The Supreme Court identified a reasonable outcome in Moore v. Harper (holding that state legislatures do not possess exclusive constitutional authority over redistricting decisions). But the majority opinion is a mishmash of previous precedent and conventional state practice. The Court’s reading of similar language regarding state legislative decision-making powers in different provisions of the U.S. Constitution remains a muddle of inconsistency.

The case concerns legal challenges in North Carolina courts to the North Carolina legislature’s congressional redistricting map. Congressional redistricting is a national-level responsibility given to state legislatures in Article 1, Section 4 of the U.S. Constitution. The text provides that 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 North Carolina legislature, advancing the “independent state legislature theory,” claimed that the constitutional text confers redistricting powers exclusively on state legislatures. If read this way—which is consistent with the way other similarly-worded constitutional texts are read (such as regarding state legislative ratification of constitutional amendments)—the North Carolina legislature’s redistricting map is constitutionally the final word on the matter and cannot be challenged in North Carolina courts. (It also means that governors have no power under the U.S. Constitution to veto redistricting legislation and that states cannot remove redistricting authority from legislatures and give that authority to specialized redistricting commissions.)

In rejecting the independent state legislature approach to this provision, the problem with the majority opinion is not that it reads “legislatures” in Article 1, Section 4 as a synecdoche for full state legislative processes (including executive vetoes and judicial review). After all, the reference to “Congress” in the very same sentence of the Constitution is read naturally as a synecdochical stand-in for the full national-level legislative process.

Rather the problem with the majority’s opinion is one of inconsistent interpretation of similar language across the Constitution. The Supreme Court provided the correct reading of Article 1, Section 4 in this case—or at least the most reasonable reading of this provision. But the majority ties itself into rhetorical knots trying to justify reading the same language differently in other parts of the Constitution.

The irony is that the Court has a long line of precedent in which it has read, and still reads, state-legislative authority in these other, similarly worded parts of the Constitution fully consistent with the most radical versions of independent state legislature theory. As such, the Court’s reasoning in Moore gives lie to so much of the hyperbolic commentary prior to the decision about how novel and radical the “independent state legislature theory” is.

It’s the majority’s attempt to justify its inconsistent reading of the same words in different parts of the Constitution that’s the problem with its opinion. To be sure, as Ralph Waldo Emerson’s quip goes, a foolish consistency is the hobgoblin of little minds. Nonetheless, the majority’s reasoning falls flat. Ultimately, it identifies little more than a proverbial “distinction without a difference.” There is little reason that constitutional delegation of national decision-making power to state legislatures should not be read uniformly across the Constitution, whether as an exclusive grant to state legislatures themselves, or, more reasonably, reading “legislatures” as a synecdoche for state legislative processes more generally.

State Legislative Decision-Making in the U.S. Constitution

To understand the Court’s seesaw interpretation of the role of state legislatures in the national Constitution, it is useful to canvas the various provisions that provide decision-making specifically for state legislatures. The several national constitutional provisions providing for state legislative participation in the national government are:

• The original version of Article I, section 3 that provided for state-legislative selection of U.S. Senators. (The election of U.S. Senators was of course subsequently changed to direct elections by the Seventeenth Amendment);
• Article I, section 4, the provision at issue in Moore v. Harper, in which state legislatures prescribe the time, manner, and place for selecting House members and Senators;
• Article I, section 8, in which Congress can assert exclusive legislation “over all places purchased” from within a state, with the proviso that the purchase must occur “with the consent” of the “legislature of the state”;
• Article II, section 1, which designates that state legislatures stipulate the manner of appointing presidential electors;
• Article IV, section 3, requiring that state legislatures consent when a state is formed by the “junction of two or more states, or parts of states”;
• Article IV, section 4, which allows U.S. national intervention in a state in a case of domestic violence “on application of the legislature, or of the executive (when the legislature cannot convene”;
• Article V, which provides for state-legislative ratification of constitutional amendments (as well as calling a constitutional convention “on application of the legislatures of two-thirds” of the states).

In Moore, the majority sought to distinguish by “function” the role of state legislatures and, subsequently, when state legislatures act alone (by way of implicit application of the independent-state-legislature theory) and when the constitutional reference to “legislature” is a synecdoche for the broader state law-making process.

In doing so, the Court focused on the functions specified in four constitutional provisions in particular: national purchases of land, ratification of constitutional amendments, electing U.S. Senators (prior to the adoption of the Seventeenth Amendment), and redistricting House districts as part of the state legislative charge to “prescribe” the “time, places, and manner of elections for U.S. Senators and Representatives.”

