Justice Kavanaugh and Chief Justice Roberts
Credit: Fred Schilling/Wikimedia Commons

UPDATE. Friday, November 20

On Friday, President Trump brought a delegation of Michigan legislators to the White House and apparently implored them to designate him as the recipient of the state’s 16 electoral votes—even though Joe Biden had carried the popular vote in the Great Lake state by 150,000 votes, or nearly 3 percent of the total. The legislators, in a statement apparently prepared ahead of time, seemed to blunt those hopes by saying that “we will follow the law and follow the normal process regarding Michigan’s electors, just as we have said throughout this election.” According to CNN, the White House is now considering a similar invitation to the Republican leaders of the Pennsylvania legislature (the race was much closer in Pennsylvania, but the margin was nonetheless convincing).

The scheme, apparently, is for state election boards to refuse to certify the state’s election returns on the grounds of unspecified “irregularities,” or “fraud,” at which point legislators will step in and simply anoint Trump. Though it sounds like a matter of straightforward, if repellent, political piracy, the scheme in fact resembles nothing so much as one of those rickety contraptions for which the cartoonist Rube Goldberg was known. For one thing, in Michigan at least, the choosing of electors by popular vote is required by a state statute. To repeal it would require a signature by the governor (or a veto override).

Or would it? Lurking on the edges of this sinister opera buffa is the doctrine of “independent state legislature,” the idea that, because the Constitution requires selection of electors “in such manner as the [state] legislature . . . shall direct,” the lawmakers can do (well) anything they want, and neither the Democratic governor nor the state’s courts can step in to stop it. As you will see below, the “independent legislature” doctrine is unlikely to make a serious appearance in the melodrama that is 2020—but it may play a variety of sinister parts in forthcoming voting-rights dramas, to the great injury of citizens’ right to vote.

 On Veterans Day, November 11, the Pennsylvania Department of State reported that county election offices had received “approximately 10,000 mail ballots” between Nov. 3 and Nov. 6.

That number is important because, as of this writing, Joe Biden’s margin in the Commonwealth was greater than 59,000 votes—meaning that the late-arriving ballots, even if they were all for Donald Trump, could not sway the result.

That means the only “election challenge” case to get near the U.S. Supreme Court is now, in practical terms, moot. The Court, its reputation thus far unsullied, can step free of the filthy mess the Trump campaign is making of the 2020 election.

It could also choose, however, to wade in by granting review Republican Party of Pennsylvania v. Boockvar. The Court could still consider it, under a doctrine it calls “capable of repetition, yet evading review.” (Think, for example, of Roe v. Wade; a pregnancy lasts nine months, while a case lasts years. Nonetheless, women will still get pregnant, and the issue needed deciding.)

The Court has twice refused emergency intervention in the Pennsylvania case, but it has not said it won’t hear the Republican claims. If it decides to allow briefing and argument, that’s not a good sign. The high court won’t magically proclaim Trump president. But a grant of review would be taken as a sign to conservative litigators that the Court’s newly augmented conservative majority may revive an obscure doctrine called “independent state legislatures.” That doctrine could offer the Court a broad highway toward interference with election procedures, congressional redistricting, and voting rights generally.

Let’s quickly review how the Pennsylvania “late” ballot case arose. In the fall of 2019, the Republican-led Pennsylvania legislature made voting easier—in particular, extending for the first time the right of any voter to vote by mail ballot. The legislature, however, refused (despite a request from Democratic Governor Tom Wolf) to extend the deadline for ballot receipt in case of mail delays.

In 2020, however, the pandemic, and the apparently intentional sabotage of the United States Postal System, hit at the same time. The state Democratic Party sued the Secretary of State (a Democrat, Kathy Boockvar), asking a state court to require counting all ballots received up to a week after Election Day. (That deadline wasn’t arbitrary: Pennsylvania, like many states, already does count ballots from active-duty military and from Americans living abroad if they arrive within seven days.)

When the case reached the state supreme court, the Secretary of State asked that court to grant an extension limited to ballots postmarked before the election and received within three days, which it did.

Now here’s what’s important: the state supreme court based its decision, in large part, on Pennsylvania’s own bill of rights, which dates in part to 1776—before there was even the notion of a “United States Constitution.” The provision they interpreted, Art. I § 5, reads “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” There is no equivalent guarantee in the U.S. Constitution.

