Amicus Curiae Brief — Timothy K. Moore, in His Official Capacity as Speaker of the North Carolina House of Representatives, et al., Petitioners v. Rebecca Harper, et al.
Supreme Court briefSep 2, 2022
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No. 21-1271
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------TIMOTHY K. MOORE, in his official capacity
as Speaker of the North Carolina
House of Representatives, et al.,
Petitioners,
v.
REBECCA HARPER, et al.,
Respondents.
&
TIMOTHY K. MOORE, in his official capacity
as Speaker of the North Carolina
House of Representatives, et al.,
Petitioners,
v.
NORTH CAROLINA LEAGUE OF
CONSERVATION VOTERS, INC., et al.,
Respondents.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
North Carolina Supreme Court
---------------------------------♦--------------------------------BRIEF FOR THE WISCONSIN VOTER ALLIANCE
AND PURE INTEGRITY MICHIGAN ELECTIONS AS
AMICI CURIAE SUPPORTING NEITHER PARTY
---------------------------------♦--------------------------------ERICK G. KAARDAL
MOHRMAN, KAARDAL & ERICKSON, P.A.
Special Counsel to THOMAS MORE SOCIETY
150 South Fifth Street, Suite 3100
Minneapolis, Minnesota 55402
Telephone: 612-341-1074
Email: kaardal@mklaw.com
Attorneys for Amici Curiae Wisconsin Voter Alliance
and Pure Integrity Michigan Elections
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
INTEREST OF THE AMICI CURIAE .................
1
SUMMARY OF THE ARGUMENT .....................
2
STATEMENT .......................................................
6
ARGUMENT ........................................................
7
I.
The independent state legislature theory
requires the resolution of the meaning of
“legislature” as applied to the Elections
Clause, but in the context of either historical or legal precedent ...............................
7
II.
If the Independent State Legislature applies, Executive Order No. 14019 is constitutionally suspect as the President has
encroached on state legislative prerogatives ........................................................... 14
III.
If the independent state legislature theory
applies, the Electoral Count Act is constitutionally suspect ...................................... 17
CONCLUSION..................................................... 32
ii
TABLE OF AUTHORITIES
Page
CASES:
Arizona State Legis. v. Arizona Indep. Redistricting Comm’n, 576 U.S. 787 (2015) .................... passim
Bond v. U.S., 134 S.Ct. 2077 (2014) ............................23
Bush v. Gore, 531 U.S. 98 (2000) .................. 3, 4, 13, 18
Bush v. Palm Beach Cnty. Canvassing Bd., 531
U.S. 70 (2000) ...................................... 7, 9, 10, 17, 18
Carson v. Simon, 978 F.3d 1051 (8th Cir. 2020).........30
McCulloch v. Maryland, 17 U.S. 316 (1819) ......... 19, 23
McPherson v. Blacker, 146 U.S. 1 (1892) ...... 7, 9, 10, 17
New York v. U.S., 505 U.S. 144 (1992).........................19
Perez v. United States, 402 U.S. 146 (1971) ................19
Smily v. Holm, 285 U.S. 355 (1932) ............................12
U.S. v. Comstock, 130 S.Ct. 1949 (2010) .....................23
United States v. Darby, 312 U.S. 100 (1941) ..............19
CONSTITUTIONAL PROVISIONS:
U.S. Const. art. I, § 4, cl. 1
(the “Elections Clause”) .......................... 2, 3, 6, 8, 15
U.S. Const. art. I, § 4
Article II’s Presidential Electors Clause .............. 3, 9
U.S. Const. art. I, § 8, cl. 18.........................................23
U.S. Const. art. II, § 1, cl. 2 ...........................................4
iii
TABLE OF AUTHORITIES—Continued
Page
U.S. Const. art. II, § 1, cl. 2
(the “Electors Clause”) .................................. 9, 10, 15
Georgia Constitution of 1798, Art. IV, § 2 ..................30
STATUTES:
3 U.S.C. § 5 ....................................................................4
3 U.S.C. § 15 ........................................................ passim
RULES:
S. Ct. Rule 37.6 .............................................................1
OTHER AUTHORITIES:
Alexander Hamilton in Federalist Papers, No.
68, on “The Mode of Electing the President”
(1788) .......................................................................27
Black’s Law Dictionary (Bryan A. Garner, ed.
8th ed. West 2004) .....................................................3
Brandon J. Murrill, Modes of Constitutional Interpretation, Congressional Research Service
(Mar. 15, 2018) .........................................................26
Hayward H. Smith, History of Article II Independent State Legislature Doctrine, 29 Fla. St.
U.L. Rev. 731 (2001) ................................................11
Hayward H. Smith, Revisiting the History of the
Independent State Legislature Doctrine, 53 St.
Mary’s L. J. 445 (2022) ............................................11
iv
TABLE OF AUTHORITIES—Continued
Page
Michael T. Morley, The Intratextual Independent
“Legislature” and the Elections Clause, 109
Nw. U. L. Rev. 847 (2015).........................................12
Michael T. Morley, The Independent State Legislature Doctrine, Federal Elections, and State
Constitutions, 55 GA. L. REV. 1 (2020) ............ 11, 12
Michael T. Morley, The Independent State Legislature Doctrine, Federal Elections, and Electors Clause ...............................................................12
Richard H. Pildes, Judging “New Law” in Election Disputes, 29 Fla. St. U.L. Rev. 691 (2001) .......12
Robert A. Schapiro, Conceptions and Misconceptions of State Constitutional Law in Bush v.
