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.
I'm just saying they're wrong is all. Either because of motivated reasoning or intentional dishonesty, they're exploiting a misunderstanding to achieve an unintended result.
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.
This is my understanding too. ISL is dumb, but not even the most expansive reading would allow a state to appoint new electors in defiance of an election that has already been carried out as they prescribed.
The case going before SCOTUS seems like it's going to be narrowly about whether the state court can impose a map it drew itself when it finds the legislative map unconstitutional.
Were you around in the year 2000? That's probably how it would transpire. An election would be "disputed" rather than overturned. And thus the Republican legislature in question wouldn't officially be "overturning" the will of the voters. They'd merely be clarifying or resolving a dispute. And there's not a thing the state courts could do about it if we get a GOP-friendly decision on the ISL case.
Mind you, this scenario might not permit *egregiously* brazen elections nullification (say, the Democrat prevails by nine points). But it leaves plenty of room for shenanigans if the election is close enough to be plausibly sold as "disputed" to the only audience that really matters (partisan Republican Supreme Court justices).
There's lots of ways legislatures can put a thumb on the scales, by appointing the people who decide which votes are properly cast and such, but once they've said "the electors go the the person who recieves the most votes" or some such they're stuck with it. They're bound by due process and whatever legislation on the books to count the votes and award the electors as prescribed. They can try to dispute the validity of certain votes and such, there's surely lots of room for shenanigans, but they absolutely cannot say "we think this count is wrong so we're going to ignore it and give the electors to the other guy". The outcome is the outcome. Now FL2000 is a case where shenanigans were maybe decisive even with due process, but even then it's not like ISL would have let the legislature just step in and tell the court Bush won.
>They're bound by due process and whatever legislation on the books to count the votes and award the electors as prescribed.<
After an ISL-friendly decision, state laws, amendments and court precedents in conflict with this novel interpretation of the US constitution would be invalid. And again, I'm not referring to ouvert elections nullification on the part of a legislature, but a vote to determine which slate of electors is valid if the popular vote were muddied or being litigated. This is indeed what happened in Florida 22 years ago.
Moreover, a legislature could clarify state law with respect to how disputed elections are decided, before the general election, if it deemed this necessary (it's far from clear a governor's veto at that point would even be operative: the idea that the state legislature is independent of and unbound by other actors at the state level is the very heart of this exotic theory).
A state legislature would obviously remain bound by the United States Constitution. But conveniently for Republicans, the final arbiter on interpreting that particular documents is sympathetic to them.
Yeah, not knowing much about the case, there seems like there would be a huge difference between “can the state SC reject a map as unconstitutional?” and “can the state SC draw their own replacement map?”
That's really cold comfort though. State legislators can read polls. This just means that if the Republican nominee is losing in the polls, then a Republican state legislature could act on say November 1.
Yeah, but they can do that now without the ISLT. If the legislature just passes a law saying on Nov 2 we, and not the people, will choose the electors, there’s nothing anyone (except, in principle, the voters) could do about it.
Now if the state had a constitutional provision that required that electors be popularly elected, then you’d need ISLT to override that. And some ISLT theories would say that the legislature could do so even over a governor’s veto (e.g., if GOP has a majority but not a supermajority, it could pass the statute, and ISLT would ignore the governor’s veto). But assuming you either had a friendly governor or enough legislators to override a veto, I think it’s pretty uncontroversial to say that legislators have the power to do this.
No, they can't do that now without ISL because there's a Democratic governor in one of the necessary tipping point states, Wisconsin, who would veto it. If Evers, Hobbs, Abrams, Whitmer, and Shapiro all lose this November, then you'd be right.
You'd like to think such a move would royally piss off their own voters, but, most state legislators likely to vote for such a change probably don't have to worry much about any action perceived as helping DeSantis or Trump prevail. Indeed, voting against a measure to help the Republican nominee is what would get them in political hot water.
