[EL] The Independent Legislature Doctrine, Round Two

[Marty Lederman]

It's important, I think, to identify the particular *variant *of the
so-called "independent legislature" issue raised in the NC case.  Here,
unlike in Pennsylvania, the N.C.. Elections Board did not assert (as far as
I know) that it was acting pursuant to the state *constitution*, but
instead that it was implementing discretionary authority for dealing with
emergencies that the NC legislature itself had delegated to the
Board--i.e., that it was acting *in accord with *legislative intent.  A
state court approved the consent decree instantiating that decision.  Judge
Wilkinson, in dissent, would have held that the federal courts can review
the Board's (and the state court's) reading of state statutory law when the
legislature's federal Article I and Article II powers are at issue--and he
thought the Board and state court had misread the delegation statute.

On Wed, Oct 21, 2020 at 6:55 AM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> The “Independent Legislature” Issue Might Be Back to the Supreme Court In
> Days
>
> Posted on October 21, 2020 3:52 am <https://electionlawblog.org/?p=117166> by
> Richard Pildes <https://electionlawblog.org/?author=7>
>
> After having just divided 4-4 on the PA case, which centered on the “independent
> legislature” constitutional issue
> <https://www.cnn.com/2020/10/20/opinions/john-roberts-country-before-politics-pildes/index.html>,
> the Court might soon be faced with that issue yet again. The en banc 4th
> Circuit split
> <https://assets.documentcloud.org/documents/7273830/10-20-20-Wise-v-Circosta-4th-Circuit.pdf>
> yesterday on precisely this issue — along with a number of other important
> ones.
>
> The NC Election Code permits absentee ballots to be received up to three
> days after Election Day. Ballots received later than that are not valid
> votes, under the Code. Following a lawsuit challenging this deadline, the
> NC Board of Elections entered into a consent decree in which it agreed to
> extend that deadline; under this decree, the Board agreed to treat ballots
> as valid votes if they were received up to nine days after Election Day.
>
> That poses the constitutional question that split the 4th Circuit: did the
> Board violate the federal constitutional question by changing the deadline
> the legislature had enacted into law. In particular, did the Board violate
> Art. I and Art. II of the Constitution because those provisions give “the
> legislature” the power to regulate national elections and the manner of
> choosing presidential electors.
>
> The “independent legislature” doctrine is now being litigated, or has been
> litigated, in several cases during this election cycle.
>
> If the NC legislature takes this case to the Court now, by seeking a stay,
> the Court might decide it’s too late in the day to act on that issue now,
> in which case the Court might simply decline to change the status quo.
>
> But one way or another, it now seems increasingly likely that the Court is
> going to end up addressing that issue, with all its implications
> <https://electionlawblog.org/?p=117040>, one day soon. That might be
> before the election, if the Court were to issue a stay, or after the
> election, when the Court would hear a case on the merits. But this issue is
> not going away.
>
>
>
>
>
> Best,
>
> Rick
>
>
>
> Richard H. Pildes
>
> Sudler Family Professor of Constitutional Law
>
> NYU School of Law
>
> 40 Washington Square So.
>
> NYC, NY 10014
>
> 347-886-6789
>
>
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-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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