Outside the Beltway

Rehnquist and the ‘Independent State Legislature’ Theory

The late Chief Justice was right; his successors are wrong.

James Joyner · Saturday, December 10, 2022 · 5 comments

In today’s paper, the New York Times Editorial Board declares “This Case Should Never Have Made It to the Supreme Court.”

“The most important case for American democracy” in the nation’s history — that’s how the former appeals court judge J. Michael Luttig described Moore v. Harper, an extraordinary lawsuit that the Supreme Court considered in oral arguments Wednesday morning. Judge Luttig, a conservative and a widely respected legal thinker, is not one for overstatement. Yet most Americans aren’t paying attention to the case because it involves some confusing terminology and an arcane legal theory. It is essential that people understand just how dangerous this case is to the fundamental structure of American government, and that enough justices see the legal fallacies and protect our democracy.

First, the back story on the case: In 2021, North Carolina lawmakers redrew their congressional maps. The state had 13 districts at the time, and its voters were more or less evenly divided between Democrats and Republicans. But the Republicans who are in control of North Carolina’s legislature didn’t want fair maps; they wanted power. In one of the most egregious gerrymanders in the nation, they drew 10 seats intended to favor themselves.

The North Carolina courts were not amused. A panel of three trial judges found that the 2021 maps were “intentionally and carefully designed to maximize Republican advantage” — so much so that Republicans could win legislative majorities even when Democrats won more votes statewide. The State Supreme Court struck down the maps, finding they violated the North Carolina Constitution’s guarantees of free elections, free speech, free assembly and equal protection.

That should have been the end of it: A state court applying the state Constitution to strike down a state law. But North Carolina’s Republican lawmakers appealed, arguing that the U.S. Constitution does not give state courts authority to rule on their congressional maps — even though the legislature had passed a law authorizing the courts to review redistricting plans like these. Instead, the lawmakers are relying on an untested theory that asserts that state legislatures enjoy nearly unlimited power to set and change rules for federal elections.

In 2000 the chief justice at the time, William H. Rehnquist, proposed the idea in his concurring opinion on Bush v. Gore, and the independent state legislature theory has been floating around the fringes of right-wing legal circles ever since.

There’s a whole lot more explanation as to why ruling that the state courts should not be able to overrule the state legislature is a bad idea, and I commend it to those who want more, but I suspect few OTB regulars think otherwise. Nor do I. I am, however, fascinated by the purported origin story.

CNN’s Joan Biskupic piqued my interest earlier this week with “How William Rehnquist led to the new monumental challenge to presidential election rules.”

When Chief Justice William Rehnquist helped decide the 2000 presidential election, his radical legal theory failed to gain a majority. But today’s conservative court is giving it another chance, in a case that could transform elections in 2024 and beyond.

[…]

Rehnquist’s approach, which has become known as the independent state legislature theory, would give complete power to state legislatures to control election practices, at the expense of state courts ensuring constitutional protections.

If the court adopts his approach in a North Carolina dispute over the Constitution’s Elections Clause, the consequences could be staggering. It would prevent judges from throwing out unfair redistricting maps or invalidating measures that restrict access to the polls. If extended to the terms of the Electors Clause, state legislators could completely shape the appointment of a state’s presidential elections, even if contrary to the popular vote.

[…]

During the Bush v. Gore oral arguments in December 2000, Justice Anthony Kennedy warned of the dangers to democracy if state constitutions were bypassed in elections controversies.

“It seems to me essential to the republican theory of government that the constitutions of the United States and the states are the basic charter,” said Kennedy, a centrist conservative, “and to say that the legislature of the state is unmoored from its own constitution, and it can’t use its courts … it seems to me a holding which has grave implications for our republican theory of government.”

When Rehnquist wrote his separate opinion in the case, he acknowledged that the justices usually defer to state courts on issues of state law. “But there 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. This is one of them,” he wrote in a concurring opinion, joined by Justices Antonin Scalia and Clarence Thomas.