I agree. The Constitution still says that "The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States." So unless the legislature gins up a controversy and disenfranchises the citizens *on or before Election Day,* that clause could still prevent a post-hoc reallocation of electors by a legislature, even if you adopt a very strong reading of ISLT.
Now, as we've all seen in the last few years, FedSoc judges don't see themselves as bound by legal niceties such as the Constitution's plain text. And there's probably some way to at least write down words purporting to thread the needle (saying ISLT also gives the legislature plenary power to adjudicate disputes on Election Day elections, for example). But it's a somewhat different issue.
Which isn't to say that ISLT is good! Even if it doesn't necessarily lead to true legislative coups d'état like that, it still means that there is no way for voters to reign in gerrymandering or vote suppression, regulate campaign finance, etc. at the state level, because it is always open to second-guessing by crooked federal judges. But ISLT is part of the mainstream Republican program of rigging the electorate, not the full MAGA program of overthrowing adverse elections after they've happened.
Is Election Day (November) actually "the Time of chusing the Electors" and the day the Electoral College meets and casts its vote (January) "the Day on which they shall give their Votes"?
So ISLT definitely could support choosing a different set of electors after one set had been chosen by an election.
The ex post facto clause should (hopefully) prevent state legislatures from appointing their own electors *after* an election has occurred, regardless how much authority they would have from ISL at the time.
Note: This would not prevent state legislatures declaring *prior* to a presidential election that they will solely appoint electors, because they can currently do that if they want to.
It's been 20+ years since my constitutional law class, but I'm 90%+ certain that the ex post facto clause only concerns criminal law. I believe the constraint on changing how electors are to be chosen after the results of an election are known would be Article II, Section 1, believe, because Congress controls the time, etc. of choosing electors and there is a federal law (3 U.S.C. § 5) that requires states to chose electors in conformity with state laws enacted prior to election day.
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.
"How to interpret state constitutions" is a power state courts should have
"Writing state law" is not a power state courts should have
If the state law says that maps should be drawn by body X, if body X draws an unconstitutional map, that map should be thrown out and body X instructed to try again. The court doesn't and shouldn't have the power to conjure up body Y out of thin air.
I don't disagree - though I will point out that the question before the court is about the US constitution.
I think a broader question is what you think of judicial supremacy:
- first do you think they should be the final arbitrators of what is constitutional and what is not?
- second, if you think they can strike down an unconstitutional map, what makes it constitutional for the courts to take the next step and appoint a special master to create a new map when the law says that should be done by the legislature?
Finally, are we applying a reasonably consistent approach to power so that whatever power we are granting this SC, we would also feel applies to other state SC's who are likely to rule in ways we don't like?
My answer is that I think the court is likely the best place to decide constitutionality (in the short run!), and therefore think its reasonable for the court to strike down a map that violates the constitution (whether state or federal). However, I don't grant that power is sufficient to allow the court to then create a new map without it ever going through the legislative process.
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.
What's really scary is that if Evers loses this November, then Wisconsin can make all those changes *without* the ISL doctrine, and (unlike ISL) that authority would actually be based a *correct* interpretation of the Constitution.
Yes, there is now and never has been anything to prohibit a state from passing a law like that. Public opinion is the reason state legislatures started using popular elections to choose electors in the first place, and that's the only thing preventing them from going back to the original way of selecting electors directly without elections. And as the court held in Smiley gubernatorial approval is required in any case, whether or not someone uses the label "ISL" to describe the ruling.
A lot of the fearmongering being stoked about the so-called ISL theory is doing a disservice because it's irresponsible speculating about and normalizing of wild scenarios by journalists and commentators who don't have a good understanding of what current law allows or what the actual issues are in cases currently being litigated, so it's misinforming rather than informing the public, and which accelerates rather than slows erosion of democratic and rule of law norms. For example if the Court rules for NC legislature in Moore I expect there will be hysteria among lefty types even though the actual issue in the case is pretty niche and unlikely to move the needle much in any direction, and few will emphasize the most important point, that the whole thing can be superseded by Congress simply passing a better law.
