Vikram Amar is the dean of the University of Illinois College of Law and the Iwan Foundation Professor of Law. Amar, an expert in constitutional law, spoke with News Bureau business and law editor Phil Ciciora about the independent state legislature theory, a controversial legal interpretation that some backers of former President Donald Trump invoked in their efforts to overturn the 2020 presidential election. The theory is at the heart of the U.S. Supreme Court case Moore v. Harper.
Prominent retired Republican jurist J. Michael Luttig has called Moore v. Harper “the most important case for American democracy in the almost two and a half centuries since America’s founding.” Is that true? What is the core issue in the dispute?
It could be a very, very significant case, for sure. The backstory to the case: After the decennial census, the North Carolina Legislature redrew congressional districts. The North Carolina Supreme Court then invalidated those district lines under the state constitution, saying they violated the state constitution’s prohibition on excessive partisanship. The North Carolina courts subsequently redrew the lines in conformance with the state constitution.
Now, a group of North Carolina Republicans has gone to the U.S. Supreme Court to invoke what has come to be known as the independent state legislature theory. This theory builds on Article I of the federal Constitution, which says that the where and how of congressional elections shall in the first instance “be prescribed in each State by the Legislature thereof.”
ISL theory posits that this language of Article I – and similar but distinct language of Article II, governing presidential elections – means that each state’s ordinary elected legislature enjoys a federal entitlement to have its preferences concerning federal-election logistics take full effect, notwithstanding anything in the state constitution that created the legislature in the first place.
If ISL were valid, the elected state legislature could decide before a presidential election that it, rather than the voters, would pick the state’s presidential electors, even though the state constitution says voters pick electors. Or that it, rather than the courts, would resolve post-election disputes about which candidate received more presidential votes, even though the state constitution says courts must resolve vote-tally disputes. Under ISL, there would be nothing the state’s people, the state’s constitution, the state’s governor or the state’s courts could do to limit the elected legislature.
ISL theory thus denies the ability of states, through their people and their constitutions, to decide what the state legislature shall consist of and what substantive limits it must respect.
You recently submitted an amicus brief to the Supreme Court, co-written with two other noted legal scholars – Akhil Reed Amar, who’s also your brother, and Steven Calabresi, a co-founder of the Federalist Society. What does the brief do?
Our brief does several things. First, it makes clear that state legislatures are creatures created – and limited – by state constitutions, and for that reason it makes no theoretical or historical sense to think of a state legislature as in any way “independent” of the state’s people and the state’s constitution. In the brief, we provide comprehensive history to show that the term “legislature of a state” in Articles I and II in 1787 did not refer to a particular state entity, but instead to a state’s system of lawmaking.
One powerful analogy is to the federal legislature. When the Constitution empowers “Congress” to do things, Congress almost always means not just the U.S. House of Representatives and the U.S. Senate, but the House, the Senate and the president. In other words, Congress is a shorthand for a lawmaking system. And this is true whether or not the constitutional empowerment of Congress uses the words “by law.”
We also demonstrate that if the independent state legislature theory were valid, then governors and other state executive-branch officials couldn’t participate in federal districting – which they did in two states at the founding, and which they have done in all other states for over a century, and which the U.S. Supreme Court unanimously upheld in 1932.
More generally, we show that if the Supreme Court is committed to principled originalism – that is, understanding the words of the Constitution as they were understood when they were enacted – ISL fails miserably. And since the three co-authors of our brief have very different political orientations, we illustrate that principled originalism needn’t be partisan.
If the independent state legislature doctrine is a such a far-fetched legal theory, why did the court accept this case? And should we be concerned that a number of conservative justices – Alito, Gorsuch and Thomas – were interested in hearing more about ISL? Does their interest give this radical theory more credence than it deserves?
ISL theory has been flatly rejected by the court in three or four cases over the last century, most recently in 2015 and 2019. But in the infamous Bush v. Gore case in 2000, three justices seemed to embrace the theory. And in the run-up to the 2020 election, three or four justices again flirted with it.
Importantly, all the cases in which various justices have expressed interest in the theory were so-called “shadow docket,” emergency cases in which normal briefing, oral argument and time for reflection were absent. And these cases certainly did not have the benefit of a great deal of recent scholarship written on the topic.
Our brief cites some of that recent academic work, including this 2022 article that our brief builds on. We show that ISL theory totally lacks merit.
How do you foresee this case playing out? What should court-watchers look for when the case is argued?
I am occasionally surprised by the court but am nonetheless optimistic – though very cautiously so – that when the justices read the briefs and the scholarly research, a majority of them will understand just how lopsided the independent state legislature theory debate is. Whether you believe in originalism or in following past court cases – or, as is true for most justices, some blend of both – ISL theory should lose.
Ultimately, we’ll have to wait and see what happens next spring or summer when the case comes down.