Understanding the Independent State Legislature Theory; the 2000 Presidential Election Revisited

There is madness abroad in the way American elites think about their government and their institutions, the epicenter of which is an understanding (or misunderstanding) of the word ‘democracy’. Recently, an Atlantic Monthly staffer named Barton Gellman published an article — How Six States Could Overturn The 2024 Election — in which all the confusion and cognitive dissonance is encapsulated. The article is a critique of the ‘independent state legislature doctrine’, or ISL, i.e., the notion that Article I, Section 4, clause 1 and Article II, Section 1 (the Elections and Elector clauses of the United States Constitution) collectively entrust the procedures for the choice of Presidential exclusively to the legislatures of each State, and no other State institution or agency. Gellman, ignoring basic civics, creates a parade of horribles fallacy out of this, envisioning a scenario in which runaway Trumpian legislatures take absurd and bizarre actions in defiance of their own constitutions and common sense. Gellman characterizes this potential as ‘undemocratic’. Quite apart from the reality that legislative acts are the core energy of democracy, that they are democracy itself, Gellman’s touchingly naive faith that the electoral process is better entrusted to the judiciary or the executive is typical of the elitism that has become the scourge of the Democratic Party.

In fact, recent history provides a rip-snortin’ example of why the ISL Doctrine makes a good deal of sense. This would be the notorious controversy over the 2000 Presidential election, centering on the counts and recounts of the Florida vote. (Gellman, whose history is as myopic as his civics, chose to ignore this.) Gellman is incorrect to intimate that the ISL Doctrine is a comparatively recent fad. It actually was cited in two of the US Supreme Court cases that were issued in the case. It is entirely possible that academic interest in the ISL Doctrine began with concern about the way events in that developed, particularly the usurpation by the Florida Supreme Court of the entire election procedure.

A number of controversial judicial cases arose out of the confusion. However, to the extent possible, I’m going to avoid commenting on these or the underlying jurisprudence. This post is about the ISL Doctrine. In that context, let’s review events. As the whole world knows, the Presidential election of 2000 ended on November 7th, 2000, with the two candidates, George W. Bush and Albert (‘Al’) Gore, in a virtual deadlock. The outcome turned on the electoral college votes of Florida, in which the balloting showed Bush ahead by a few hundred votes — a true statistical tie. Florida had at that time an elaborate statutory scheme that governed elections and included provisions for contested and protested elections. (Ch. 97–106, Laws of Florida.) These provided plain vanilla procedures to contest and protest elections in a timely manner, with a great deal of authority entrusted to county election boards and the Secretary of State. Losing candidates could initiate a protest at the county level and had the right to a recount by right if the margin of victory was too thin.

Thes rights, however, were in the context of tabulation — correct counting of ballots on hand. In this context the statures did contain provisions that directed the boards to do their best to ascertain voter intent in the case of damaged or defective ballots. However, this had to do with recounting. Candidates did not have a right to have every vote counted. They did have a right to a correct count of the votes that could be counted, with some reasonable discretion granted to canvassing boards to determine which, if any, defective ballots should be included. The statutory scheme contained no provisions for correcting voter error as such. There was nothing unusual in the Florida statutes in that regard. It’s a nearly universal rule in the entire Western world and throughout history. Even in the most generous participatory democracy, individual citizens are entrusted with certain basic responsibilities. One of them is to furnish a ballot in good form to the polls. If the voter fails to do so, the ballot isn’t counted.

Even this modest discretion entrusted to local canvassing boards in Florida was sharply limited by the requirement that the vote tabulations, counted or recounted, be submitted to the Secretary of State of Florida within seven calendar days of the election. In the year 2000, that was November 14th. At that point, the losing candidate could choose to contest (as opposed to protest) the election, and conventional litigation might commence.

This would not do for Al Gore. In the context of the overriding goal — winning the election — the plum dumb statutory remedies provided little love. The problem with demanding a conventional recount was that the vote had been properly tabulated the first time. Thus, the statutory recount to which he was entitled resulted in miniscule changes that did not affect the outcome. Gore’s only chance lay in the possibility that an examination of the totality of the fouled ballots might produce enough margin in his favor to alter the result. That the Florida statutes did not provide any such remedy for a defeated candidate, that no challenge on that basis to an election result had ever been made in the United States (or anywhere else, to the best of my knowledge), did not deter him from mounting a challenge on that basis.

From the outset, Gore began phrasing his challenge to the result in moral language, the language of right, the implication that something was wrong because the fouled ballots hadn’t been tabulated. (They had been counted.) ‘Every vote should count’, was the mantra, confusing the term ‘vote’ with ‘ballot’, though they are not the same thing. Never mind that no one knew exactly how such ballots would be counted, never mind that there was no guidance from statute, administrative procedure, or case precedent. Above all, never mind that no such right exists, and the Florida statutes were beyond any rational legal attack.