That idea laid dormant for two decades but was revived by legal allies of former President Donald Trump during the 2020 election, including as he was trying to overturn his defeat. And since then, four of the justices in today’s right-wing supermajority on the Supreme Court have expressed interest in the so-called independent state legislature theory.

Justice Brett Kavanaugh was among the first on the current bench to invoke Rehnquist.

“Under the US Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections,” he wrote in an October 2020 election controversy over Wisconsin state rules. “As Chief Justice Rehnquist persuasively explained in Bush v. Gore … the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”

Rehnquist is no longer with us to defend himself but I interpret his concurrence in Bush v. Gore much more narrowly than Kavanaugh and others. He wasn’t, in my view, arguing that state courts have no role in applying the state constitution to voting legislation, even in the narrow case of elections for federal offices. Rather, he was arguing that state courts do not have the authority to rewrite the rules established by the state legislatures after the fact.

In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. That practice reflects our understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns. Cf. Erie R. Co. v. Tompkins,304 U.S. 64 (1938). Of course, in ordinary cases, the distribution of powers among the branches of a State’s government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character. See U.S. Const., Art. IV, §4. But there 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. This is one of them. Article II, §1, cl. 2, provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” electors for President and Vice President. (Emphasis added.) Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.

Note that he doesn’t declare that the courts have no role. Simply that the statutory text has independent significance.

3 U.S.C. § 5 informs our application of Art. II, §1, cl. 2, to the Florida statutory scheme, which, as the Florida Supreme Court acknowledged, took that statute into account. Section 5 provides that the State’s selection of electors “shall be conclusive, and shall govern in the counting of the electoral votes” if the electors are chosen under laws enacted prior to election day, and if the selection process is completed six days prior to the meeting of the electoral college. As we noted in Bush v. Palm Beach County Canvassing Bd., ante, at 6.

“Since §5 contains a principle of federal law that would assure finality of the State’s determination if made pursuant to a state law in effect before the election, a legislative wish to take advantage of the ‘safe harbor’ would counsel against any construction of the Election Code that Congress might deem to be a change in the law.”

If we are to respect the legislature’s Article II powers, therefore, we must ensure that postelection state-court actions do not frustrate the legislative desire to attain the “safe harbor” provided by §5.

This isn’t a case, as in the North Carolina case scheduled to be heard this term, of the legislative actions being challenged ahead of time. Rather, the Florida Supreme Court was changing the rules set out by the legislature after the election—indeed, after votes had been counted—with the potential for deciding who would govern the entire country.

This inquiry does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II.

Rehnquist isn’t arguing that the courts don’t have a role even after the election. Someone has to rule as to whether the statute is being correctly applied, after all. Rather, he’s saying that, because this is a US Presidential election, the US Supreme Court has jurisdiction and does not, as is the norm in cases involving intrastate disputes, need to defer to the state courts. This is true both because of the explicit language of the US Constitution but also a longstanding Federal law governing elections.

n Florida, the legislature has chosen to hold statewide elections to appoint the State’s 25 electors. Importantly, the legislature has delegated the authority to run the elections and to oversee election disputes to the Secretary of State (Secretary), Fla. Stat. §97.012(1) (2000), and to state circuit courts, §§102.168(1), 102.168(8). Isolated sections of the code may well admit of more than one interpretation, but the general coherence of the legislative scheme may not be altered by judicial interpretation so as to wholly change the statutorily provided apportionment of responsibility among these various bodies. In any election but a Presidential election, the Florida Supreme Court can give as little or as much deference to Florida’s executives as it chooses, so far as Article II is concerned, and this Court will have no cause to question the court’s actions. But, with respect to a Presidential election, the court must be both mindful of the legislature’s role under Article II in choosing the manner of appointing electors and deferential to those bodies expressly empowered by the legislature to carry out its constitutional mandate.

In order to determine whether a state court has infringed upon the legislature’s authority, we necessarily must examine the law of the State as it existed prior to the action of the court. Though we generally defer to state courts on the interpretation of state law–see, e.g., Mullaney v. Wilbur, 421 U.S. 684 (1975)–there are of course areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law.

