Mark S. Krass

Debunking the Nondelegation Doctrine for State Regulation of Federal Elections

One objection to the conduct of the 2020 election concerned the key role played by state executives in setting election rules. Governors and elections officials intervened to change a host of regulations, from ballot deadlines to polling times, often acting pursuant to legislation granting them emergency powers. Some advocates, politicians, and judges cried foul. They argued that state legislatures may not devolve the power to set the “Times, Places, and Manner” of federal elections under Article I, Section 4 of the Constitution.

This Article contests that view. Drawing on a survey of elections statutes in the thirteen original colonies, I argue that local officials frequently made critical decisions about the time, place, and manner of early American elections. Executive officers like sheriffs and local officials like selectmen had enormous discretion to determine the time and place of elections, and sometimes also their manner. That discretion was repeatedly affirmed by Congress. Advocates of the Independent State Legislature (“ISL”) theory must interpret these exercises of local power as evidence that Founding-era legislatures delegated their power under the Elections Clause. As a doctrinal matter, this history suggests that courts embracing the ISL theory ought to accord a broad permission for legislatures to delegate their Elections Clause powers today. For opponents of the ISL theory, the history of local power over federal elections may provide further reasons to question the literal meaning of the term “legislature” in Article I, Section 4.

Introduction

Imagine that a state legislature amends its election laws by passing the following statute: “The Secretary of State is authorized to amend existing election law if, in her judgement, such amendments would promote the fairness of an upcoming election.” Call this the “Delegation Act”; assume it is legal under the state constitution. Would a regulation promulgated under this Act violate Article I, Section 4 of the U.S. Constitution?

This hypothetical question was exactly the one faced by tens of federal courts during the 2020 election, when state executives across the country began modifying election rules to ensure COVID-safe elections. The result was a serious divide between Supreme Court precedent and a literalist reading of the Elections Clause pressed by textualists.

Article I, Section 4’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.”1 1.U.S. Const. art. I, § 4, cl. 1 (emphasis added). The Constitution contains numerous references to elections, but in this Article, I use the phrase “Elections Clause” to refer specifically to this clause.Show More Precedent going back over a century reads this clause broadly, such that that “Legislature” means “whoever is allowed to legislate.”2 2.See Smiley v. Holm, 285 U.S. 355, 368 (1932) (holding that a gubernatorial veto is part of the “legislature” for Elections Clause purposes); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 566, 568 (1916) (holding that the Elections Clause permits Ohio to use a referendum to pass its redistricting plan); see also infra Section I.A (discussing scholars’ broad interpretation of “Legislature”).Show More Under this rule, the Delegation Act is legal: the Secretary of State is authorized to promulgate regulations and is thus “allowed to legislate.”3 3.Of course, the Secretary of State would still be restrained by a number of other federal constitutional provisions, like the Equal Protection Clause and the Due Process Clause.Show More This interpretation was most recently affirmed by the U.S. Supreme Court in 2015.4 4.Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (“AIRC”), 576 U.S. 787, 808 (2015).Show More

But several Justices have advocated discarding this precedent in favor of an alternative theory of the Elections Clause that features a so-called “Independent State Legislature” (“ISL”).5 5.Other scholars refer to an “Independent State Legislature Doctrine,” see, e.g., Hayward H. Smith, History of the Article II Independent State Legislature Doctrine, 29 Fla. St. U. L. Rev. 731, 732 (2001), though referring to this view as a “doctrine” may lend it too much heft.Show More When the Elections Clause speaks of the “Legislature,” they say, it means that exactly one entity may regulate the time, place, and manner of federal elections: “the representative body which ma[kes] the laws of the people.”6 6.AIRC, 576 U.S. at 825 (Roberts, C.J., dissenting) (alteration in original) (emphasis omitted) (quoting Smiley, 285 U.S. at 365).Show More Legislatures are thus “independent” when regulating federal elections in the sense that they are unbound by state constitutions (and, by implication, are free of the institutions that enforce state constitutions, namely state courts).7 7.See, e.g., Michael T. Morley, The Independent State Legislature Doctrine, Federal Elections, and State Constitutions, 55 Ga. L. Rev. 1, 8 (2020) (“[S]tate constitutions . . . cannot limit a legislature’s power to regulate most aspects of federal elections.”).Show More As this Article was going to press, the Court granted certiorari to reconsider the ISL theory.8 8.See Moore v. Harper, No. 21-1271, 2022 WL 2347621 (U.S. June 30, 2022) (granting certiorari).Show More

The Delegation Act raises a different question arising from the literalist reading of the Elections Clause: May the legislature itself convey its power? This Article argues that the right answer is yes. The Federal Constitution allows expansive legislative delegations under the Elections Clause.

