The “Independent State Legislature Theory” (ISLT) incorrectly suggests that state legislatures are omnipotent in making the rules for federal elections. Jason Willick’s July 17 op-ed, “Liberals Better Compromise on Supreme Court Election Deal,” suggested a compromise with the ISLT. He cited Article I, Section 4 of the Constitution (the Election Clause) saying that the rules for federal elections “shall be prescribed in each State by the Legislature.” The next 14 words of the election clause state “but Congress may at any time, by law, make or modify these regulations.” The proceedings of the 1787 Constitutional Convention show that the framers unanimously approved of the federal reduction of state legislative power to set the rules for federal elections when they passed the Election Clause.
ISLT’s assertion of omnipotence also fails because state legislatures embodied governmental powers differently in 1787 than they do today. For example, under Virginia’s constitution at that time, the governor and judges were elected by the state legislature, but the 1851 and subsequent state constitutions give the people the direct power to elect the governor and judges as checks and balances on legislative powers. The roles of state legislatures have changed since 1787, and the checks and balances of social contracts incorporated into state constitutions must be considered in modern jurisprudence.
Mr. Willick was correct that the drafters did not want state legislatures to be redundant, but they placed the election clause in the context of respecting the will of the people, not the unlimited will of state legislators.
Patrick Merloe, Washington
The author is a member of the Advisory Council of the Network of Electoral Reformers.
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