Again, Rehnquist isn’t saying that the Florida legislature had carte blanche to set election laws without any oversight from the courts. He would surely have considered that preposterous. Rather, he is saying that the express will of the legislature as to the rules of the election should govern the election after the votes have been cast. That, while the courts can adjudicate whether the rules are being applied correctly—or interpret conflicting statutory language—they don’t have the authority to change the rules after the fact.

This inquiry does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II.

Again: not no weight. Just not definitive weight.

Acting pursuant to its constitutional grant of authority, the Florida Legislature has created a detailed, if not perfectly crafted, statutory scheme that provides for appointment of Presidential electors by direct election. Fla. Stat. §103.011 (2000). Under the statute, “[v]otes cast for the actual candidates for President and Vice President shall be counted as votes cast for the presidential electors supporting such candidates.” Ibid. The legislature has designated the Secretary of State as the “chief election officer,” with the responsibility to “[o]btain and maintain uniformity in the application, operation, and interpretation of the election laws.” §97.012. The state legislature has delegated to county canvassing boards the duties of administering elections. §102.141. Those boards are responsible for providing results to the state Elections Canvassing Commission, comprising the Governor, the Secretary of State, and the Director of the Division of Elections. §102.111. Cf. Boardman v. Esteva, 323 So. 2d 259, 268, n. 5 (1975) (“The election process . . . is committed to the executive branch of government through duly designated officials all charged with specific duties … . [The] judgments [of these officials] are entitled to be regarded by the courts as presumptively correct . . . ”).

After the election has taken place, the canvassing boards receive returns from precincts, count the votes, and in the event that a candidate was defeated by .5% or less, conduct a mandatory recount. Fla. Stat. §102.141(4) (2000). The county canvassing boards must file certified election returns with the Department of State by 5 p.m. on the seventh day following the election. §102.112(1). The Elections Canvassing Commission must then certify the results of the election. §102.111(1).

The state legislature has also provided mechanisms both for protesting election returns and for contesting certified election results. Section 102.166 governs protests. Any protest must be filed prior to the certification of election results by the county canvassing board. §102.166(4)(b). Once a protest has been filed, “the county canvassing board may authorize a manual recount.” §102.166(4)(c). If a sample recount conducted pursuant to §102.166(5) “indicates an error in the vote tabulation which could affect the outcome of the election,” the county canvassing board is instructed to: “(a) Correct the error and recount the remaining precincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots,” §102.166(5). In the event a canvassing board chooses to conduct a manual recount of all ballots, §102.166(7) prescribes procedures for such a recount.

Contests to the certification of an election, on the other hand, are controlled by §102.168. The grounds for contesting an election include “[r]eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election.” §102.168(3)(c). Any contest must be filed in the appropriate Florida circuit court, Fla. Stat. §102.168(1), and the canvassing board or election board is the proper party defendant, §102.168(4). Section 102.168(8) provides that “[t]he circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances.” In Presidential elections, the contest period necessarily terminates on the date set by 3 U.S.C. § 5 for concluding the State’s “final determination” of election controversies.”

So, well ahead of the election, the Florida legislature had established a clear and detailed set of rules to ensure certification of these states Presidential votes so that the state’s slate of Electors could be certified in time to comply with the requirements of Federal law. Granted that standing could be an issue, these provisions could have been challenged in advance of the election but they were not.

In its first decision, Palm Beach Canvassing Bd. v. Harris, ___ So. 2d, ___ (Nov. 21, 2000) (Harris I), the Florida Supreme Court extended the 7-day statutory certification deadline established by the legislature.² This modification of the code, by lengthening the protest period, necessarily shortened the contest period for Presidential elections. Underlying the extension of the certification deadline and the shortchanging of the contest period was, presumably, the clear implication that certification was a matter of significance: The certified winner would enjoy presumptive validity, making a contest proceeding by the losing candidate an uphill battle. In its latest opinion, however, the court empties certification of virtually all legal consequence during the contest, and in doing so departs from the provisions enacted by the Florida Legislature.