Gore, 29 Fla. St. U.L. Rev. 661 (2001) .....................11
St. George Tucker, Blackstone’s Commentaries
with notes of reference to the Constitution
and Laws of the Federal Government of the
United States and of the Commonwealth of
Virginia (1803) ........................................................29
Vasen Kesavan, Is the Electoral Count Act Unconstitutional, 80 N.C. L. Rev. 1653 (2002).............18
Executive Order (“EO”) 14019 of March 7, 2021,
titled “Promoting Access to Voting,” 86 FR
13623 .......................................................................14
1
INTEREST OF THE AMICI CURIAE1
Wisconsin Voter Alliance (WVA) is a Wisconsin
non-profit corporation. Ron Heuer is its President.
WVA’s vision statement is “[t]o facilitate and coordinate restoration of voting integrity in the State of
Wisconsin.” WVA’s mission statement is “to effect
change to law and policies surrounding elections. We
will accomplish this goal by creating multi-faceted
objectives to restore voter confidence, and integrity in
the election process.” WVA uses the following means to
accomplish its goals: educating the public and elected
officials; working to establish best election practices;
identifying and encouraging debate on election policy
and law; and encouraging fairness during elections.
Pure Integrity Michigan Elections (PIME) is an
unincorporated association in Michigan. Patrice Johnson is its President. PIME engages in investigations of
Michigan’s elections to ensure legal compliance. PIME
uses the results of its investigations to message to the
public about improving Michigan’s elections.
The WVA and PIME have an interest in the policy
and legal implications regarding the application of the
independent state legislature doctrine as implicated in
the petitioners question presented. The WVA and
PIME, as amici curiae, file this brief on behalf of
1
Pursuant to S. Ct. Rule 37.6, counsel for all parties have
consented to the filing of this brief. No counsel for a party authored this brief in whole or in part and no person or entity other
than amicus, its members, or counsel made a monetary contribution to its preparation or submission.
2
neither party. However, the disposition of the question
has far-reaching affect. The examination of the independent state legislature doctrine (doctrine) from a
perspective of its origination and the current debate of
its meaning in the Elections Clause, has potential ramifications to the election process which may affect the
very foundation and core of democracy. The doctrine
can serve the people well or change the course of history and the meaning of democracy to generations to
come affecting the integrity of elections and the electors’ confidence and acceptance of election outcomes
(including the candidates themselves). Moreover, the
application of the doctrine can also affect existing understanding of the legalities of other federal election
laws, Executive Orders or future laws.
---------------------------------♦---------------------------------
SUMMARY OF THE ARGUMENT
This amici curiae brief is filed in support of neither
party. The petitioners seek review of whether state
courts can review state regulations governing congressional elections based upon state constitutional provisions. In so doing, they invoke the Elections Clause
governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof.” U.S. Const. art. I, § 4, cl. 1. In so doing,
the petitioners have brought to the forefront the issue
of the proper allocation of authority in the federal election process.
3
Here, the petitioners bring this Court onto the
cusp of constitutional peril as it relates to the application of the independent state legislature theory,2 to the
election process under the Elections Clause and Electors Clause of the U.S. Constitution. The issues have
certainly come to a head in academia since the 2020
presidential election. But, as partisan politics seek to
change the election landscape, for better or for worse,
how the theory is interpreted and potentially becomes
legal doctrine will either strengthen or weaken our
democracy for generations. Regardless, any interpretation cannot be made in a vacuum. And the key is interpreting the phrase “state legislature.” Whether
textualists or origninalists, right or left, there lies an
existing jurisprudential concern for the public in how
or where the legal theory lies in the election process.
In brief, the independent state legislature theory
holds that the federal Constitution in Article I’s Elections Clause and Article II’s Presidential Electors
Clause, gives to state legislatures the power to exclusively regulate federal elections, excluding state executive branch and judicial branch officials. This Court
is familiar with the theory’s most recent discourse in
Bush v. Gore, 531 U.S. 98, 103 (2000), when the Court
didn’t answer the first question on which it granted
2
At this stage, referring to “independent state legislature”
as a “doctrine” is pre-mature. “Doctrine” is defined as “a principle,
esp. a legal principle, that is widely adhered to.” Black’s Law Dictionary 518 (Bryan A. Garner, ed. 8th ed. West 2004). Because the
independent state legislature is not a widely adhered to legal
principle, “theory” or “theory of law” is a more appropriate descriptive term.
4
certiorari.3 While the majority, in a per curiam opinion,
found “standardless manual recounts” in Florida as
violating the Equal Protection Clause, the majority
found no need to reach the first question implicating
the independent state legislature theory put before the
Court. However, Chief Justice Rehnquist did address it
in a concurring opinion, joined by Justice Scalia and
Justice Thomas.
The concurrence concluded that “A significant departure from the legislative scheme for appointing
Presidential electors presents a federal question.” Id.
at 113. The concurrence reasoned that the question
presented a rare instance in which “the Constitution
imposes a duty or confers a power on a particular
branch of a State’s government”—that is, the state legislature—“the text of the election law itself, and not
just its interpretation by the courts of the States, takes
an independent significance.” Id. Although the Court
believed at the time that the Bush decision was good
for only that case, “Our consideration is limited to the
present circumstance,” id. at 109, the theory has been
revived because of events relating to the last presidential election.
Historically, there is no conclusive evidence that
the Founding Fathers, in presenting the Elections
3
“[W]hether the Florida Supreme Court established new
standards for resolving Presidential election contests, thereby violating U.S. Const. art. II, § 1, cl. 2, of the United States Constitution [which provides that electors shall be appointed by each
State ‘in such Manner as the Legislature thereof may direct’] and
failing to comply with 3 U.S.C. § 5.” Bush, 531 U.S. at 103.
5
Clause or Electors Clause, embraced a theory of a state
legislature without limitations, but, instead, a state
legislature with constitutional restraints and interbranch checks and balances. Meanwhile, if stare decisis plays a role, this Court in Arizona State Legislature,
affirmed that “legislature” as defined in the federal
Constitution, extends beyond the institutional body itself, referring to the state’s legislative powers. Arizona
State Legis. v. Arizona Indep. Redistricting Comm’n,
576 U.S. 787 (2015). Hence, the legislature is subject to
the checks and balances of the state court, the state
constitution, and where applicable, a governor’s veto.