Neither Boockvar nor the state court “rewrote” the statute, as conservative legal authorities keep carping. A decade ago, a federal court held that Pennsylvania law delegated to Boockvar’s office the authority to regulate election deadlines, even without legislative approval. And the state court’s order did not change the deadline scheme, but—in a concept familiar to every first-year law student–it held that the deadline would be unconstitutional “as applied” under the present circumstances.

Republican politicians and the state Republican party rushed to the U.S. Supreme Court, asking it to order rejection of any ballots received after the original deadline of 8 p.m. on Election Day.

One of their arguments was that the state court had violated the U.S. Constitution by applying the Pennsylvania Constitution at all.  This, they said, violated the “elections clause,” Article I § 4, which provides that “[t]he times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the Legislature thereof” unless Congress passes a law governing those things.

Here’s the core of the argument: the provision, they argued, says, “legislatures.” It does not say “legislatures and state courts.” It does not say “legislatures, state courts, and state constitutions.” Many Americans read the U.S. Constitution the way some Fundamentalists read the Bible: the literal meaning, in this account, is all that matters; context and common sense, not so much. Read that way, the U.S. Constitution, which supersedes any state law or constitution, gives the state legislatures a federal function “independent” of its function in the state. So, Republicans argued, the people of the state could not guarantee themselves a right to vote in federal elections, whatever they might put in their state constitution. The legislature can do any flipping thing it wants, and nobody else in Pennsylvania can say so much as “kiss my foot.”

This is the “independent state legislature doctrine.” I will confess from the jump that (though some smart people buy it) it seems a bit odd to me. State constitutions in our system are important documents. Adopted by the people, they establish state legislatures and set forth their procedures and powers. They also limit the legislatures in one important way—by setting out state “bills of rights” that indicate what the legislators shall not do to or in the name of the people of the state. Very often, those bills of rights protect more rights than does the federal Constitution.

So, can the state’s right-to-vote not apply to its most important elections? The “independent legislature” doctrine teaches that the federal “elections clause” functions as a kind of UFO: it abducts the legislature, like an abductee in Close Encounters of the Third Kind, transforms it into a federal body, then sends it back with powers and duties to which the people have explicitly not consented.

The “independent legislature” argument has been around for years and has some academic and jurisprudential support. But it has had little impact over the past century. Then, at the dawn of the new millennium, it reared its head in Bush v. Gore. In a separate opinion, then-Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, offered it as one reason for rejecting the Florida Supreme Court’s order for an ongoing recount. “[T]here are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government,” Rehnquist wrote. “To attach definitive weight to the pronouncement of a state court . . . would be to abdicate our responsibility to enforce the explicit requirements of Article II.”

The argument surfaced again in a 2015 case called Arizona State Legislature v. Arizona Independent Redistricting Commission. Arizona voters, sickened by the grotesque partisan gerrymanders of their legislators, took the issue away from the legislature and created a non-partisan commission to draw neutral congressional and legislative districts. The Republican-led legislature filed suit, arguing that the “elections clause” gave it, not the commission or the people, exclusive authority overdrawing districts. The Supreme Court rejected that claim. In an opinion by Justice Ruth Bader Ginsburg, the majority reasoned that “it would be perverse to interpret the term ‘Legislature’ in the Elections Clause so as to exclude lawmaking by the people . . . .” Thus, the majority reasoned, “legislature” includes “the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”

That was, however, a 5-4 decision, and two of the five-member majority (Ruth Bader Ginsburg and Anthony Kennedy) are now gone. None other than Chief Justice John Roberts wrote the principal dissent. His dissent suggested a limited version of the doctrine. The people, he said, might be able to “impos[e] some constraints on the legislature” but not “depos[e] it entirely.”

This brings us back to the 2020 election. The Court’s refusal to intervene in the Pennsylvania case was a 4-4 tie. Significantly, its order noted that the four most conservative Justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—would have been glad to shut down the counting of late ballots before they were even received.

A week later, on October 26, the Court confronted a separate ballot-deadline case, this one in Wisconsin, called Democratic National Committee v. Bostelmann. In that case, a federal district court had ordered a similar adjustment—allowing ballots mailed by election day to be counted if they arrived a week later. The U.S. Seventh Circuit reversed the decision and reinstated the statutory deadline. The Democratic plaintiffs then asked the Supreme Court to allow counting of the late-arriving ballots.