The court determined that canvassing boards’ decisions regarding whether to recount ballots past the certification deadline (even the certification deadline established by Harris I) are to be reviewed de novo, although the election code clearly vests discretion whether to recount in the boards, and sets strict deadlines subject to the Secretary’s rejection of late tallies and monetary fines for tardiness. See Fla. Stat. §102.112 (2000). Moreover, the Florida court held that all late vote tallies arriving during the contest period should be automatically included in the certification regardless of the certification deadline (even the certification deadline established by Harris I), thus virtually eliminating both the deadline and the Secretary’s discretion to disregard recounts that violate it.³

Moreover, the court’s interpretation of “legal vote,” and hence its decision to order a contest-period recount, plainly departed from the legislative scheme. Florida statutory law cannot reasonably be thought to require the counting of improperly marked ballots. Each Florida precinct before election day provides instructions on how properly to cast a vote, §101.46; each polling place on election day contains a working model of the voting machine it uses, §101.5611; and each voting booth contains a sample ballot, §101.46. In precincts using punch-card ballots, voters are instructed to punch out the ballot cleanly:

AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD.

Instructions to Voters, quoted in Touchston v. McDermott, 2000 WL 1781942, *6 & n. 19 (CA11) (Tjoflat, J., dissenting). No reasonable person would call it “an error in the vote tabulation,” Fla. Stat. §102.166(5), or a “rejection of legal votes,” Fla. Stat. §102.168(3)(c),⁴ when electronic or electromechanical equipment performs precisely in the manner designed, and fails to count those ballots that are not marked in the manner that these voting instructions explicitly and prominently specify. The scheme that the Florida Supreme Court’s opinion attributes to the legislature is one in which machines are required to be “capable of correctly counting votes,” §101.5606(4), but which nonetheless regularly produces elections in which legal votes are predictably not tabulated, so that in close elections manual recounts are regularly required. This is of course absurd. The Secretary of State, who is authorized by law to issue binding interpretations of the election code, §§97.012, 106.23, rejected this peculiar reading of the statutes. See DE 00—13 (opinion of the Division of Elections). The Florida Supreme Court, although it must defer to the Secretary’s interpretations, see Krivanek v. Take Back Tampa Political Committee, 625 So. 2d 840, 844 (Fla. 1993), rejected her reasonable interpretation and embraced the peculiar one. See Palm Beach County Canvassing Board v. Harris, No. SC00—2346 (Dec. 11, 2000) (Harris III).

But as we indicated in our remand of the earlier case, in a Presidential election the clearly expressed intent of the legislature must prevail. And there is no basis for reading the Florida statutes as requiring the counting of improperly marked ballots, as an examination of the Florida Supreme Court’s textual analysis shows. We will not parse that analysis here, except to note that the principal provision of the election code on which it relied, §101.5614(5), was, as the Chief Justice pointed out in his dissent from Harris II, entirely irrelevant. See Gore v. Harris, No. SC00-2431, slip op., at 50 (Dec. 8, 2000). The State’s Attorney General (who was supporting the Gore challenge) confirmed in oral argument here that never before the present election had a manual recount been conducted on the basis of the contention that “undervotes” should have been examined to determine voter intent. Tr. of Oral Arg. in Bush v. Palm Beach County Canvassing Bd., 39—40 (Dec. 1, 2000); cf. Broward County Canvassing Board v. Hogan, 607 So. 2d 508, 509 (Fla. Ct. App. 1992) (denial of recount for failure to count ballots with “hanging paper chads”). For the court to step away from this established practice, prescribed by the Secretary of State, the state official charged by the legislature with “responsibility to … [o]btain and maintain uniformity in the application, operation, and interpretation of the election laws,” §97.012(1), was to depart from the legislative scheme.

So, in instance after instance, the Florida Supreme Court simply ignored or essentially rewrote state electoral law after the election had been contested and the votes counted. The made up an entirely new basis for ordering a recount that not only overrode the judgment of the legislature but jeopardized the deadline for certification of the vote.