Ah, beyond rational attack — therein lies the rub. They were beyond rational attack, but not beyond raw value judgments. The immensely partisan Florida Supreme Court (seven liberal Democrats) agreed with Gore’s contentions. In two epic decisions, one issued on November 21 and the other on December 8th, the Florida Supreme Court completely trashed the statutory scheme that had been in force in Florida for more than a century. The first decision obliterated the time limits set by the statutes, and in particular the requirement that the counties certify their vote tabulations by seven days after the polling (November 14th). The administrative authority entrusted to the Secretary of State was completely ignored. The second decision wiped out the discretion of the county canvassing Boards with respect to fouled ballots. They were now MANDATED to interpret all the fouled ballots statewide.

On what basis? What was the interpretative or Constitutional problem that justified the Florida court’s intervention?

Search me. I don’t know. No one does. I promised at the outset not to analyze the legal reasoning behind these decisions. But that’s an easy descent to avoid in these cases. There was no legal reasoning worthy of the name — simply a lot of declamation of the noble purposes of the Florida Constitution, the rights of man, the importance of democracy, and so on. But worse than that, there was not even a nod to practicality. The Court in its order on December 8th ascended into Cloud-Cuckoo-Land, that wonderful world of frictionless ball bearings that too many appellate courts inhabit. Some 60,000 plus suspect ballots were to be reviewed. By what standard? No one knew. The various Florida counties had used three different standards. The Court didn’t even try to choose between them. But somehow one would be selected, the ballots would be interpreted, all disputes were to be resolved (how? there was no procedure), and the results certified to the Federal authorities . . . all in five days. This wasn’t simply impractical. It was flat out impossible. Even more impossible is the notion that all this could be accomplished while preserving an audit trail, such that the result could be confirmed by independent analysis to a disappointed candidate.

What this exercise in judicial insanity would have produced, if left to stand, was the greatest cluster f — k in US history, worse than the elections of 1800, 1824, and 1872 combined. The recount on the incredible terms ordered by the Florida Supreme Court could not possibly have been completed by the date when results had to be certified to the Electoral College. (The Court actually implied a partial recount would do, as if the public or any candidate would accept that.) If Bush was not still in the lead, the Florida legislature would almost certainly have responded with the nomination of its own slate of electors. The near result would have been an unguided excursion through a jungle of untested statutes and regulations, without the North Star of any tradition or precedent to steer by. The ultimate result would have been a crippled Presidency no matter who ultimately took office. (Anyone interested in exploring the full dimensions of the chaos the Florida Supreme Court was inviting into the electoral process of a US Presidential election is invited to look up Richard Posner’s exhaustive — and exhausting — discussion of the subject in Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts [2001]).

I remember hearing Justice Sandra O’Connor, during the oral argument before the US Supreme Court concerning this mess, plaintively asking what was wrong with the old statutes? Why were we even doing this? A good question — in fact, the basic question, which leads us directly to the Independent State Legislature Doctrine. There was nothing wrong with the Florida statutes — no cognizable Constitutional challenge, no ambiguity, nothing. The only problem was the outcome. As much as the personal values of many activist judges lean otherwise, ‘I-think-I-know-better’ is not synonymous with ‘unconstitutional.’ (There is also a meta-legal principle — you do not change the election rules AFTER the ballots have been cast — that the Florida Supreme Court completely ignored.)

This naked seizure of power undertaken by the Florida Supreme Court violated the United States Constitution. That charter delegates the right and power to decide on the methods of selecting electors to the elected legislatures of the various States, and not the judiciary, which may not be elected by anybody. The Florida debacle could not illustrate the wisdom of the Constitution more concretely. Election procedures should be thoughtful, rational, simple, time-tested, and systematic — a statutory framework, in short. The essence of litigation, even in a court of final appeal, is doing justice to the individual litigants before the court. The creation of working systems of administrative law is a complex, practical task not consistent with the judicial function. That’s the reason why appellate courts should avoid making law.

Gelman in his article conjured up an entire parade of horrors that might be perpetrated by Trump-dominated legislatures seeking to ensure particular election results. (The notion that a Democratic dominated State Supreme Court could create its own spectrum of horror never occurred to him, even though that actually happened within recent memory.) Forgetting his basic civics, he conjures up a legislature that acts without any restraint of law at all. That’s nonsense. A state legislature takes its power from the state constitution that enables it. There’s a word for a group of men that acts as a body without the sanction of law. It’s called a mob.