The majority argued in Moore:

[The] Hawke and Smiley [cases] delineated the various roles that the Constitution assigns to state legislatures. Legislatures act as “Consent[ing]” bodies when the Nation purchases land, Art. I, §8, cl. 17; as “Ratif[ying]” bodies when they agree to proposed Constitutional amendments, Art. V; and—prior to the passage of the Seventeenth Amendment—as “electoral” bodies when they choose United States Senators, Smiley, 285 U.S., at 365; see also Art. I, §3, cl. 1; Amdt. 17 (providing for the direct election of Senators). By fulfilling their constitutional duty to craft the rules governing federal elections, state legislatures do not consent, ratify, or elect—they make laws.

First, we should not pass over too quickly the Court’s high-toned version of the Sesame Street Song, “three of these things belong together, one of these things does not belong with the others”: The Court argues that in crafting “the rules governing federal elections,” state legislatures act differently than when they [1] consent to purchase (and exercise exclusive jurisdiction) over land in the states, [2] ratify constitutional amendments, and [3] when they chose U.S. Senators (prior to the ratification of the Seventeenth Amendment).

Of note here is that, according to the Court, in these three areas independent-state-legislature theory properly applies. It is only with respect to “the rules governing federal elections” that the theory does not hold.

This provides a corrective to some of the overwrought commentary on the application of independent-state-legislature theory to redistricting. For example, writing in the L.A. Times, UC-Berkley Law School Dean Erwin Chemerinsky asserted that the Independent state legislature theory “is a theory of recent vintage, never having been accepted in American history.”

There seems to be some disagreement in practice whether state legislative votes consenting to national land purchases should be listed among actions taken exclusively by state legislatures and, therefore, outside of the course of ordinary legislation.

Contrary to Chemerinsky’s assertion, not only has the theory long applied to these other provisions in the U.S. Constitution, other American courts “accepted” the theory in application to electoral rules as well. For example, in 1931 the Minnesota Supreme Court adopted the independent state legislature theory (albeit, without the title), holding that, in referring to state legislatures in Article 1, Section 4 of the U.S. Constitution, the drafters

made use of [the word “legislature”] in the ordinary sense with reference to the official body invested with the functions of making laws, the legislative body of the state, and that they did not intend to include the state’s chief executive as a part thereof. We would not be justified in construing the term as being used in its enlarged sense as meaning the state, or as meaning the lawmaking power of the state.

While the U.S. Supreme Court rejected the Minnesota court’s reading of the provision, the 1931 state decision shows that even with respect to the elections provision in the Constitution, the theory is neither of recent vintage nor without serious legal acceptance. A vast amount of the commentary decrying the “radicalness” of the independent-state-legislature theory was little more than a smokescreen for the fact that the commentators preferred that Democratic candidates win more elections in North Carolina and that Republican candidates win fewer. Their hyperbolic criticisms were partisan, not principled.

Is Only One of These Things Not Like the Others?

The making of laws, the majority argues in Moore, is qualitatively different—more complicated—than up or down votes on ratification, consent to national land purchases, or even the (presumably more complicated) choice among Senate candidates prior to the adoption of the Seventh Amendment. So making laws administering national elections, the Court concludes, should be treated differently than legislative action in these other areas.

Yet the distinctions are not as neat and tidy as the Court suggests they are.

First, there seems to be some disagreement in practice whether state legislative votes consenting to national land purchases should be listed among actions taken exclusively by state legislatures and, therefore, outside of the course of ordinary legislation.

Contrary to the majority’s inclusion of state legislative consent in Moore along with ratification and Senate elections (prior to the Seventeenth Amendment), the several cases and sources I consulted suggest that the “consent” function of state legislatures for national government land purchases is part of the ordinary state legislative processes rather than actions taken by state legislatures alone.

Several of the most-cited Supreme Court cases litigating federal jurisdiction of nationally-acquired land within states all identify state statutes—which, with their passage, are sent to the governor for approval—as the basis for consent rather than legislative resolution (as presumably would occur if legislative consent were provided without presentation to the governor for approval).

The 1885 case of Fort Leavenworth R. Co. v. Lowe cites Kansas session laws from 1874/1875 as the basis for state consent, and lists the consenting statute at issue in the case among ordinary statutes requiring gubernatorial approval. In contrast, legislative resolutions adopted during that session, actions that do not require gubernatorial approval, are listed separately in the volume from the statutes. So, too, “consent” for state land cessions to the national government seems to have been provided by ordinarily-adopted statutes in Silas Mason Co. v. Tax Commission (1937) and James v. Dravo Contracting Co. (1937).

More recently, the archived U.S. Department of Justice’s Criminal Resource Manual suggests as well that state consent does not derive exclusively from state legislative approval, but derives from ordinary statutory processes:

State consent to the exercise of Federal jurisdiction may be evidenced by a specific enactment or by general constitutional or statutory provision. Cession of jurisdiction by the state also requires acceptance by the United States. See Adams v. United States, 319 U.S. 312 (1943); Surplus Trading Co. v. Cook, 281 U.S. at 651-52. Whether or not the United States has jurisdiction is a Federal question. See Mason Co. v. Tax Commission, 302 U.S. at 197.