And Ian Millhiser. As far as I can tell, neither one of them contributes anything of value to the public discourse. Just an endless stream of outrage that judges are not following to a tee the latest Democratic Party line, whatever that may be, and chicken little hysteria and agitated doomerism. No sign of any self-aware ability to see the other side of an argument or even imagine that someone might reasonably disagree.
I'm not as familiar with Millhiser, but Stern genuinely outrages me -- I've caught him a number of times outright misrepresenting holdings of cases. (A particular favorite of his is to describe some ruling as "rolling back" or "reversing" some right, but if you actually track down the opinion, it turns out that the court just didn't *extend* the law in the manner Stern thinks it should be.)
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.
There is no need to “light a fire under Congress” to do that—Democrats have already passed such a bill in the house and would jump at the chance to make it into law it if they could find a way to get it past the filibuster. Republicans are strongly opposed because they have the advantage in a majority of state legislatures and don’e want to give it up.
We're coming up on our Quarter -Millenial anniversary, and Congress has yet to pass a federal anti-gerrymandering law. I'd say that means it needs a fire lit under it.
That's impossible, only the states can draw districts. As you note, the anti-gerrymandering law can only pass if Democrats hold the house and gain enough seats in the Senate to end the filibuster. It's not a matter of anyone "lighting a fire" under Congress, it's a matter of getting a Democratic majority.
So the procedural requirements of the state constitution constrain the state legislature, but the substantive requirements of the state constitution do not. And redistricting is substantive rather than procedural? That is a weird argument. I'm not seeing the textual basis for that.
The argument is that if it's a regulation of the "Times, Places and Manner of holding Elections for Senators and Representatives" -- language straight from the text of the Constitution -- such that it would be within the power of Congress to regulate under the Elections Clause, then it's a matter of federal law, and only state legislatures -- not other state bodies such as state supreme courts -- may establish such regulations. But in so doing, state legislatures must of course abide by the normal procedural rules in that state for how the legislature normally enacts laws, including, for example, being subject to the signature or veto if the governor.
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.
I think the more obvious solution is for the none of a state's congressional reps to be seated until a "legitimate" map approved by legislature, governor and state SC is adopted.
Doubt that any of the parties in the state are going to risk their entire congressional representation over a seat or two.
This gets into the question of whether congressional reps really represent geographic areas or political parties. If all the real power lies with the House speaker, and the congressional reps are effectively just "electors" to determine the House speaker, than whichever side controls the minority party in the state has no reason to approve anything. If you can deprive your side of 20 "electors", but the other side of 30, the math says you come out ahead.
I think that the public backlash would be incredibly severe should a state not be able to send its reps to the congress. Which is why I think it would lead to compromise.
I'm definitely not sure, but unseating an entire state's congressional delegation sounds more like the sort of thing that needs to be spelled out rather than using a map that is in contention.
At this point is that there is not "one" map in contention. There are at least two maps - the one the legislature passed and the governor signed and one that the courts have proposed through a special master. In this dispute between the two branches, which one is chosen?
My solution is that if the branches cannot agree, none are chosen. If you would say that one should be chosen - who gets to decide which one?
I don’t see how the problem of a gerrymandered map would be resolved by by “one rep”—that seems to assume a 50-50 partisan split? Or that the gerrymander is only decisive in one or two districts? If the gerrymander gives them 10 or 20 additional seats, losing one would hardly matter.
Well it’s not like Congress (being a federal thing) would seat the extra representative and the remedy there would be in federal courts if they tried. I assume either Congress or a federal court could just pick a seat at random to deny for a similar effect.
Not a lawyer, but I've always heard that if your legal theory leads to an absurd result, it's not a good theory. Draw straws to see which elected members of Congress get to serve would seem to qualify. Not to mention that population movement means the old districts are no longer of equal size.
This is not about a state legislature choosing its own voters. This is about who within a state, in the absence of preemptive laws by Congress, should set rules and maps for the election of members of Congress -- the legislature or the state supreme court?