Id. at 813–15; see id. at 808 (versus the ratifying role
legislatures play in constitutional amendments).
Whichever way this Court approaches the disposition or resolution of the applicability of the independent state legislature theory to this case, it must
consider its foundational context either in history or
existing law. Any confidence in this discourse and
disposition rests on identifying and considering the potential consequences of the result to the election process, if not existing law. That is why this amici curiae
brief addresses two related areas of law which involve
potential federal encroachments under the independent state legislature theory: Presidential Executive
Order No. 14019 and the Electoral Counting Act. Regardless, the issue of the independent state legislature
theory is squarely before the Court for the controversy
to be decided.
---------------------------------♦---------------------------------
6
STATEMENT
The petitioners seek review to resolve an issue regarding state congressional redistricting under the
U.S. Constitution, article I, § 4, clause 1, as to the manner of federal elections “prescribed by each State by the
Legislature thereof.” Pet. at 1. The North Carolina Supreme Court found the State’s legislature redistricting
map as unconstitutional gerrymandering under four
provisions of the State’s constitution. Id. at 9. The state
supreme court provided the State legislature an opportunity to submit a remedial congressional redistricting
map to the trial court. Id. at 9–11.
The trial court appointed Special Masters to evaluate the proposed remedial map, including one of their
own. Id. at 12. The trial court rejected the legislature’s
remedial congressional map and adopted the map created by the Special Masters. Id. The petitioners then
sought from the state supreme court a stay or writ of
supersedeas arguing that the actions of the trial court
violated the Elections Clause. Id. at 13. The state supreme court denied the petitioners’ requests without
analysis. Id.
---------------------------------♦---------------------------------
7
ARGUMENT
I.
The independent state legislature theory
requires the resolution of the meaning of
“legislature” as applied to the Elections
Clause, but in the context of either historical or legal precedent.
Under the constitutional arguments called the “independent state legislature” theory, which is disputed,
certain provisions in the U.S. Constitution may grant
each respective state legislature with sole plenary authority over subject matters in their respective states
which federal and state law cannot abridge. The proposed independent state legislature theory basically
provides that when the U.S. Constitution grants federal authority to “state legislatures,” no other body or
law can interfere with the state legislature’s authority.
For example, the Constitution delegates to “state legislatures” power over federal elections, Presidential
electors and constitutional amendments. In turn, the
President, Congress, and the federal agencies cannot
interfere with the state legislature’s constitutionallydelegated power. And, additionally, the state’s own constitution, the state’s courts, nor the state’s governor
can interfere with the state legislature’s authority. The
U.S. Supreme Court cases cited for the independent
state legislature theory include McPherson v. Blacker,
146 U.S. 1, 27 (1892) (“The constitution. . . . leaves it to
the legislature exclusively[.]”) and Bush v. Palm Beach
Cnty. Canvassing Bd., 531 U.S. 70, 76 (2000) (concurring opinion).
8
More recently, a Supreme Court dissenting opinion discussed the independent state legislature theory
in Arizona State Legis. v. Arizona Indep. Redistricting
Comm’n, 576 U.S. 787, 824–25 (2015). In Arizona State
Legislature, the U.S. Constitution requires the “state
legislature” to draw up new congressional districts in
each state every ten years after the completion of the
census. The State of Arizona by popular referendum
created an independent commission to draw up new
congressional districts every year rather than the
state legislature. The Arizona State Legislature sued
claiming the independent state legislature theory prohibited the new independent commission from drawing these new districts as opposed to the Arizona State
Legislature.
This Court disagreed in a 5-4 decision. The dissent
pointed out that the majority must not believe in the
necessity of the Seventeenth Amendment that transferred the power to choose U.S. Senators from “the
Legislature” from each State to “the people thereof.”
According to the majority’s view, the Seventeenth
Amendment must have been unnecessary because the
term “Legislature” actually means “the people”:
What chumps! Didn’t they realize that all
they had to do was interpret the constitutional term “the Legislature” to mean “the
people”? The Court today performs just such
a magic trick with the Elections Clause. Art.
I, § 4. That Clause vests congressional redistricting authority in “the Legislature” of each
State. An Arizona ballot initiative transferred
9
that authority from “the Legislature” to an
“Independent Redistricting Commission.” The
majority approves this deliberate constitutional evasion by doing what the proponents
of the Seventeenth Amendment dared not: revising “the Legislature” to mean “the people.”
Arizona State Legis., 576 U.S. at 824–25.
Chief Justice Roberts, cited this Court’s decision
in McPherson v. Blacker, 146 U.S. 1 (1892) in his dissent in Arizona State Legislature to conclude that
“state legislature” meant the legislature itself and subject to no other authority. The Court upheld the law
and emphasized that the plain text of the Presidential
Electors Clause vests the power to determine the manner of appointment in “the Legislature” of the State.
That power, the Court explained, “can neither be taken
away nor abdicated.” Arizona State Legis., 576 U.S. at
840 (Roberts, C.J., dissenting), quoting McPherson, 146
U.S. at 35 (emphasis added). But, he also explained
that there is “a critical difference between allowing a
State to supplement the legislature’s role in the legislative process and permitting the State to supplant the
legislature altogether” and that “imposing some restraints on the legislature “does not “justif[y] deposing
it entirely.” Arizona State Legis., 576 U.S. at 841 (original emphasis).
Just two years ago, the U.S. Court of Appeals for
the Eighth Circuit, relying on McPherson and Bush v.
