's SC's actions in these situations is acceptable either. They threw out the legislature's maps, which I can accept. But appointing a special master and having them create a map instead seems like a usurpation of the normal legislative power.
It could be even worse than Matt says. Under ISL, what's to stop the Wisconsin legislature from passing a law that says the state's electoral votes go to the presidential candidate that wins the most congressional districts? What's to stop every other GOP-controlled legislature from doing the same? What's to stop them from doing the same thing for Senate races?
We could, very quickly, find ourselves a Russia-like one-party state, if we are not careful.
I am myself guilty of referring to the ISL "doctrine" in a loose and sloppy way but it's a pretty indeterminate term, and not helpful to the extent it becomes a substitute for carefully understanding the issues in each case. I think this article falls prey to that, as it both overstates and mistates what is at issue in Moore v. Harper.
What the NC legislature is arguing is that the substantive rules regarding time, place and manner of elections for federal Representatives and Senators are solely a matter of federal law, that may only be established by Congress and, to the extent Congress allows, the legislatures of each State, each acting within the procedural constraints of their respective constitutions (as opposed to state courts, in that case). The NC petitioners are NOT arguing that state legislatures are exempt from normal procedural rules established by their constitutions, such as majority bicameral vote or a gubernatorial approval, as they say in their brief:
"Petitioners thus do not dispute that each State’s constitution may properly govern such procedural questions as whether a bicameral vote is required to enact a law, whether the legislation is subject to gubernatorial veto, see Smiley, 285 U.S. at 367–68, and, perhaps in the extreme case, whether some lawmaking entity other than the ordinary institutional legislature has authority to legislate on the subject under “the State’s prescriptions for lawmaking,” Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 576 U.S. 787, 808 (2015). But it does not follow that state constitutions may also impose substantive limits, enforceable by state courts outside of “the method which the state has prescribed for legislative enactment[ ],” Smiley, 285 U.S. at 367, on the legislature’s exercise of the power assigned to it by the Elections Clause."
That's it. If a state passes redistricting laws or something for how federal congressional elections are conducted that are substantively objectionable, they are saying the remedy is for Congress to preempt those laws, not for state judges to take it upon themselves to impose different substantive standards. That may or may be a good idea, but it also does not seem like something to get bent out of shape about if the Supreme Court does rule in favor of the NC legislative. We are already in need of Congress passing better federal districting laws, including on gerrymandering, and a decision by the Court in favor of NC could light a fire under Congress to get moving on that.
I have seen much hand wringing about the ISLT and it does seem like a serious problem. On the other hand I am uncomfortable with the idea of a court deciding it is now going to be a partisan redistricting commission because the legislature couldn’t do it.
I feel like this question could be answered without actually going into ISLT and the remedy of “If you can’t draw constitutional maps you will use the maps from the last census and just not seat the final rep” seems like a more reasonable remedy that would get the legislature to actually do a good job or risk missing out on their new representative.
Great piece, Milan. What's your take on the Electoral Count Reform Act being considered by Congress? Would it provide any protection against the nightmare Wisconsin scenario you describe? (Also, is it likely to make it to Biden's desk?).
I've been worried about this case for a while now, and I have zero faith the GOP Supreme Court will be able to resist the urge to render a decision that helps Republicans.
One possibility that you did not touch on is that the court could hold that the power cannot be stripped from the legislature, either by ballot measure or by the state courts, but that state legislatures are still constrained in this duty by state constitutions as interpreted by the state courts. So the finding in this case would be that the state court has the authority to strike down a map as violating the state constitution, but erred by drawing its own map.
Milan, I recommend Akhil Reed Amar's Con Law class if he's still teaching it.
ISL is as dangerous as a bicameral majority in the tipping point state, which may well be Wisconsin or Georgia. Is there any evidence that bicameral majorities in either of these states are willing to overturn an election that has already occurred? Trump tried to get this to happen and his efforts never came up for a vote in a single chamber of any of the contested states. No state even called a special session. I cannot imagine a less popular position than “I’m overturning an election my party lost because reasons.”. Many legislators would lose their seats for taking such a vote and some might lose their lives. I wouldn’t be surprised if a significant number of legislators, given a chance to steal the presidency, embraced ISL, I just think a bicameral majority in Wisconsin would be a stretch.
Great post Milan! I think while most readers of this column are probably aware of it, the average American has no idea how closely our democracy teeters on the edge. Between the possibilities of ISL state legislatures sending fake GOP electors, and a Republican congress refusing to confirm real Democratic electors, 2024 could be a very messy election indeed…
What a gloomy way to begin my Saturday morning!
There's a lot of good content in here and you did well to talk about the legal theory as well as its implications.
I wanted to comment on how much the style of this piece struck me as a school essay. There's something that I find very easy to read about Matt's writing. I think it's conversational in tone, and so while it doesn't shy away from technical detail, it feels like someone is talking to me much more than this did.
Some of that is the rigid structure:
"The first is Article I, Section 4, Clause 1.....The second section is Article II, Section 1, Clause 2".
"First, the professors object...The second argument is that ISL.....Finally, the Amars argue that ISL"
Some of that is the very straightforward calls to action:
"The Court ought to firmly reject it."
"I would respectfully urge her to vote against ISL"
I don't know exactly how I would make those things better. I'm not a great writer myself! But I thought I'd point it out as constructive criticism on how it felt different reading it than a usual Matt post. It might help to go through Matt's post and notice how he does those things. I'd expect he breaks up different points with section headings. Or uses softer language when he wants a call to action that makes the reader feel like they are being prodded to think more about it rather than being told to do it. People really don't like feeling like they are being told what to do. As an example, from the teacher's post last week, "Long story short, I think there’s a decently strong argument that we are underinvesting in hiring teachers."
I want to make it clear that you shouldn't feel bad for not quite being Matt's caliber of a writer yet. He's really good at it. You probably will get a lot better if you keep doing it and working at it over time.