Oh for sure. But the Supreme Court in NC is also a partisan entity (see in the piece that they voted on partisan lines). I have no doubt that the map the court produced is aesthetically better I just don’t want courts in the business of districting either
This is a bad argument against gerrymandering. There are still elections and the legislature can still lose them if they piss off a very small slice of their own coalition badly enough. State-level gerrymanders are stable because American politics is very demographically predictable and because neither party actually does anything outside the Overton window.
There's a huge difference between "the Wisconsin state legislature will always win and can do whatever it wants" and "the Wisconsin state legislature will win unless it does something that horrifies a small fraction of their coalition"
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.
I think it's a good bill but it's more about clarifying the process of counting the electoral votes, not how they are assigned. To the best of my understanding it would absolutely be an improvement on the status quo but it wouldn't completely solve the problem. To the last part of your question, it appears there are 10 GOP votes in the Senate for ECRA https://twitter.com/NewsWire_US/status/1565366912623730688?s=20&t=lxJmdOyZCqnFx5lCTYAoEw
The Electoral Count Reform Act is all about avoiding another Jan. 6 scenario through clarifying the role of Congress in counting electoral votes, so it may not resolve the issue of a state that legally decides to have electors chosen by the legislature rather than by the voters.
Congress cannot address the issue "of a state that legally decides to have electors chosen by the legislature" because that's a matter of the plain language of Article 2, and is indeed how every state (I believe?) chose the electors who elected George Washington. Any state that wishes to return to this method is free to do so, provided they make the change before the election. Congress can't stop them.
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.
I mean, when you look at the types of people who are winning GOP primaries these days and the fact that state legislators in gerrymandered seats are all but guaranteed re-election regardless of what they do, I think it becomes a bit more worrying. Not saying it's guaranteed to happen but there is a nonzero chance and that keeps me up at night.
Hard to have rigorous probability estimates based on a sample size of zero. My only pushback is the election deniers who win primaries get a lot of attention, but it’s hardly like a material number of the establishment stalwarts have been unseated.
My surmise is the ISL theory might come into play if things were as close as Florida was in 2000, where reasonable people could disagree on who won without drinking much koolaid.
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…
I remember thinking, back in January, 2021: there's no way the Democratic presidential candidate will be allowed to take office after a legitimate Electoral College victory if Republicans have control of both chambers in January of 2025. I still think this very likely is true.
So far, that's true. But, technically, the 17th amendment only says that senators are elected by the people. It doesn't actually say they have to be elected in a statewide vote.
In theory, a partisan legislature could conceivably pass a law to tweak the elections in a way that all but ensures their side's victory. For example, they could say that the winner of all statewide races goes to the winner of the most congressional districts, with the statewide vote total used only as a tie-breaker. Then, they can rely on the gerrymandered congressional districts, just like they do for House seats.
Of course, such a law would absolutely be challenged in court. But, the Supreme Court is 6-3 Republican, and will find the slightest excuse to uphold any law that increases the political power of Republicans.
State lines were not drawn for the purpose of electing Republicans to the Senate, but based on current voting patterns and the fact that Wyoming gets the same number of Senators as California, those state lines play a very similar role as a strong-if-not-extreme GOP gerrymander: Democratic candidates need to get a lot more votes nationwide than Republican candidates just to have a fighting chance at 50-50 representation.
Sure, but it's the 2024-elected Congress that certifies the electors, and IIRC, the map that year looks bad for Democrats. But anyway no sense in pulling my hair out over things that are in the future and that I cannot control.
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.
Amar², please.
What's obvious to reasonable people like you if far from guaranteed to be recognized by our supremely politicized high court.
I'm just saying they're wrong is all. Either because of motivated reasoning or intentional dishonesty, they're exploiting a misunderstanding to achieve an unintended result.
Exactly.
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.
This is my understanding too. ISL is dumb, but not even the most expansive reading would allow a state to appoint new electors in defiance of an election that has already been carried out as they prescribed.