Palm Beach Cnty. Canvassing Bd., 531 U.S. 70 (2000),
applied the independent state legislature theory to the
Electors Clause under Article II. The appellate court,
10
determined that an injunction be issued against the
Minnesota Secretary of State enjoining the Secretary
from changing election mail-in ballot deadlines due to
the COVID pandemic. The court concluded that the
Secretary had no authority to override exclusive legislative authority regarding the manner of conducting
presidential elections regarding the selection of electors finding the analysis relatively straight forward:
“By its plain terms, the Electors Clause vests the
power to determine the manner of selecting electors
exclusively in the ‘Legislature’ of each state. U.S.
Const. art. II, § 1, cl. 2; McPherson v. Blacker, 146 U.S.
1, 27, 13 S.Ct. 3, 36 L.Ed. 869 (1892) (‘The constitution. . . . leaves it to the legislature exclusively[.]’).”
Carson, 978 F.3d at 1059–60. “[W]hen a state legislature enacts statutes governing presidential elections,
it operates “by virtue of a direct grant of authority” under the United States Constitution. Bush v. Palm
Beach Cnty. Canvassing Bd., 531 U.S. 70, 76, 121 S.Ct.
471, 148 L.Ed.2d 366 (2000). In fact, a legislature’s
power in this area is such that it “cannot be taken from
them or modified” even through “their state constitutions.” McPherson, 146 U.S. at 35, 13 S.Ct. 3; see also
Palm Beach, 531 U.S. at 76–77, 121 S.Ct. 471.” Id., 978
F.3d at 1060.
However, there appears to be at least some contrary historical evidence. The Founding generation
may have intended, based upon the experience derived
from the Articles of Confederation, that the word “legislatures” found in the Elections Clause or Electors
Clause was not to be so “exclusive,” but would be
11
subject to “substantive state constitutional restrictions
as well as constitutionally-mandated lawmaking procedures.” Hayward H. Smith, Revisiting the History of
the Independent State Legislature Doctrine, 53 ST.
MARY’S L. J. 445, 447 (2022). In fact, some lateradopted state constitutions do contain restrictions on
election laws, including federal elections, as well as
that of the general populace. See, e.g., id. at 485–91.
“[U]nder the Articles of Confederation, it was understood that “legislatures’ were normal legislatures, subject to substantive regulation by state constitutions.
The Framers knew this when they gathered in 1787.”
Id. at 482, 484–85.
In other words, the independent state legislature
theory is disputed as an unequivocal part of the Founding of this nation through the adoption of the U.S. Constitution. See also Michael T. Morley, The Independent
State Legislature Doctrine, Federal Elections, and State
Constitutions, 55 GA. L. REV. 1, 27–37 (2020) (discussing that the Framers neither expressly considered the
independent state legislature theory nor addressed the
potential significance of the term “legislature” in either
the Elections Clause or the Electors Clause). So, academia remains in conflict on the theory and its originations. See, e.g., Robert A. Schapiro, Conceptions and
Misconceptions of State Constitutional Law in Bush v.
Gore, 29 Fla. St. U.L. Rev. 661, 672 (2001) (doctrine
“does not rest on firm foundations of text, precedent, or
history.”); Hayward H. Smith, History of Article II Independent State Legislature Doctrine, 29 Fla. St. U.L.
Rev. 731, 764–75 (2001) (arguing lack of historical
12
foundation for the independent state legislature theory); see also Richard H. Pildes, Judging “New Law” in
Election Disputes, 29 Fla. St. U.L. Rev. 691, 727–28
(2001) (accepting Smith’s conclusion that, “as a matter
of historical practice, state legislatures were not understood at the time to be more ‘independent’.”); State
Constitutions, 55 Ga. L. Rev. 1, 27–32 (2020). (Because
the history of the Elections Clause of Article II of the
constraints and conditions on their power than they
were when acting pursuant to any other source of authority”); see contra Michael T. Morley, The Independent State Legislature Doctrine, Federal Elections, and
Electors Clause (the Electors Clause is “silent” regarding whether state constitutions can limit the authority
of state legislatures over federal elections, “[t]he only
definitive conclusion that can be drawn is that the
Framers specifically chose to vest power over federal
elections with institutional state legislatures, rather
than the people themselves”); Michael T. Morley, The
Intratextual Independent “Legislature” and the Elections Clause, 109 Northwestern U.L. Rev. 847, 863–65
(2015) (providing for an intratextual interpretation of
the term “legislature” as understood during the Founding Era).
Regardless, in 1932, this Court in Smily v. Holm,
285 U.S. 355 (1932), found the Elections Clause did not
confer legislative authority to enact “manner” legislation “independently of the participation of the Governor as required by the state constitution with respect
to the enactment of laws.” Id. at 373. As Justice Ginsburg wrote in Arizona State Legislature as referenced
13
above, “[n]othing in [the Elections] Clause instructs,
nor has this Court ever held, that a state legislature
may prescribe regulations . . . in defiance of provisions
of the State’s constitution.” Arizona State Legis., 576
U.S. at 791.
However, this Court has signaled its willingness to
reconsider precedent in this historical context. As Justice Gorsuch wrote in Democratic Nat’l Comm. v. Wisconsin State Legislature, 141 S.Ct. 28, 29 (2020)
(Gorsuch, J., concurring), “The Constitution provides
that state legislatures—not federal judges, not state
judges, not state governors, not other state officials—
bear primary responsibility for setting election rules.”
And in a concurring opinion, Justice Kavanuagh, favorably citing Chief Justice Rehnquist’s concurrence in
Bush v. Gore, wrote, “[T]he text of the Constitution requires federal courts to ensure that state courts do not
rewrite state election laws.” Id. at 34 n.1 (Kavanaugh,
J., concurring).
However this Court resolves the present dispute,
the interpretation of “legislature” within the meaning
of the Elections Clause will reverberate throughout
the country and affect the “manner” in which federal
elections will be conducted under state election laws.
Is the state legislature an entity unto itself under the
Elections Clause? Is there oversight of a state constitution or other legal processes? Is the state legislature’s authority subject to checks and balances of the
court? Is the state legislature’s authority subject to a
governor’s veto? By answering these questions, the
14
Court will resolve whether the legal theory of independent state legislature theory is a doctrine.