That claim is contested among proponents of the Independent State Legislature theory. Some approve of delegations. Chief Justice Rehnquist’s concurrence in Bush v. Gore9 9.531 U.S. 98, 112 (2000) (per curiam). An earlier per curiam decision in Bush v. Palm Beach County Canvassing Board, 531 U.S. 70, 76–77 (2000), had also strongly intimated that the Court was inclined to adopt the Independent State Legislature theory, but the opinion fell short of actually adopting the theory as its holding.Show More endorses the Florida Legislature’s decision to “delegate[] the authority to run the elections and to oversee election disputes to the Secretary of State . . . and to state circuit courts.”10 10.Bush v. Gore, 531 U.S. at 113–14.Show More The Arizona Legislature made similar arguments when it challenged a referendum establishing an independent redistricting commission in 2015: the legislature, it claimed, has total freedom to assign its regulatory duties to whomever it pleases.11 11.AIRC, 576 U.S. at 814.Show More

But more recent treatments of the ISL theory have begun to view delegations with greater skepticism. Several articles have expressed doubt about the propriety of delegations under the Elections Clause, arguing that the legislature cannot empower others to make rules for federal elections.12 12.I provide more detail on this claim in Section I.A, infra. To briefly summarize that discussion, two prominent scholars have advocated a strict view of statutory delegations. Derek Muller claims in a 2016 piece that “the historical understanding of the power of the ‘Legislature’ precluded a delegation of its power to another entity,” an almost-wholesale repudiation of delegations. Derek T. Muller, Legislative Delegations and the Elections Clause, 43 Fla. St. U. L. Rev. 717, 718 (2016). In some of his writing, Michael Morley has likewise argued against any restrictions on legislative power to set election regulations, including restrictions passed by legislatures themselves. Morley, supra note 7, at 92 (arguing that state legislatures should not be able to restrict their own “inalienable authority granted by the U.S. Constitution” to write elections laws); Michael T. Morley, The New Elections Clause, 91 Notre Dame L. Rev. Online 79, 93–94 (2016) [hereinafter Morley, The New Elections Clause] (criticizing AIRC for foreclosing future delegation challenges). Note, however, that a more recent perspective disclaims hostility to delegations. Michael T. Morley, The Independent State Legislature Doctrine, 90 Fordham L. Rev. 501, 555 (2021) [hereinafter Morley, The Independent State Legislature Doctrine].Show More And even more modest proposals, like the proposal to use the general federal nondelegation doctrine in federal elections, open the door to a future in which legislative delegations under the Elections Clause are highly contested.13 13.That is, many scholars expect federal nondelegation doctrine to be significantly tightened in coming years. See, e.g., Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288, 1295–97 (2021) (describing the support for a much more stringent version of the doctrine). If this were to occur, then applying federal nondelegation rules to state elections might prove problematic.Show More

Some members of the judiciary appear even more hostile to Elections Clause delegations. During the 2020 election, a number of plaintiffs who brought Elections Clause challenges against executive actions found a sympathetic audience among federal judges. Citing the Elections Clause, for instance, the U.S. Court of Appeals for the Eighth Circuit overturned a Minnesota order extending the deadline for receiving mail-in ballots, even though the Minnesota Secretary of State claimed to possess delegated statutory authority to issue it.14 14.Carson v. Simon, 978 F.3d 1051, 1062 (8th Cir. 2020); see infra Section I.B.Show More Other judges either followed suit or issued dissenting opinions indicating they would have liked to.15 15.Tex. League of United Latin Am. Citizens v. Hughs, 978 F.3d 136, 150 (5th Cir. 2020) (Ho, J., concurring); Wise v. Circosta, 978 F.3d 93, 104 (4th Cir. 2020) (en banc) (Wilkinson & Agee, JJ., dissenting); see infra Section I.B.Show More

In short, an emerging movement that spans academia and the judiciary would severely curtail the power of state legislatures to delegate power over elections.

This Article’s primary purpose is to show that, as a doctrinal matter, Elections Clause delegations are entirely permissible. The Federal Constitution recognizes the power of state legislatures to delegate their authority over elections to state executives and state courts. Federal courts reviewing such delegations should give full effect to Elections Clause delegations, regardless of their view on whether state legislatures are bound by state constitutions in making federal elections law, and regardless of the delegation rules they might apply to Congress under Article I, Section 8.

