The Independent State Legislature Theory

It is stunning that this fringe theory has at least three backers on SCOTUS and could become law soon. The theory is also contrary to past SCOTUS precedents.

This Essay explores historical evidence from the Founding Era underlying Art. 1, Sec. 4 of the US Constitution (and related clauses) that delegate certain powers to state legislatures in making federal election laws. The article shows that far from empowering the state legislatures, the US Constitution was meant to curb state legislative supremacy and confirm the subordination of state legislatures to the checks and balances embedded in the individual state constitutions. It shows that the Independent State Legislature Theory is contrary to both the theory of constitutional government and the practices of state legislatures in making federal election laws.

Rosemarie Zagarri, The Historian's Case Against the Independent State Legislature Theory Boston College Law Review (March 2023) (Forthcoming).

Related:

The federal judiciary is increasingly fragmented into red courts and blue courts. Democratic presidents overwhelmingly appoint judges in blue states, while Republicans mostly appoint judges in red states.

This is a recent phenomenon; it was much less true even a decade ago.

It is accelerating. And it is likely to corrode both the rule of law and the public’s perception of it. In this Essay I document the phenomenon, explain why it is dangerous, and offer some thoughts on how to fix it.

Mark A. Lemley, Red Courts, Blue Courts on SSRN (2022).

From the body text of Leley's article:

Biden may be shying away from appointing judges in red states because of the strong historical norm that home-state senators get a quasi-veto (called a “blue slip”) over at least district court judge nominations. If a state has two Republican Senators, they may simply not be willing to allow a vote on a Biden nominee. And because all the votes today are so close, they depend on at least one judiciary committee Republican vote and generally one or two floor Republican votes. Losing a couple of Republican votes because the home state senators object might doom the nomination and will at the very least make it harder. 

Blue slips have less power over appellate nominations, which don’t come from a single state. That is one important reason appellate courts are less divided than district courts. (Another is that presidents care more about appellate judgeships and so may be willing to fight harder to appoint people to the appellate courts even in hostile jurisdictions).

The blue slip procedure needs to go. It’s not clear it was ever a good idea to give individual senators that much power. 

But at least in the past it was mostly used to object to particular individuals, or perhaps as a delaying tactic, rather than as a way to prevent appointments from the opposite party altogether.