II.
If the Independent State Legislature applies, Executive Order No. 14019 is constitutionally suspect as the President has
encroached on state legislative prerogatives.
If this Court adopts the independent state legislature theory as doctrine, Executive Order No. 14019 of
March 7, 2021 (EO) is constitutionally suspect. The
Elections and Electors Clause of the United States
Constitution delegates the authority over election administration, inclusive of voter registration, in federal
elections to the Legislatures of the States subject to
Congressionally-enacted laws relating to Congressional elections. Contrary to this constitutional delegation, the EO authorized the federal agencies to engage
in election administration, including voter registration, within the states without a specific Congressionally-enacted law to do so. Therefore, under the
independent state legislature theory, a state legislature may bring an action in federal court requesting
the Court to (a) declare that the EO is unconstitutional
to the extent it removes authority from the state legislature over election administration, including voter
registration, in federal elections within the boundaries
of the state, and (b) enjoin the prospective defendantparties from enforcing or implementing any aspect of
the EO within the boundaries of the state.
15
The United States Constitution mandates that the
times, places, and manner of congressional elections
“shall be prescribed in each State by the Legislature
thereof but the Congress may at any time by Law make
or alter such Regulations . . . ” U.S. Const. art. I, § 4,
cl. 1 (the “Elections Clause”). The United States Constitution mandates that Presidential Electors are appointed at the direction of the Legislature: “Each State
shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors, equal to the
whole Number of Senators and Representatives to
which the State may be entitled in the Congress. . . .”
U.S. Const. art. II, § 1, cl. 2 (the “Electors Clause”).
President Biden signed Executive Order (“EO”)
14019 of March 7, 2021, titled “Promoting Access to
Voting.” 86 FR 13623. Under the proposed independent
state legislature theory, the EO raises serious constitutional concerns for state legislatures. First, the EO
commands the head of every federal agency to submit
to the President’s Domestic Policy Advisor, a plan outlining the steps their agency will take to “promote
voter registration and voter participation.” Second, the
EO mandates that all federal agencies support “approved” third-party organizations to provide voter registration services on federal agency premises located
in states across the nation. So, the federal agencies are
to provide financial and logistical assistance to “approved” nonpartisan third-party organizations engaging in get-out-the-vote efforts. Third, the EO reflects
a planning initiative for “increasing voter . . . turnout
in Native American communities.” Notably, no
16
communities other than Native American communities are targeted in the EO for increasing “voter turnout.”
Under the EO, federal agencies are instructed to
use their current infrastructure, activities, services,
and resources to help distribute voter registration and
vote-by-mail application forms, assist applicants in filling out those forms, and invite and support approved
third-party organizations to provide voter services on
federal agency premises. Distributing forms and helping voters may sound benign, but if the service and
support is not provided equitably to all legal voters
across the political spectrum, then the government is
tilting the election in favor of the President and his incumbent party—something the Elections Clause and
Electors Clause was intended to prevent and something the Equal Protection Clause prohibits.
Despite the EO’s position to the contrary, current
Congressional enactments only authorize certain federal agencies such as the Department of Justice to enforce federal voting laws and to engage in electionrelated activities. Otherwise, federal agencies do not
have Congressional enactments authorizing engagement to enforce federal voting laws or to engage in election-related activities. Therefore, the EO commanding
every federal agency to develop a plan to engage in
these kinds of election-related activities, without a
Congressional enactment specifically authorizing such
agencies to engage in such election-related activities,
is a possible violation of the Elections Clause and
17
Electors Clause—if the independent state legislature
theory is adopted by this Court.
III. If the independent state legislature theory
applies, the Electoral Count Act is constitutionally suspect.
If this Court adopts the independent state legislature theory as doctrine, the Electoral Count Act, specifically 3 U.S.C. § 15, is constitutionally suspect.
Under the constitutional arguments called the “independent state legislature doctrine,” Article II grants
each respective state legislature with sole plenary authority to determine the appointment of Presidential
Electors which federal and state law cannot abridge.
The independent state legislature doctrine basically
provides that when the U.S. Constitution grants authority to “state legislatures,” no other body or law can
interfere with the state legislature’s authority. Neither
the state’s own constitution, the state’s courts, nor the
state’s governor can interfere with state legislature’s
authority under Article II. The U.S. Supreme Court
cases cited for the independent state legislature doctrine to apply to Article II include McPherson v.
Blacker, 146 U.S. 1, 27 (1892) (“The constitution. . . .
leaves it to the legislature exclusively[.]”) and Bush v.
Palm Beach Cnty. Canvassing Bd., 531 U.S. 70, 76
(2000) in the concurring opinion.
Statute 3 U.S.C. § 15 authorizes Congress to do
more than count the electoral votes as Article II requires. Rather, the Electoral Count Act authorizes
18
Congress to object, debate, and reject votes of a State’s
Presidential Electors. To date, there has been no court
decision upholding the constitutionality of 3 U.S.C.
§ 15. Consistently, the U.S. Supreme Court cases of
McPherson (“The constitution. . . . leaves it to the legislature exclusively[.]”) and Bush, and the Eighth Circuit decision in Carson support that 3 U.S.C. § 15 is
unconstitutional as violating the state legislatures’ Article II prerogatives over Presidential Electors. See
Vasen Kesavan, Is the Electoral Count Act Unconstitutional, 80 N.C. L. Rev. 1653 (2002) (reaching the conclusion of unconstitutionality of the statute based upon
the history of the electoral college and other legal authorities, particularly Article II of the U.S. Constitution). The following cases support textual and
structural arguments that the state legislatures have
plenary authority regarding Presidential Electors:
McPherson, 146 U.S. at 27 (“The constitution. . . .
leaves it to the legislature exclusively[.]”); Bush, 531
U.S. at 76; and Carson. Additionally, the dissenting
opinion in Arizona State Legis., 135 S.Ct. at 268 supports the independent state legislature doctrine applying in an Article II context.