I argue that a delegation-friendly reading of the Elections Clause is the only interpretation that accounts for the clear course of practice in the Founding era. Specifically, I undertake an original, comprehensive survey of election laws in the original thirteen states during the four decades following the ratification of the Constitution in 1788. While many scholars have used historical evidence to construe the meaning of the Elections Clause, all previous studies focus on evidence from the Civil War and the decades that followed it.16 16.See infra Section I.A; see also, e.g., Muller, supra note 12, at 718–20 (outlining an argument on legislative delegations rooted in late nineteenth-century congressional precedents and the pre-ratification history of the Seventeenth Amendment).Show More This is the first study to draw on the early American practice most relevant to an originalist interpretation of the Constitution.17 17.The text of the Elections Clause is susceptible to interpretation by reference to historical practice because it is ambiguous with respect to delegations. See William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 14 (2019).To see this, first note that the Elections Clause is simply equivalent to a grant of legislative power—no different than the grant of power to Congress in Article I, Section 8. In particular, no special significance should be attached to the appearance of the word “prescribe,” a word that the Supreme Court’s favorite Founding-era sources treat as synonymous with “make legislation about.” See, e.g., 1 William Blackstone, Commentaries *38 (defining law as a “rule of action, which is prescribed by some superior, and which the inferior is bound to obey”); id. at *44 (“Municipal law . . . is properly defined to be ‘a rule of civil conduct prescribed by the supreme power in a state . . . .’”); id. at *46, *52; see also The Federalist No. 57, at 280 (James Madison) (Terence Ball ed., 2003) (using the phrase “the mode prescribed by the Constitution for the choice of representatives” to refer to the states’ control over elections under the Elections Clause); The Federalist No. 75, at 365 (Alexander Hamilton) (Terence Ball ed., 2003) (“The essence of the legislative authority is to enact laws, or in other words to prescribe rules for the regulation of the society.”). Because “prescribe” simply means “make law about,” the Elections Clause is no different from other grants of legislative power. Does a grant of legislative power preclude delegations?Virtually everyone agrees that the Constitution’s other major grant of legislative power—Article I, Section 8—is textually ambiguous with respect to delegations. See, e.g., Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev.379, 389 (2017) (noting “[t]here is no explicit textual prohibition on the delegation of legislative power,” though “such a rule has long been thought implicit”); Gary Lawson & Patricia B. Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J.267, 274, 324 n.233 (1993) (anchoring the nondelegation doctrine in the Necessary & Proper Clause, not in the grant of power at the outset of Article I, Section 8).The conjunction of these two facts suggests that the propriety of Election Clause delegations cannot be determined from the text alone. Thus, historical evidence matters. It might either reveal Americans’ expectations about what the Clause’s text meant or reveal the settlement of their meaning in the first decades of the republic. See Baude, supra, at 14.Show More

The historical evidence shows that local power over elections was widespread in the decades following the Founding. In nine of thirteen states, profoundly consequential control over the “Times” and “Places” of elections was exercised by local officials like sheriffs or justices of the peace. To name just one example, Virginia sheriffs had the authority to adjourn elections up to four days, and they could relocate polling from the county courthouse if the county was “infected with any contagious disease, or . . . in danger of an attack from a public enemy.”18 18.Act effective Jan. 1, 1787, ch. 55, § 3, 1785 Va. Acts 38, 39.Show More Or take New York, where elections inspectors had total power to determine polling places and polling times.19 19.See, e.g., Act of Feb. 13, 1787, ch. 15, § 4, 1787 N.Y. Laws 316, 318; see also infra Appendix (“New York”).Show More Advocates of the Independent State Legislature theory must interpret these examples as delegations, and thus ought to embrace the legality of legislative delegations today.

In modern elections, of course, state executives have joined local officials in exercising power over federal elections. One might well wonder whether there is a constitutional difference between local power at the Founding and state executive power today.

Proponents of the ISL theory cannot sustain that view. First, as a factual matter, both “local” and “executive” officers received delegated power in the Founding era. Second, what makes Founding-era local governments arguably distinguishable from modern-day state executives is their claim to quasi-sovereignty in regulating their own affairs.20 20.See infra Part III.Show More It might thus be plausible to see local control over federal elections as an exercise of inherent, rather than delegated, power, a very different matter than horizontal delegations to state executives. But that interpretation would be utterly incompatible with the Independent State Legislature theory, which requires that state legislatures be the sole sources of legitimate rulemaking authority for federal elections; an exercise of inherent local power would scramble that narrative. Thus, advocates of the ISL theory ought to embrace delegation as the explanation for the historical evidence presented below.