The scope and nature of the remedy ordered by the Florida Supreme Court jeopardizes the “legislative wish” to take advantage of the safe harbor provided by 3 U.S.C. § 5. Bush v. Palm Beach County Canvassing Bd., ante, at 6. December 12, 2000, is the last date for a final determination of the Florida electors that will satisfy §5. Yet in the late afternoon of December 8th–four days before this deadline–the Supreme Court of Florida ordered recounts of tens of thousands of so-called “undervotes” spread through 64 of the State’s 67 counties. This was done in a search for elusive–perhaps delusive–certainty as to the exact count of 6 million votes. But no one claims that these ballots have not previously been tabulated; they were initially read by voting machines at the time of the election, and thereafter reread by virtue of Florida’s automatic recount provision. No one claims there was any fraud in the election. The Supreme Court of Florida ordered this additional recount under the provision of the election code giving the circuit judge the authority to provide relief that is “appropriate under such circumstances.” Fla. Stat. §102.168(8) (2000).

Even after all that, Rehnquist isn’t saying that the courts have no role. Rather, he’s arguing that their role is constrained by the legislative intent.

Surely when the Florida Legislature empowered the courts of the State to grant “appropriate” relief, it must have meant relief that would have become final by the cut-off date of 3 U.S.C. § 5. In light of the inevitable legal challenges and ensuing appeals to the Supreme Court of Florida and petitions for certiorari to this Court, the entire recounting process could not possibly be completed by that date. Whereas the majority in the Supreme Court of Florida stated its confidence that “the remaining undervotes in these counties can be [counted] within the required time frame,” ___ So. 2d. at ___, n. 22 (slip op., at 38, n. 22), it made no assertion that the seemingly inevitable appeals could be disposed of in that time. Although the Florida Supreme Court has on occasion taken over a year to resolve disputes over local elections, see, e.g., Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (1998) (resolving contest of sheriff’s race 16 months after the election), it has heard and decided the appeals in the present case with great promptness. But the federal deadlines for the Presidential election simply do not permit even such a shortened process.

“In [the four days remaining], all questionable ballots must be reviewed by the judicial officer appointed to discern the intent of the voter in a process open to the public. Fairness dictates that a provision be made for either party to object to how a particular ballot is counted. Additionally, this short time period must allow for judicial review. I respectfully submit this cannot be completed without taking Florida’s presidential electors outside the safe harbor provision, creating the very real possibility of disenfranchising those nearly 6 million voters who are able to correctly cast their ballots on election day.” ___ So. 2d, at ___ (slip op., at 55) (Wells, C. J., dissenting).

The other dissenters echoed this concern: “[T]he majority is departing from the essential requirements of the law by providing a remedy which is impossible to achieve and which will ultimately lead to chaos.” Id., at ___ (slip op., at 67 (Harding, J., dissenting, Shaw, J. concurring).

Indeed, it would have been perverse. Bush narrowly won the election. The Florida Supreme Court was ordering a recount under rules it made up after the fact, throwing out those under which the election was run. And, had Gore picked up enough votes from the recount to move ahead, there would have been no time left for Bush to challenge the results. All to ensure that the votes of people who failed to correctly cast their ballot were counted.

Given all these factors, and in light of the legislative intent identified by the Florida Supreme Court to bring Florida within the “safe harbor” provision of 3 U.S.C. § 5 the remedy prescribed by the Supreme Court of Florida cannot be deemed an “appropriate” one as of December 8. It significantly departed from the statutory framework in place on November 7, and authorized open-ended further proceedings which could not be completed by December 12, thereby preventing a final determination by that date.

For these reasons, in addition to those given in the per curiam, we would reverse.

Again: Rehnquist is making no assertion at all that the state courts have no role in the states’ elections for Federal offices, much less that the state legislatures can simply ignore the state constitution and do whatever the hell they want. He was, after all, a judge. He had, by that point, been on the US Supreme Court for almost 29 years. Rather, he’s saying that election disputes ought to be judged according to the rules put in place before the election and that judicial decisions regarding election disputes must be reasonably grounded in those rules.

I agree with him wholeheartedly. And agree with Luttig and the overwhelming body of US legal scholars that the Independent Legislature Theory is abject nonsense divorced from any understanding of how the law has ever worked in the United States of America.