Two legal standards cover cases challenging Congress’ constitutional authority to enact statutes. The
first legal standard is that Congress can only enact
laws which are constitutionally authorized. This legal
standard applies when the party claims an act of Congress is not constitutionally authorized by one of the
powers delegated to Congress in Article I of the
19
Constitution. See, e.g., Perez v. United States, 402 U.S.
146 (1971); McCulloch v. Maryland, 17 U.S. 316
(1819).
The second legal standard is that Congress cannot
enact laws which violate state sovereignty preserved
in the Constitution. This legal standard applies when
the party claims an act of Congress invades the province of state sovereignty granted by an express constitutional provision or reserved by the Tenth
Amendment. “If a power is delegated to Congress in
the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a
power is an attribute of state sovereignty reserved by
the Tenth Amendment, it is necessarily a power the
Constitution has not conferred on Congress.” New York
v. U.S., 505 U.S. 144, 156 (1992) (citations omitted). It
is in this sense that the Tenth Amendment “states but
a truism that all is retained which has not been surrendered.” United States v. Darby, 312 U.S. 100, 124
(1941).
Hence, under the independent state legislature
theory, 3 U.S.C. § 15 is both constitutionally unauthorized and invades each respective state legislature’s
power to certify Presidential votes and Presidential
Electors granted by Article II and reserved by the
Tenth Amendment:
. . . the two Houses [of Congress] concurrently may reject the vote or votes when they
agree that such vote or votes have not been so
20
regularly given by electors whose appointment has been so certified. . . .
3 U.S.C. § 15.
Because Article II grants the state legislature the
sole and plenary power to direct the appointment of
Presidential Electors, Congress has no constitutional
authority to enact 3 U.S.C. § 15 depriving the state legislature of the constitutionally-granted authority to
approve the Presidential Electors. Second, 3 U.S.C.
§ 15 authorizes the “two Houses” to invade the state
legislatures’ exclusive power to appoint Presidential
Electors by allowing individual congresspersons to object to a State’s Presidential Electors and allowing
Congress to actually reject a State’s Presidential Electors.
The textualist argument in support of the state
legislature’s plenary authority over approval of Presidential Electors is based on the following one sentence
in Article II of the U.S. Constitution:
Each state shall appoint, in such manner as
the Legislature thereof may direct, a number
of electors, equal to the whole number of Senators and Representatives to which the State
may be entitled in the Congress. . . .
The key clause empowering state legislatures to
“appoint” Presidential Electors is “in such manner as
the Legislature thereof may direct.” Supporters of the
independent state legislature theory claim, based on
this clause, that approval of Presidential votes and approval of Presidential Electors are exclusively state
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legislative decisions. In turn, the independent state
legislature theory supporters would claim that 3 U.S.C.
§ 15 and related laws encroaching, every four years,
on these state legislative prerogatives are unconstitutional.
The plain meaning of the text is consistent with
their arguments. The constitutional phrase is an imperative: the state legislatures has the power to direct the appointment of Presidential Electors. The
“state” appoints the Presidential Electors and “the legislature may “direct” the “manner” of the appointment. Supporters of the independent state legislature
theory would claim that it is this aspect of the constitutional text that is violated when the challenged federal and state laws legally preclude state legislative
approval of Presidential votes and of Presidential
Electors. In other words, every four years, “the legislature must be involved in such approvals so that it may
‘direct’ the ‘manner’ of ‘appoint[ing]’ of the Presidential
Electors—as the constitutional imperative sentence
requires.”
Moreover, under a textualist’s reading, the Constitution’s text supports the unconstitutionality of 3
U.S.C. § 15 because it fails to guarantee voter’s rights
to their respective states’ approvals of Presidential
votes and of Presidential Electors to vote for President
and Vice President. Congress neither has express constitutional authority nor implied constitutional authority to enact 3 U.S.C. § 15. Article II puts state
appointment of Presidential Electors in the exclusive
hands of the state legislatures every four years, “[e]ach
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state shall appoint, in such manner as the Legislature
thereof may direct.” By contrast, Article II lacks the
express grant of authority to Congress found in Article
I’s Elections Clause for Congressional elections. Article
I thus grants great power to Congress with respect
to the elections of congressional representatives and
senators—i.e., the Constitution provides a power to
Congress “to make or alter such [state] Regulations.”
However, this Constitutionally-conferred power to
Congress is absent in Article II.
Similarly, Article I, section 5 also establishes
that Congress shall be the judge of the elections of
its own members: “Each House shall be the judge of
the elections, returns and qualifications of its own
members. . . .” Article II lacks a similar clause empowering Congress to be the “judge” of state appointment of Presidential Electors. Further, Article II
excludes the Senate from any role in the Presidential
election process. Article II does not authorize Congress
to include the Senate in the Presidential election process under 3 U.S.C. § 15.
Lacking express constitutional authority in Article II’s imperative sentence regarding Presidential
elections, the only alternative for Congressional authority is an implied constitutional authority. However,
such implied authority is also lacking. The only candidates for the government’s implied constitutional authority would be Article I’s Necessary and Proper
Clause and Article II itself. As to the Necessary and
Proper Clause, “Congress possesses only limited powers; the States and the people retain the remainder.
23
The States have broad authority to enact legislation
for the public good—what we have often called a ‘police
power.’ ” Bond v. U.S., 134 S.Ct. 2077, 2086 (2014). Congress, by contrast, has no such general authority and
“can exercise only the powers granted to it,” McCulloch, 17 U.S. at 405, including the power to make “all
Laws which shall be necessary and proper for carrying
into Execution” the enumerated powers, U.S. Const.
art. I, § 8, cl. 18. “Of course, as Chief Justice Marshall
stated, a federal statute, in addition to being authorized by art. I, § 8, must also ‘not [be] prohibited’ by the
Constitution.” U.S. v. Comstock, 130 S.Ct. 1949, 1957
(2010), quoting McCulloch, supra, at 421.
