Amar and Amar on Independent State Legislatures

Following various lawsuits during the 2020 election, which are now being echoed in North Carolina by related claims that are different from those in North Carolina, there was renewed interest in the Constitution’s mention of “legislature” as a role in setting elections rules (as Josh points out below).

One such piece, written by Akhil and Vikram respectively, condemns the doctrine. The piece is titled Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish, and it will be forthcoming in the Supreme Court Review, for which I am one of the faculty editors.

This is the intro:

What was the biggest news in OT 2020? didn’t It happensIThe runUp to, The aftermath, Another Close It is hard!The Supreme Court rejected to allow the presidential election. Do it twice Reduced on Some of the most horrible All aspects This is The execrable Bush v. Gore Views This is 20 years ago.
But You can find more information at Close Look At the The Term The results show that there are wAs a short summary Moment of truth
Constitutive peril You can find more information at Week When it appeared quite possible for the Court to once againAs it Did in 2000BeSmirch it and push the country into an abyss of jurisprudence.

The Days Before the election in 2020, there was a carnival of litigantsLet’s make a call
These are them BushLeaguersWe have several cases that are based on this. SEemingly Possible, but not always Preposterous Constitution Theorie It had gained the support of three prominent individuals jUseful for: Reverse 2000. Rehnquist’s words echoScaliaThomas concurrence in Bush v. GoreThe 2020 BushLeaguers Correctly note That Article II Each state’s “legislature”, is authorized to make decisions This is how it works To be selected, the presidential electors of each state. This is the right starting point. BushLeaguers Rapidly careenEd You can claim, of course. ThAt State courts cYou wouldn’t Properly adjust state voting laws
These laws should be aligned with the state Constitutions These are the terms used to describe it. stateJurists for the court. Perilously, Four jUseful for: at various points In the autumn 2020 The f appeared to beall for This beguiling BushLeague IdeasAn idea commonly referred to by the term “Independent”. State Legislature” (ISL) Theorie. NUnknown Justice Close to Why? All the reasons These are the ones. SeveralWhy This theory does not work.
The following is a summary of our findings. Please show whYour Name BushLeague Arguments They were right twenty years ago
agoHow? They were Shown To be incorrect Sound scholarship In the The following years were marked by changes Why They Are Even More It is wrong Today, Many thanks for Recent and Dispositive Supreme Cour case law. AYou can find it at www.ll.comEnsible The constitutionalistsWhichever The Court Oder You can leave it. Which?
OriginalistS or precedentListSIt doesn’t matter if you are right or left of the centershould Burial Bush.

Also, we aim to Do it! That The Both errors and good deeds This is Bush v. Gore Go Far
Beyond the ISL Ideas at the Heart of the RehnquistScaliaThomas concurrence. Bush This was A case can be mistaken in almost any way possible. IYou were ever here Bad seed. Bush Was it?. The Recent efforts to revitalize and rehabilitate BushThe reputation of’s Are So Real cause for concern Jurisprudential Concerneven alarm. WToday, we need to urge Cour To Take a quick and precise break Bush Get it done as quickly as possibleAnd in all cases, Well The next contest for the presidency electionThis can be very distressing. Enough The Court will not do any extra work.

These authors discuss a wide range of topics, and even their differences with Michael Morley’s recent article, which currently stands as the most prominent academic defense of an independent state legislature idea.

Beyond Amar & Amar, here are several more articles via The Originalism Blog (1, 2), where Mike Ramsey observes that while he believes (“on a quick reflection”) the Amar brothers seem correct, their view may not resolve the current litigation about court-drawn maps:

This issue has not been examined closely. This language is likely to have given power to state legislatures acting in accordance with their (state-specific) constitutional procedures. It’s not surprising that the early state constitutions after ratification contained federal election regulations. However, it does seem a different matter. As the post describes, it “congressional mapping drawn by”. [the]The supreme court of the state. It is not the legislature that serves as state supreme court. This is a basic proposition in the eighteenth-century separation of power. A map that was drawn by the legislature can be declared unconstitutional by the state supreme court, I believe, because it does not comply with the state constitution’s requirements. The state court can’t draw or order the use of a map that was not drawn by it. There isn’t any precedent from the founding era for a state supreme judge deciding “Times, Places, and Manner” of holding elections.

It’s wonderful to see an increase in attention to history and text when it comes to these questions. It’s a great thing that the Supreme Court Review is going to be a part of this.