Wednesday, July 6, 2022

Rhode Island Reds


1844 editorial cartoon in support of democracy in Rhode Island, via Wikipedia.

Law professor Melissa Murray was on the radio pointing out the irony of the "independent state legislature theory" in the case of Moore v. Harper to which the Supreme Court granted cert. last week in what I guess was their last act of vandalism for the term. This is the case of the North Carolina Republicans claiming that the state supreme court had no right to throw out their 2020 redistricting map (it was so partisan that the court claimed it violated the state constitution) because the federal Constitution says state legislatures can do anything they want when it comes to federal elections, even if it's illegal in the state.

There are two relev­ant clauses. One is the Elec­tions Clause, which reads, “The Times, Places and Manner of hold­ing Elec­tions for Senat­ors and Repres­ent­at­ives, shall be prescribed in each State by the Legis­lature thereof; but the Congress may at any time by Law make or alter such Regu­la­tions.”

The other is the Pres­id­en­tial Elect­ors Clause, which reads, “Each State shall appoint, in such Manner as the Legis­lature thereof may direct, a Number of Elect­ors.”

How you get from there to "the Legislature thereof" has supreme power to do whatever it wants I don't really know.

The "irony" Murray finds lies in the fact that the whole thing arose to public prominence because of concerns over election security in the 2020 election, and the idea that maybe state legislatures would have to step in to guarantee it, and yet now that the Supreme Court has decided to take up the case all those concerns have evaporated because it turned out there wasn't any evidence to justify them.

Except to me it's not ironic at all, since those "concerns" were bogus from the start. The "independent state legislature theory" has been around for a while (Chief Justice Rehnquist apparently evoked it in his concurrence in Bush v. Gore as a justification for Florida's deciding not to count all the votes), and though it's never attracted a SCOTUS majority, Alito, joined by Thomas and Gorsuch, endorsed it pretty decisively in a dissent in one of Trump's attempts to thwart the 2020 Pennsylvania election results:

It would be highly desirable to issue a ruling on the constitutionality of the State Supreme Court's decision before the election. That question has national importance, and there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution. The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.

"Simply". By exercising the function of judicial review over a legislature's actions, as state courts were doing long before Madison v. Marbury clarified that the Supreme Court would do the same over federal legislation, as I just learned from a piece on judicial review in general Joshua Zeitz at Politico Magazine:

Judicial review was already an established practice in state courts [at the time of the Constitutional Convention], a point that several delegates noted with approval. Madison lauded judges in Rhode Island who had “Refused to execute an unconstitutional law.” Elbridge Gerry observed that state judges regularly “set aside laws as being agst. the [state] Constitution.”

You should follow all these links, which are extremely informative, to get a fix on the relevant argumentation—I'm not going to try to summarize it all here—but I believe there's an important point that none of my sources get to, which is the provision in the Constitution itself, Article IV, section 4, according to which

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

And what's more in need of guaranteeing in a republican form of government than the fairness of its elections? As the members of the First Founding generation plainly thought themselves:

As Vikram Amar and Akhil Amar explain in a 2022 article, at the Founding, “the public meaning of state ‘legislature’ was clear and well accepted . . . : A state ‘legislature’ was . . . an entity created and constrained by its state constitution.”  Unsurprisingly, then, as Hayward Smith explains in his own 2022 article, in the decade after ratification of the federal Constitution, every state except South Carolina to have had a constitutional convention adopted state constitutional provisions regulating federal elections. That choice makes no sense if the Founding-era generation understood the federal Constitution to bar state constitutions from doing so.  And more recent historical scholarship, this time from Eliza Sweren-Becker and Michael Waldman, explains why state constitutional constraints on state legislatures regulating federal were so universally adopted: the founding generation were concerned that self-interested partisans would “twist[] election rules to benefit their faction.”  Were there any ambiguity in early state practice, Michael Weingartner’s 2021 piece shows that, since the Founding, across the country, “state constitutions have regulated both the procedure and substance of federal elections” and “state courts [have] consistently reviewed laws regulating federal elections.”

The record doesn't seem to have a whole lot to say about Article IV jurisprudence or how the federal government was supposed to go about making its guarantee to the people of the states good. 

The main case law seems to be from the weird episode of the 1841-42 revolution in Rhode Island, which was still administered under its 1663 colonial charter; protesters under the leadership of one Thomas Dorr demanding an end to the property qualification for voters (all white men, of course) and the state's existing General Assembly both held competing constitutional conventions, the Dorr constitution was adopted in a referendum held by Dorr's supporters, each side conducted its own gubernatorial election, and the incumbent governor Samuel Ward King declared martial law.

The military side of the rebellion was a total failure, though its political consequences were momentous—King's supporters devised another constitution incorporating many of the rebels' demands (including the vote for Black men, which Dorr himself had decided not to push for).  But it did raise the Article IV issue, in a couple of ways. First, President Tyler asserted that it was the federal government's job to enforce Rhode Island's republican form of government by sending troops if necessary (he decided it wasn't, in this case); and second, a supporter of Dorr's called Martin Luther sued a Kingite official, Luther Borden, for raiding his home during the rebellion and damaging his property, on the grounds that the King government, at that time, was not taking a republican form, making its actions illegitimate.