The Court, in a one-sentence order, refused to disturb the deadline. In a separate opinion, Roberts explained the different results by pointing out the difference between state and federal courts: “While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions . . . , this case involves federal intrusion on state lawmaking processes.” That would seem like an affirmation of the power of state courts.

But Roberts was writing only for himself. Perhaps ominously, Justices Gorsuch and Kavanaugh dissented. Kavanaugh appended an 18-page opinion, most of which centered on the idea that those feckless Wisconsin voters should have voted earlier. But in a prominent footnote, he cited Bush v. Gore and added, “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”

That was the end of the Wisconsin case and the temporary end of the Pennsylvania case. But the day after the decision in Bostelmann, the legal landscape changed for good. Justice Amy Coney Barrett was sworn in. The conservative lineup is now 6-3, and Roberts is not the “swing” justice. And as a lower court judge, Barrett showed some affinity for extreme conservative doctrines.

What does this mean for the Pennsylvania election? In terms of who wins the state’s 2020 electors, nothing at all. (Offered another chance to shut down counting of the “late” ballots, Alito refused on November 6.)  What does it mean, on the other hand, for the Pennsylvania case? The Court could still grant review and inscribe the “independent legislature doctrine” into the law. Or it could deny review but wait for the challenges Kavanaugh’s opinion will produce between now and the 2022 elections.

Applied to its logical extension, the “independent legislature” idea could do serious damage to voting rights in all 50 states.  Joshua A. Douglas, a voting-rights specialist at the University of Kentucky Rosenburg College of Law, noted in a 2014 article that 49 of the 50 states have broad guarantees of the right to vote, and 26 require elections to be “free and equal” (or something similar). An opinion adopting the strong “independent legislature” doctrine, he said in an email, “would cabin the state constitutional right to vote, just at the time where it’s needed even more given narrow federal jurisprudence. That could lead to more restrictive voting laws, a lack of state protection against gerrymandering, etc.”

There’s no question that the “independent legislature” doctrine has some historical grounding. In a detailed scholarly article published earlier this year, Michael Morley of the Florida State University School of Law traces the concept to the early years of the republic. (In an email to me, he was at pains to point out that “The outcome of this presidential election is definitely not going to hinge at all on this doctrine.”)

In his article, he noted that federal courts have tended to ignore the idea over the past century. But his email pointed out that a different provision of the Constitution, granting legislatures the power to approve constitutional amendments, “played a key role in the ratification of the Nineteenth Amendment, which established women’s suffrage. Article V of the U.S. Constitution grants each state’s legislature–rather than the state as an entity–authority to ratify federal constitutional amendments. Several state constitutions contained provisions that barred state legislatures from extending the vote to women. Some legislatures nevertheless ratified the Nineteenth Amendment, despite such restrictions in their respective state constitutions. The U.S. Supreme Court [in a case called Leser v. Garnett], held that the Nineteenth Amendment’s ratification was valid because state constitutions could not limit the authority that Article V grants specifically to a state legislature to ratify amendments to the U.S. Constitution.”

Scholarly disputes are one thing. But when I look at the constitutional picture emerging from the Roberts Court rather than from law reviews, the picture is not encouraging. At the most basic level, this new majority is (to put it mildly) not enthusiastic about voting rights.

Beyond that, there is a strange similarity in logic between the “independent legislature” and another article of conservative faith, the “unitary executive.” Congress cannot place any limits on the president’s power over the executive branch,  “unitary” hard-liners such as Attorney General William Barr insist. He can fire any federal official from an inspector general to Dr. Anthony Fauci. He can alter federal weather forecasts with a Sharpie, suppress federal science on climate change, and order or block federal criminal investigations of his enemies. No one—not Congress, not courts–can limit his power, even when used for the most blatant of partisan (or even crazy) purposes.

Here’s the similarity: those who espouse a hard-line version of the “independent legislature” doctrine believe that the state legislature–a partisan, elected body–has complete control over how their people’s right to vote in federal elections. In both cases, the idea is that the Constitution vests unreviewable power to affect constitutional rights in a powerful actor or institution. Other parts of government—even the people themselves—can not protect themselves from its arbitrary acts.

Similar notions—that power can be absolute and unreviewable–are seeping into the law governing police misconduct, immigration and alien detention, church and state, and even the First Amendment. The overall outline is clear; its basis is not the consent of the governed but raw power of those who govern.

Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.