In contrast, while the Court in Moore cites Hawke (1920) and Smiley (1932) on the point that “consent” for national jurisdiction proceeds by exclusive approval by state legislatures, neither of those cases cites any precedential authority, or even provides any history, for the claim of exclusive legislative approval.

The upshot of noting the contrary authority on whether “consent” is provided by state legislatures independent of the ordinary state-legislative processes is not that it imperils the Court’s decision in Moore. Rather the seemingly-contradicting precedent undermines the strength of the Court’s rationale for its other precedents, which read independent state legislature theory into other provisions of the Constitution, not least the provision relating to ratification by the states of proposed constitutional amendments. After all, if the simple up-or-down decision to consent to Federal land purchases (and the assertion of exclusive national jurisdiction) occurs via ordinary state law-making processes, then the simplicity of up-or-down ratification decisions could also be called into question as a rationale justifying their exclusive commitment to traditional state legislatures.

It’s not only here, however, that the Court introduced problems in reading similar texts in the U.S. Constitution. The expansive discussion of “legislature” in the 2015 case, Arizona State Legislature v. Arizona Independent Redistricting Commission, a decision on which Moore draws heavily, also suggests in principle a way in which states might create mechanisms for state legislative ratification of constitutional amendments outside of a process confined to traditional state legislatures.

Plural Legislatures?

The topic of the “unitary executive” in the U.S. Constitution has been a topic of continuing and animated attention in recent decades. The “unitary executive” stands in contrast to the “plural executive” found in most state constitutions. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court’s expanded definition of state legislatures extraordinarily recognizes the power of states to create “plural legislatures,” undermining the basis for claiming in Moore that the ratification of U.S. constitutional amendments must occur exclusively through the action of traditionally-understood state legislatures.

To be clear, a “plural legislature” does not mean a bicameral legislature. Legislative bicameralism exists when two legislative bodies share legislative power; one chamber cannot legislate without the affirmative consent of the other chamber to the same proposed legislation.

In contrast, the state of Arizona, according to the Court, delegated the whole of legislative power in the state to (at least) two distinct legislative bodies, both of which are empowered to legislate for the state without the affirmative consent of the other body.

The majority summarized the competing arguments in the case this way:

The Arizona Legislature’s complaint alleged that “[t]he word ‘Legislature’ in the Elections Clause means [specifically and only] the representative body which makes the laws of the people”; so read, the Legislature urges, the Clause precludes resort to an independent commission, created by initiative, to accomplish redistricting. The AIRC responded that, for Elections Clause purposes, “the Legislature” is not confined to the elected representatives; rather, the term encompasses all legislative authority conferred by the State Constitution, including initiatives adopted by the people themselves. (emphasis added, citations removed)

The Court agreed with the argument in favor of the independent commission.

In doing so, the claim the Court upheld is that “the Legislature” can refer to the people themselves as well as to the traditionally-understood legislature. Both are able to adopt legislation independent of the immediate consent of the other body.

In fact, however, I suggest that Court implicitly went a step further in the Arizona case: The people of Arizona were not themselves exercising legislative authority in adopting a redistricting plan. “The people” did not themselves legislate in this case. Rather, the people of Arizona created yet another legislature—albeit, one of limited jurisdiction—the Redistricting Commission. The Redistricting Commission holds the people’s legislative authority over Redistricting decisions alone. It is the Redistricting Commission that legislates in this area, not the people. After all, since at least the late 1600s (when John Locke discussed the topic) it has been accepted that legislatures cannot delegate legislative authority to another institution that is not the legislature. See, for example, INS v. Chada (1983).

The Court majority in the Arizona case misses the upshot of its own argument by insisting that ratification of constitutional amendments is not, properly speaking, a legislative function. The issue in the case did not concern what is a legislative decision, it instead concerned what institution the state identifies as its Legislature (or, perhaps better now, as one of its Legislatures). Given the decision in Arizona, what prevents the people of a state from creating and naming what they call a state “Legislature” with responsibility limited to considering and voting on ratification of constitutional amendments proposed to the national constitution?

To be sure, I don’t expect the Court any time soon to overturn its long-held precedents holding that independent state legislature theory applies to legislative ratification of constitutional amendments even if it does not apply to state administration of national elections (or to state “consent” to national land purchases). Nonetheless, the Court’s constitutional jurisprudence is a mess as it pertains to interpreting the nature and scope of state-legislative participation in national governance. Moore v. Harper got the outcome right in this particular case, but unnecessarily doubled down on the muddled jurisprudence of state legislative participation in national governance.