The Supreme Court, under the Dred Scott chief justice Roger Taney, found that the Supreme Court could not be asked to decide whether a state government was legitimate or not under Article IV: that was a political, not a judicial question, and could only be decided by president and Congress, and Luther lost the case. The general principle, though, seems to have been disturbed by the passage of the 14th Amendment's Equal Protection clause, which allowed the court to examine a state's legislative district map starting with the Tennessee case of Baker v. Carr in 1962.

I can't believe the point of the guarantee is so narrow, as Taney supposed, as to apply only to questions where the feds might be compelled to bring in military force—when a state was really in the condition of civil war to which Rhode Island never quite fell. In the first place because James Madison and Edmund Randolph said it wasn't, when they brought it to the convention in Philadelphia as part of their Virginia Plan, effectively the Constitution's first draft; they were worried about the possible degeneration of state government into class tyranny or one-man rule: 

“Resd. that a Republican government . . . ought to be guaranteed by the United States to each state.” The Records of the Federal Convention of 1787, at 22 (Max Farrand ed., 1937). In a letter in April, 1787, to Randolph, who formally presented the Virginia Plan to the Convention, Madison had suggested that “an article ought to be inserted expressly guaranteeing the tranquility of the states against internal as well as external danger. . . . Unless the Union be organized efficiently on republican principles innovations of a much more objectionable form may be obtruded.” Writings of James Madison 336 (G. Hunt ed., 1900). On the background of the clause, see W. WiecekThe Guarantee Clause of the U.S. Constitution ch. 1 (1972)

...on July 18, when Wilson and Mason indicated their understanding that the object of the proposal was “merely” to protect states against violence, Randolph asserted: “The Resoln. has 2 Objects. 1. to secure Republican government. 2. to suppress domestic commotions. He urged the necessity of both these provisions.” id. at 47. Following speakers alluded to the dangers of monarchy being created peacefully as necessitating the provision

(I always love it when that idiot George Mason is the fall guy for a Madisonian putdown.) 

I've been looking at an influential 1988 Columbia Law Review article by Deborah Jones Merritt, "The Guarantee Clause and State Autonomy: Federalism for a Third Century" (JSTOR link), arguing at the bottom of the Reagan era, with its assaults on progressive projects in the "laboratories of democracy", such as California's attempts to do better than the federal government in environmental standards, that the guarantee clause ought to be used as a protection for states against federal obstruction:

the Supreme Court should attempt to reconcile state autonomy and national power by recognizing the federalism principle rooted in the guarantee clause of article four, section four, of the Constitution. In that clause the United States pledges to "guarantee to every State in this Union a Republican Form of Government." As this Article demonstrates, the states cannot enjoy republican governments unless they retain sufficient autonomy to establish and maintain their own forms of government. The guarantee clause, therefore, implies a modest restraint on federal power to interfere with state autonomy.

These would clearly be "justiciable" issues (as was the Tennessee redistricting case in 1962), though not the kind Madison and Randolph were most concerned with, or the issues we are most concerned with now, when capital-R Republican state governments keep seeking ways of disenfranchising those who might vote against them—in the "independent state legislature theory" of discounting elections altogether when they dislike the outcome. But Merritt also makes room in her interpretation of the clause for the issues with which Madison and Randolph were preoccupied, as we are in the aftermath of the Trumpery, when a state legislature fails to represent the people from whom all political power is supposed to flow, in the strenuously majoritarian view of the founders:

A republic, James Madison wrote, is "a government which derives all its powers directly or indirectly from the great body of the people."' Alexander Hamilton agreed that the "fundamental maxim of republican government . .. requires that the sense of the majority should prevail."' Charles Pinckney told the members of South Carolina's ratifying convention that a republic was a form of government in which "the people at large, either collectively or by representation, form the legislature."' And Thomas Jefferson assured Congress during his first inaugural address that "absolute acquiescence in the decisions of the majority" is "the vital principle of republics."....

The guarantee clause, therefore, promises each state a government based on popular control. This promise plainly restricts the freedom of the states. No state may establish a monarchy, a dictatorship, or any other form of government inconsistent with popular representation. At the same time, however, the words of the guarantee clause suggest a limit on the power of the federal government to infringe state autonomy: the citizens of a state cannot operate a republican government, "choos[ing] their own officials" and "enact[ing] their own laws," if their government is beholden to Washington. Article IV's pledge by the "United States" to "guarantee . . . every State . . . a Republican Form of Government," therefore, may be read as a promise to preserve the state autonomy necessary to foster republican government. Only by leaving the citizens of each state free to establish and run their own governmental bodies can those citizens achieve Madison's republican ideal of "a government which derives all its powers directly or indirectly from the great body of the people."'

The language of the guarantee clause, in other words, has two aspects. On the one hand, the clause prohibits the states from adopting nonrepublican forms of government. On the other hand, as long as the states adhere to republican principles, the clause forbids the federal government from interfering with state governments in a way that would destroy their republican character.

So that's the point I wanted to make; putting it simply, just as the federal government needs to be restrained from preventing states from figuring out new and valuable ways of representing the people, so do the states need to be restrained by the judicial system from usurping the will of the people to set up undemocratic institutions, as for instance by sending fake elector slates to Washington in a presidential election. Both are the things the guarantee clause is there to protect. The "independent state legislature theory" claiming that the state legislature has power to override the people (citing the 10th Amendment no less!) is wrong, wrong, wrong, and it's Article IV section 4 that makes it so.

No comments:

Post a Comment