Article II itself also fails to support a constitutional authority for Congress to enact 3 U.S.C. § 15. Article II states that it is the state legislatures’ exclusive
constitutional prerogative to determine the state’s appointment of Presidential Electors, including approval
of the Presidential Electors to vote for President and
Vice President. Article II’s imperative sentence regarding Presidential elections and the Twelfth Amendment
do not grant Congress any “power” over the state legislatures’ constitutional prerogatives over Presidential
Electors. Instead, these constitutional texts define a
very limited and specific role for the Vice President,
U.S. Senate and U.S. House of Representatives.
For example, Congress’ enactment of 3 U.S.C. § 15,
creating a process for Congressional objections to
reject a State’s Presidential Elector votes, goes far
beyond the constitutionally-prescribed roles for Vice
President, U.S. Senate and the U.S. House of
24
Representatives in Article II and the Twelfth Amendment. In violation of Article II, 3 U.S.C. § 15 sets up a
process for Congress to object and reject Presidential
Elector votes—which is more than just counting the
legislatively-approved Presidential Electors wherein,
“the two Houses concurrently may reject the vote or
votes when they agree that such vote or votes have not
been so regularly given by electors whose appointment
has been so certified.” Congress’ statutory enactment
of this process for objecting-and-rejecting a State’s
Presidential Electors is inconsistent with Article II
and any implied constitutional authority thereunder.
Additionally, there is a textualist argument based
on the negative implication. When the Constitution
provides Congressional power regarding the Presidency, it says so—twice. First, Article II, Section 1,
Clause 4 which provides that “[t]he Congress may determine the Time of chusing the Electors, and the Day
on which they shall give their Votes; which Day shall
be the same throughout the United States.” Second,
the Presidential Succession Clause of Article II provides for the removal of the President from office,
death, resignation, or inability to discharge his or her
powers in which Congress may provide by law for such
instances and whom shall take his or her place if either
act occurs.
In both of these instances, the Constitution provides Congress with express authority over a limited,
narrowly-prescribed aspect of the Presidency. By
negative implication, Article II’s imperative sentence
regarding Presidential elections and selection of
25
Presidential Electors every four years does not provide implied constitutional authority for Congress to
object-and-reject the state legislatures’ approvals of
Presidential votes and of Presidential Electors.
Finally, the text of the Constitution also provides
an intertextual argument. When the Constitution provides a Congressional role in election, the Constitution
says so. First, Article I’s Elections Clause provides that
“[t]he 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, except as to the Places of chusing Senators.”
Second, The House Judging Clause provides that
“[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” In both
instances, the Constitution provides Congress with express constitutional authority regarding elections involving Congress. However, regarding Presidential
Electors, there is constitutional silence—no express
power is granted to Congress—because Article II empowers the state legislatures, exclusively, to govern the
states’ appointments of Presidential Electors.
The interpretivist’s structuralist arguments also
support the unconstitutionality of 3 U.S.C. § 15. See
generally Kesavan at 1759–93. Under this approach,
interpretation requires drawing inferences from the
design and structure of the Constitution:
Another mode of constitutional interpretation
draws inferences from the design of the
26
Constitution: the relationships among the
three branches of the federal government
(commonly called separation of powers); the
relationship between the federal and state
governments (known as federalism); and the
relationship between the government and the
people.
Ex. O, Brandon J. Murrill, Modes of Constitutional Interpretation, Congressional Research Service (Mar. 15,
2018) at 2. The structure of Article II is to empower the
state legislatures, not Congress or the state’s Governors, to appoint the Presidential Electors. 3 U.S.C. § 15
violates Article II’s structure because 3 U.S.C. § 15
empowers Congress and the state’s Governors in the
Presidential Elector process—excluding the state legislatures, in large part, from the Presidential Elector
approval process.
The structure of the Article II for Presidential elections solely empowers state legislatures and not Congress, its members or state Governors. Article II’s
imperative sentence regarding Presidential elections
puts the state legislatures in exclusive control of a
state’s appointment of Presidential Electors. The state
legislatures, who enact the state elections law applicable to federal elections, are identified to choose the
manner of appointment of the Presidential Electors.
Under Article II, Congress and the Governors are
to have no substantive role in the procedures of approving Presidential Electors to vote for President
and Vice President. Under Article II, the Federal Defendants are just there to count the Presidential
27
Electors’ votes of the Presidential Electors who have
received state legislative certification; 3 U.S.C. § 15
and related federal law authorizing Congress to object
and reject a State’s Presidential Elector votes violate
Article II.
The Constitution mistrusts Congress in Presidential elections. This is the anti-Congress/anti-Senate
principles of Article II. Congress is to have a limited,
narrowly-prescribed role in Presidential elections.
Congress is not to interfere with the state legislature
directing the appointment of Presidential Electors.
Congress is not trusted in Article II.
Article II’s electoral college method of selecting a
President and Vice President is a rejection of Congressional decision-making. The Constitution replaced the
Articles of Confederation which authorized Congress
to elect a President of the United States in Congress
Assembled—parliamentary style. Under the Articles of
Confederation, John Hanson was the first President of
the United States in Congress Assembled and served
from November 5, 1781 to November 4, 1782. The Constitution replaced that parliamentary system with the
Electoral College in Article II which gives Congress no
role in selecting the President. Alexander Hamilton in
Federalist Papers, No. 68, on “The Mode of Electing the
President” (1788) referred to this as a “sinister bias.”