The case going before SCOTUS seems like it's going to be narrowly about whether the state court can impose a map it drew itself when it finds the legislative map unconstitutional.
Were you around in the year 2000? That's probably how it would transpire. An election would be "disputed" rather than overturned. And thus the Republican legislature in question wouldn't officially be "overturning" the will of the voters. They'd merely be clarifying or resolving a dispute. And there's not a thing the state courts could do about it if we get a GOP-friendly decision on the ISL case.
Mind you, this scenario might not permit *egregiously* brazen elections nullification (say, the Democrat prevails by nine points). But it leaves plenty of room for shenanigans if the election is close enough to be plausibly sold as "disputed" to the only audience that really matters (partisan Republican Supreme Court justices).
There's lots of ways legislatures can put a thumb on the scales, by appointing the people who decide which votes are properly cast and such, but once they've said "the electors go the the person who recieves the most votes" or some such they're stuck with it. They're bound by due process and whatever legislation on the books to count the votes and award the electors as prescribed. They can try to dispute the validity of certain votes and such, there's surely lots of room for shenanigans, but they absolutely cannot say "we think this count is wrong so we're going to ignore it and give the electors to the other guy". The outcome is the outcome. Now FL2000 is a case where shenanigans were maybe decisive even with due process, but even then it's not like ISL would have let the legislature just step in and tell the court Bush won.
>They're bound by due process and whatever legislation on the books to count the votes and award the electors as prescribed.<
After an ISL-friendly decision, state laws, amendments and court precedents in conflict with this novel interpretation of the US constitution would be invalid. And again, I'm not referring to ouvert elections nullification on the part of a legislature, but a vote to determine which slate of electors is valid if the popular vote were muddied or being litigated. This is indeed what happened in Florida 22 years ago.
Moreover, a legislature could clarify state law with respect to how disputed elections are decided, before the general election, if it deemed this necessary (it's far from clear a governor's veto at that point would even be operative: the idea that the state legislature is independent of and unbound by other actors at the state level is the very heart of this exotic theory).
A state legislature would obviously remain bound by the United States Constitution. But conveniently for Republicans, the final arbiter on interpreting that particular documents is sympathetic to them.
Yeah, not knowing much about the case, there seems like there would be a huge difference between “can the state SC reject a map as unconstitutional?” and “can the state SC draw their own replacement map?”
That's really cold comfort though. State legislators can read polls. This just means that if the Republican nominee is losing in the polls, then a Republican state legislature could act on say November 1.
Yeah, but they can do that now without the ISLT. If the legislature just passes a law saying on Nov 2 we, and not the people, will choose the electors, there’s nothing anyone (except, in principle, the voters) could do about it.
Now if the state had a constitutional provision that required that electors be popularly elected, then you’d need ISLT to override that. And some ISLT theories would say that the legislature could do so even over a governor’s veto (e.g., if GOP has a majority but not a supermajority, it could pass the statute, and ISLT would ignore the governor’s veto). But assuming you either had a friendly governor or enough legislators to override a veto, I think it’s pretty uncontroversial to say that legislators have the power to do this.
No, they can't do that now without ISL because there's a Democratic governor in one of the necessary tipping point states, Wisconsin, who would veto it. If Evers, Hobbs, Abrams, Whitmer, and Shapiro all lose this November, then you'd be right.
This.
You'd like to think such a move would royally piss off their own voters, but, most state legislators likely to vote for such a change probably don't have to worry much about any action perceived as helping DeSantis or Trump prevail. Indeed, voting against a measure to help the Republican nominee is what would get them in political hot water.
I agree. The Constitution still says that "The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States." So unless the legislature gins up a controversy and disenfranchises the citizens *on or before Election Day,* that clause could still prevent a post-hoc reallocation of electors by a legislature, even if you adopt a very strong reading of ISLT.