So there is an inescapable role for the judiciary with respect to the Independent State Legislature Doctrine, all the parade-of-horribles nonsense to the contrary. The state court of last resort has the responsibility to resolve questions of law of either statutory or Constitutional dimension. That’s axiomatic. The legislature has to act legally and constitutionally, and the determination of those questions is left to the State courts. But, as the whole world knows, there is no bright line distinction between a restrained interpretation of Constitutional law, and a naked power grab. The big question is who makes that basic determination. That’s what would change by adoption of the Independent State Legislature Doctrine. The general rule of law is that a State court of final resortis the ultimate authority with respect to the laws of that State. But in this one unique instance, Article I, Section 4 clause 1, Article II, Section 1 (read collectively) and the Supremacy Clause of the United States Constitution confer ultimate power on the United States Supreme Court. A State Supreme Court that finds a state constitutional infirmity in the legislative scheme enacted by the legislature can and should exercise its authority to correct it. But it had better be damn sure that there actually is an infirmity and not a substitution of judicial wisdom — or partisan interest — for legislative. In the latter case, it might be reviewed and reversed by the United States Supreme Court.

That’s what should have happened with respect to the direct seizure of power undertaken by the Florida Supreme Court in 2000. The orders of that Court were twice reviewed by the United States Supreme Court. In the first case, which resulted in a simple remand, seven of the Justices alluded to the Independent State Legislature Doctrine. In the second case, the more famous one that ended the madness, three of the nine justices (Rehnquist, Scalia, and Thomas) would have vacated the order of the Florida Supreme Court on ISL grounds. Logically, that’s actually the way the case should have ended logically — vacate the absurd orders of the State Court on that basis, affirm the legitimacy of the statutory scheme that the lower court had arbitrarily trashed, direct the Secretary of State of Florida to perform the duties entrusted to her by statute, and go in peace. Everything ends logically, consistently, and on a sound Constitutional basis.

But events had moved rapidly, and a plurality of the Court was not ready to confront and overturn a legal principle as encrusted in tradition as the authority of a State Supreme Court over its State Constitution. Although seven Justices would have set aside the order of the Florida Supreme Court, the ultimate decision was 5–4, on the basis of an equal protection of law theory that is not entirely satisfying. (The other two who agreed that the lower court decision was unsound would have remanded the matter back to the Florida Supreme Court for clarification. Digressing for a moment, if the decision of the Florida court was otherworldly, the notion that the matter should be remanded for further clarification — with time running out and chaos in a Presidential election threatening — is out there in some intergalactic region. Rearranging deck chairs on the Titanic is an inadequate metaphor. Insisting that the seats in the lifeboats be upholstered and prohibiting anyone from getting into them until the upholstery was properly done — because, after all, who wants an uncomfortable seat in a lifeboat? — is closer. )

But the damage had been done. Thanks to the activism of the Florida Supreme Court, the myth persists to this day in Democratic circles that the United States Supreme Court gifted the 2000 election to George W. Bush on a partisan basis. Never mind that every tabulation of the votes, including the cold-blooded audit done by the Miami Herald months after the fact by the Miami Herald, showed Bush the winner by various margins, which is the way elections are actually decided. (It would be more accurate to say that the United States Supreme Court deprived the Democratic Party of the opportunity to steal the election on behalf of Gore.) But more than that, to get to the essence, Gore lost the election on the night of November 7th by the votes tabulated in accordance with the unobjectionable statutes governing Florida elections. That’s where the matter should have begun and ended. Everything that followed was bewildering, confusing nonsense. The intrusion of the State Supreme Court transformed the election into a litigation, a judicial contest, and that was a shame and a travesty.

Barton Gellman is right to be afraid of legislatures doing foolish things. However, the entire foundation of the United States Constitution is built on distrust of government institutions or agencies doing foolish things. Any public institution can go badly, badly wrong. But if we have to trust one, legislatures are the best, as they are the ones most sensitive to public will. That was certainly the belief of the Founding Fathers. That makes a lot more sense than permitting the intervention of an unelected judiciary or a rogue governor, which might be equally partisan, but much further removed from public control. In any case, an article that conjures up a bevy of possible nightmares that the Independent State Legislature Doctrine could produce, while ignoring the nightmare that actually did occur only two decades ago, when an activist and partisan court came racing into the fray, is a little one-sided.

I will finish with a coda. On December 22, when all the smoke had cleared, all the adrenaline was gone, all the hormonal energy diffused, the Florida Supreme Court issued the third and last of its orders in the Gore case, dismissing the remand from the Supreme Court in a short, per curiam opinion. The electors had been certified, the count was now official, and George W. Bush was the next President of the United States. Nothing was at issue any longer. The Florida court explained the rationale of the dismissal in a couple of brief paragraphs.

Moreover, upon reflection, we conclude that the development of a specific, uniform standard necessary to ensure equal protection and to secure the fundamental right to vote throughout the State of Florida should be left to the body we believe best equipped to study and address it, the Legislature.

Exactly right, and a fairly good short exposition of the reason for the entrustment of these issues exclusively to the legislature, the Independent State Legislature Doctrine.

Wisdom that came to that court just a little bit late.