Similarly, Joseph Story in his Commentaries on
the Constitution (1833) stated that Article II was to
protect against Congressional dangers of cabal, intrigue and corruption and against pre-existing bodies
28
being tampered with beforehand to prostitute their
vote: “The same circumstances would naturally lessen
the dangers of cabal, intrigue and corruption, especially if congress, should, as they undoubtedly would,
prescribe the same day for the choice of electors, and
for giving their votes throughout the United States.
The scheme, indeed, presents every reasonable guard
against these fatal evils to republican governments.
The appointment of the president is not to depend
upon any pre-existing body of Men, who might be tampered with beforehand to prostitute their votes, but is
delegated to persons chosen by the immediate act of
the people, for that sole and temporary purpose.” Commentaries on the Constitution, §1451.
The Senate was to have no role in the selection of
the President whatsoever. In Federalist No. 66, Alexander Hamilton explained that the House received
powers related to Presidential elections in the event of
a candidate does not receive a majority of the votes of
the Presidential electors because the Senate received
other powers: “The same house will be the umpire in
all elections of the President which do not unite the
suffrages of a majority of the whole number of electors;
a case which it cannot be doubted will sometimes, if not
frequently, happen. The constant possibility of the
thing must be a fruitful source of influence to that
body.” Federalist No. 66.
St. George Tucker, in his “American Blackstone,”
explained the rationale for excluding the Senate from
the Presidential election process as “founded upon the
wisest policy” as concerns lie with presumption of
29
undue influence, “where the contest might be between
a president in office, and any other person, would be
altogether unavoidable.” See St. George Tucker, Blackstone’s Commentaries with notes of reference to the
Constitution and Laws of the Federal Government of
the United States and of the Commonwealth of Virginia at 328 (1803).
Article II’s Elector Incompatibility Clause, stating
that “no Senator or Representative, or Person holding
an Office or Trust of Profit under the United States,
shall be appointed as an Elector,” is also a rejection of
Congressional decision-making. The relevant purpose
of the Elector Incompatibility Clause is to absolutely
separate the Presidential Electors from Congress. The
Presidential Electors are to be independent from Congress. Joseph Story stated that this Elector Incompatibility Clause was intended to preclude Congressional
members from exerting official influence on the electoral college and to avoid any Congressional bias or
impartiality on the electoral college, Commentaries
§ 1467. One cannot imagine any greater influence than
the power to reject electors.
The Constitution mistrusts Governors and state
executive branch officials in Presidential elections. The
state’s executive branch officials are to have no role in
Presidential selection. Article II’s electoral college
method of selecting a President and Vice President
empowers the state legislatures, not the state’s executive branch officials. As the Eighth Circuit recently
held under Article II that a state executive branch official cannot take away a state legislature’s power over
30
Presidential elections. Carson v. Simon, 978 F.3d 1051,
1059–60 (8th Cir. 2020).
Further, Article II’s imperative sentence regarding
Presidential elections specifies “state legislatures”—
not Governors nor “state executives”—to have the
power over the appointment of Electors, “Each State
shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors, equal to the
whole Number of Senators and Representatives to
which the State may be entitled in the Congress. . . .”
Thus, one of the purposes of Article II’s imperative
sentence regarding Presidential elections was to exclude the states’ Governors from having a role in
Presidential elections—including approving the Presidential Electors.
Further, the Electors Clause specifies that the
Presidential Electors are to vote in their states and the
Vice President and Congress, not the State’s Governors, would open and count the Presidential Electors’
ballots for President and Vice President.
The Constitution trusts state legislatures in Presidential elections. The state legislatures, not Congress
nor the states’ Governors, are to direct the selection of
Presidential Electors. Article II trusts state legislatures to choose Presidential Electors—even trusting
them to directly elect them as was done by some state
in the 1800s. See, e.g., Georgia Constitution of 1798,
Art. IV, § 2 at 12. Article II empowers “state legislatures”—regarding Presidential elections not Congress,
31
nor the States’ executives—to have the power over the
appointment of Presidential Electors.
Likewise, the Electors Clause specifies that the
Presidential Electors are to vote in their states and
specifies the Vice President and Congress will have
limited, defined roles of opening and counting the Presidential Electors’ ballots for the election of President
and Vice President.
Hence, one of the purposes of the Electors Clause
was to limit and define the Vice President’s and Congress’ role in the Electoral College process to ensure
that the state legislature, not Congress, would have
the exclusive power to appoint the Presidential Electors. In short, structuralist arguments under the independent state legislature theory, based on Article II,
show the unconstitutionality of 3 U.S.C. § 15. Article II
contains an anti-Congress/anti-Senate principle, an
anti-Governors principle and a pro-state legislature
principle. The structure of Article II is to empower the
state legislatures, not Congress, nor the Governors (or
other state executive branch officials), to appoint or approve the Presidential Electors. Therefore, 3 U.S.C.
§ 15 violates Article II’s structure because it unconstitutionally empowers Congress, includes the Senate,
and involves the state’s executives in the Presidential
Elector approval and counting process—every four
years. The result is unconstitutional because it cancels
the state legislatures out of the Presidential Elector
approval process.
---------------------------------♦---------------------------------
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CONCLUSION
The Court’s decision in resolving the applicability
of the independent state legislature theory has consequences beyond this case. The resolution of the question presented should take into account the theory’s
effect on related subject areas including purported
federal encroachments. The purported federal encroachments examined here, under the independent
state legislature theory are Presidential Executive
Order No. 14019 and the Electoral Count Act.
Respectfully submitted,
ERICK G. KAARDAL
MOHRMAN, KAARDAL & ERICKSON, P.A.
Special Counsel to
THOMAS MORE SOCIETY
150 South Fifth Street, Suite 3100
Minneapolis, Minnesota 55402
Telephone: 612-341-1074
Email: kaardal@mklaw.com
Attorneys for Amici Curiae
Wisconsin Voter Alliance and
Pure Integrity Michigan Elections
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.