Now, as we've all seen in the last few years, FedSoc judges don't see themselves as bound by legal niceties such as the Constitution's plain text. And there's probably some way to at least write down words purporting to thread the needle (saying ISLT also gives the legislature plenary power to adjudicate disputes on Election Day elections, for example). But it's a somewhat different issue.
Which isn't to say that ISLT is good! Even if it doesn't necessarily lead to true legislative coups d'état like that, it still means that there is no way for voters to reign in gerrymandering or vote suppression, regulate campaign finance, etc. at the state level, because it is always open to second-guessing by crooked federal judges. But ISLT is part of the mainstream Republican program of rigging the electorate, not the full MAGA program of overthrowing adverse elections after they've happened.
Is Election Day (November) actually "the Time of chusing the Electors" and the day the Electoral College meets and casts its vote (January) "the Day on which they shall give their Votes"?
So ISLT definitely could support choosing a different set of electors after one set had been chosen by an election.
The ex post facto clause should (hopefully) prevent state legislatures from appointing their own electors *after* an election has occurred, regardless how much authority they would have from ISL at the time.
Note: This would not prevent state legislatures declaring *prior* to a presidential election that they will solely appoint electors, because they can currently do that if they want to.
It's been 20+ years since my constitutional law class, but I'm 90%+ certain that the ex post facto clause only concerns criminal law. I believe the constraint on changing how electors are to be chosen after the results of an election are known would be Article II, Section 1, believe, because Congress controls the time, etc. of choosing electors and there is a federal law (3 U.S.C. § 5) that requires states to chose electors in conformity with state laws enacted prior to election day.
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.
Final say on how the interpret state constitutions (including anti-gerrymandering provisions) should rest with state courts, not federal ones.
"How to interpret state constitutions" is a power state courts should have
"Writing state law" is not a power state courts should have
If the state law says that maps should be drawn by body X, if body X draws an unconstitutional map, that map should be thrown out and body X instructed to try again. The court doesn't and shouldn't have the power to conjure up body Y out of thin air.
I don't disagree - though I will point out that the question before the court is about the US constitution.
I think a broader question is what you think of judicial supremacy:
- first do you think they should be the final arbitrators of what is constitutional and what is not?
- second, if you think they can strike down an unconstitutional map, what makes it constitutional for the courts to take the next step and appoint a special master to create a new map when the law says that should be done by the legislature?
Finally, are we applying a reasonably consistent approach to power so that whatever power we are granting this SC, we would also feel applies to other state SC's who are likely to rule in ways we don't like?
My answer is that I think the court is likely the best place to decide constitutionality (in the short run!), and therefore think its reasonable for the court to strike down a map that violates the constitution (whether state or federal). However, I don't grant that power is sufficient to allow the court to then create a new map without it ever going through the legislative process.
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.
Not Matt, but yes ISL is bad.
What's really scary is that if Evers loses this November, then Wisconsin can make all those changes *without* the ISL doctrine, and (unlike ISL) that authority would actually be based a *correct* interpretation of the Constitution.
Yes, there is now and never has been anything to prohibit a state from passing a law like that. Public opinion is the reason state legislatures started using popular elections to choose electors in the first place, and that's the only thing preventing them from going back to the original way of selecting electors directly without elections. And as the court held in Smiley gubernatorial approval is required in any case, whether or not someone uses the label "ISL" to describe the ruling.
A lot of the fearmongering being stoked about the so-called ISL theory is doing a disservice because it's irresponsible speculating about and normalizing of wild scenarios by journalists and commentators who don't have a good understanding of what current law allows or what the actual issues are in cases currently being litigated, so it's misinforming rather than informing the public, and which accelerates rather than slows erosion of democratic and rule of law norms. For example if the Court rules for NC legislature in Moore I expect there will be hysteria among lefty types even though the actual issue in the case is pretty niche and unlikely to move the needle much in any direction, and few will emphasize the most important point, that the whole thing can be superseded by Congress simply passing a better law.
I see you're familiar with the "legal" writings of Mark Joseph Stern!
And Ian Millhiser. As far as I can tell, neither one of them contributes anything of value to the public discourse. Just an endless stream of outrage that judges are not following to a tee the latest Democratic Party line, whatever that may be, and chicken little hysteria and agitated doomerism. No sign of any self-aware ability to see the other side of an argument or even imagine that someone might reasonably disagree.
I'm not as familiar with Millhiser, but Stern genuinely outrages me -- I've caught him a number of times outright misrepresenting holdings of cases. (A particular favorite of his is to describe some ruling as "rolling back" or "reversing" some right, but if you actually track down the opinion, it turns out that the court just didn't *extend* the law in the manner Stern thinks it should be.)
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.
There is no need to “light a fire under Congress” to do that—Democrats have already passed such a bill in the house and would jump at the chance to make it into law it if they could find a way to get it past the filibuster. Republicans are strongly opposed because they have the advantage in a majority of state legislatures and don’e want to give it up.
We're coming up on our Quarter -Millenial anniversary, and Congress has yet to pass a federal anti-gerrymandering law. I'd say that means it needs a fire lit under it.
That's impossible, only the states can draw districts. As you note, the anti-gerrymandering law can only pass if Democrats hold the house and gain enough seats in the Senate to end the filibuster. It's not a matter of anyone "lighting a fire" under Congress, it's a matter of getting a Democratic majority.
So the procedural requirements of the state constitution constrain the state legislature, but the substantive requirements of the state constitution do not. And redistricting is substantive rather than procedural? That is a weird argument. I'm not seeing the textual basis for that.
The argument is that if it's a regulation of the "Times, Places and Manner of holding Elections for Senators and Representatives" -- language straight from the text of the Constitution -- such that it would be within the power of Congress to regulate under the Elections Clause, then it's a matter of federal law, and only state legislatures -- not other state bodies such as state supreme courts -- may establish such regulations. But in so doing, state legislatures must of course abide by the normal procedural rules in that state for how the legislature normally enacts laws, including, for example, being subject to the signature or veto if the governor.
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.
I think the more obvious solution is for the none of a state's congressional reps to be seated until a "legitimate" map approved by legislature, governor and state SC is adopted.
Doubt that any of the parties in the state are going to risk their entire congressional representation over a seat or two.
This gets into the question of whether congressional reps really represent geographic areas or political parties. If all the real power lies with the House speaker, and the congressional reps are effectively just "electors" to determine the House speaker, than whichever side controls the minority party in the state has no reason to approve anything. If you can deprive your side of 20 "electors", but the other side of 30, the math says you come out ahead.
I think that the public backlash would be incredibly severe should a state not be able to send its reps to the congress. Which is why I think it would lead to compromise.
That does sound like the sort of penalty that should have been explicitly spelled out in law or constitutions though.
I'm not sure what current remedy is spelled out in law, are you?
If there is not currently one, why would this need to be spelled out more than what is currently being made up?
I'm definitely not sure, but unseating an entire state's congressional delegation sounds more like the sort of thing that needs to be spelled out rather than using a map that is in contention.
At this point is that there is not "one" map in contention. There are at least two maps - the one the legislature passed and the governor signed and one that the courts have proposed through a special master. In this dispute between the two branches, which one is chosen?
My solution is that if the branches cannot agree, none are chosen. If you would say that one should be chosen - who gets to decide which one?
I don’t see how the problem of a gerrymandered map would be resolved by by “one rep”—that seems to assume a 50-50 partisan split? Or that the gerrymander is only decisive in one or two districts? If the gerrymander gives them 10 or 20 additional seats, losing one would hardly matter.
That remedy works if your state is growing but in a shrinking state would they keep the extra representative until they agree on new maps?
Well it’s not like Congress (being a federal thing) would seat the extra representative and the remedy there would be in federal courts if they tried. I assume either Congress or a federal court could just pick a seat at random to deny for a similar effect.
Not a lawyer, but I've always heard that if your legal theory leads to an absurd result, it's not a good theory. Draw straws to see which elected members of Congress get to serve would seem to qualify. Not to mention that population movement means the old districts are no longer of equal size.
This is not about a state legislature choosing its own voters. This is about who within a state, in the absence of preemptive laws by Congress, should set rules and maps for the election of members of Congress -- the legislature or the state supreme court?
Oh for sure. But the Supreme Court in NC is also a partisan entity (see in the piece that they voted on partisan lines). I have no doubt that the map the court produced is aesthetically better I just don’t want courts in the business of districting either
Edit s/Mario/map
This is a bad argument against gerrymandering. There are still elections and the legislature can still lose them if they piss off a very small slice of their own coalition badly enough. State-level gerrymanders are stable because American politics is very demographically predictable and because neither party actually does anything outside the Overton window.
There's a huge difference between "the Wisconsin state legislature will always win and can do whatever it wants" and "the Wisconsin state legislature will win unless it does something that horrifies a small fraction of their coalition"
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.
I think it's a good bill but it's more about clarifying the process of counting the electoral votes, not how they are assigned. To the best of my understanding it would absolutely be an improvement on the status quo but it wouldn't completely solve the problem. To the last part of your question, it appears there are 10 GOP votes in the Senate for ECRA https://twitter.com/NewsWire_US/status/1565366912623730688?s=20&t=lxJmdOyZCqnFx5lCTYAoEw
The Electoral Count Reform Act is all about avoiding another Jan. 6 scenario through clarifying the role of Congress in counting electoral votes, so it may not resolve the issue of a state that legally decides to have electors chosen by the legislature rather than by the voters.
Congress cannot address the issue "of a state that legally decides to have electors chosen by the legislature" because that's a matter of the plain language of Article 2, and is indeed how every state (I believe?) chose the electors who elected George Washington. Any state that wishes to return to this method is free to do so, provided they make the change before the election. Congress can't stop them.
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.
It's on the list for sure
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.
I mean, when you look at the types of people who are winning GOP primaries these days and the fact that state legislators in gerrymandered seats are all but guaranteed re-election regardless of what they do, I think it becomes a bit more worrying. Not saying it's guaranteed to happen but there is a nonzero chance and that keeps me up at night.
Hard to have rigorous probability estimates based on a sample size of zero. My only pushback is the election deniers who win primaries get a lot of attention, but it’s hardly like a material number of the establishment stalwarts have been unseated.
My surmise is the ISL theory might come into play if things were as close as Florida was in 2000, where reasonable people could disagree on who won without drinking much koolaid.
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…
I remember thinking, back in January, 2021: there's no way the Democratic presidential candidate will be allowed to take office after a legitimate Electoral College victory if Republicans have control of both chambers in January of 2025. I still think this very likely is true.
One good thing about the Senate is that it is free from the influence of gerrymandering, since all senators are elected statewide.
So far, that's true. But, technically, the 17th amendment only says that senators are elected by the people. It doesn't actually say they have to be elected in a statewide vote.
In theory, a partisan legislature could conceivably pass a law to tweak the elections in a way that all but ensures their side's victory. For example, they could say that the winner of all statewide races goes to the winner of the most congressional districts, with the statewide vote total used only as a tie-breaker. Then, they can rely on the gerrymandered congressional districts, just like they do for House seats.
Of course, such a law would absolutely be challenged in court. But, the Supreme Court is 6-3 Republican, and will find the slightest excuse to uphold any law that increases the political power of Republicans.
State lines were not drawn for the purpose of electing Republicans to the Senate, but based on current voting patterns and the fact that Wyoming gets the same number of Senators as California, those state lines play a very similar role as a strong-if-not-extreme GOP gerrymander: Democratic candidates need to get a lot more votes nationwide than Republican candidates just to have a fighting chance at 50-50 representation.
Sure, but it's the 2024-elected Congress that certifies the electors, and IIRC, the map that year looks bad for Democrats. But anyway no sense in pulling my hair out over things that are in the future and that I cannot control.
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.