Getting the delegation question right matters a great deal. COVID-19 is a powerful illustration of the need for occasional flexibility in election regulation, with dozens of states shifting their rules via executive action.21 21.See infra note 72 and accompanying text.Show More It is an open question whether safe and fair elections could have been held absent such delegations. But the implications of a nondelegation doctrine for the Elections Clause go far beyond COVID. State and local elections officials depend heavily on delegation to keep their agencies moving.22 22.See, e.g., Justin Weinstein-Tull, Election Law Federalism, 114 Mich. L. Rev. 747, 778–80 (2016); Daniel P. Tokaji, The Future of Elections Reform: From Rules to Institutions, 28 Yale L. & Pol’y Rev.125, 130–31 (2009) (describing the discretion baked into current election administration systems).Show More Adopting a nondelegation rule would wreak havoc on those systems.

With that said, the primary purpose of this Article is to intervene in the doctrinal debate over Elections Clause delegation; its aim is not to defend the practice of delegation as a matter of policy. It may be true, as some political science research suggests, that delegation is a necessary (though insufficient) ingredient in creating independent and expert agencies, in which case we might see delegation as a good.23 23.See generallyGary J. Miller & Andrew B. Whitford, Above Politics 17–22(2007) (arguing that delegation is key to establishing credibly neutral agencies like the Federal Reserve). As Michael McConnell points out, the issue of neutrality is less pronounced when legislatures make generalized ex ante rules. Michael W. McConnell, Two-and-a-Half Cheers for Bush v Gore, 68 U. Chi. L. Rev. 657, 661–62 (2001). But a regime without any delegation at all would inevitably require significant policy choices to be made at a close enough vantage point to an election that the stakes of any decision, and the likely beneficiaries, would be readily apparent.Show More Some of the examples cited below demonstrate a darker side of delegation, which is the risk that delegees use their positions to further the political ambitions of their allies. For present purposes, I bracket the normative question of whether we ought to celebrate delegation or deplore it. The goal here is to show that local power was a fact that was widely viewed as legal and to draw out the doctrinal implications of that historical evidence.

This Article also does not resolve two broader issues raised by the Independent State Legislature theory, namely (1) whether state legislatures are bound by state constitutions and (2) whether state courts can review state election laws governing federal elections. To be sure, my argument matters most in a world where the ISL theory is adopted, since current doctrine would defer entirely to state constitutions to determine the legality of delegations.24 24.See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (“AIRC”), 576 U.S. 787, 808 (2015) (“[R]edistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking.”).Show More And the evidence here may be relevant to debates over the ISL theory. As I note above, what I call “silent delegations” to local governments might instead be interpreted as evidence of inherent local power over federal elections, which would undercut the ISL theory’s literalist reading of “legislature.”25 25.As noted below, I thank Greg Ablavsky and Robert Gordon for helping me see this alternative possibility.Show More Also, as Hayward H. Smith has noted, the aggressive delegations I document below may undercut the view that legislative power over federal elections was sacrosanct.26 26.Hayward H. Smith, Revisiting the History of the Independent State Legislature Doctrine, 53 St. Mary’s L.J. (forthcoming 2022) (manuscript at 37), https://papers.ssrn.com/sol3/paper​s.cfm?abstract_id=3923205 [https://perma.cc/78LE-H76B].Show More But this Article is not primarily about whether the ISL theory is correct.

As I argue in Part I, that is partially in recognition of the fact that the ISL theory appears very likely to be adopted. The Supreme Court has not taken a case addressing the proper interpretation of the Elections Clause since the Arizona redistricting litigation in 2015. In that case, Chief Justice Roberts authored a ringing dissent, joined by Justices Thomas and Alito, effectively endorsing the ISL theory.27 27.AIRC, 576 U.S. at 824–25 (Roberts, C.J., dissenting);see infra note 69 and accompanying text.Show More Today, the Chief Justice would almost certainly be in the majority. Justices Kavanaugh and Gorsuch trumpeted their adherence to the ISL theory during the 2020 election cycle, making five sitting Justices who have recently endorsed the ISL theory in their opinions.28 28.Democratic Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28, 29 (2020) (Gorsuch J. concurring); id. at 34 n.1 (Kavanaugh, J. concurring); see infra notes 70–71 and accompanying text.Show More In recent redistricting litigation, several Justices have restated their commitment to this view.29 29.Moore v. Harper, 142 S. Ct. 1089, 1089–90 (2022) (mem.) (Alito, J. dissenting from denial of application for stay); id. at 1089 (Kavanaugh, J., concurring in denial of application for stay).Show More Even if it has not yet powered a majority opinion, the ISL theory already represents the views of the majority on the Supreme Court.

Finally, while this Article’s primary purpose is to contribute to a revived debate on the meaning of the Elections Clause, the pervasiveness of local delegations I document here adds to a growing literature on delegations in the early republic more generally. Most notably, Nicholas Parrillo has recently uncovered the history of federal boards of tax assessors empowered in 1798 to review property assessments under an ambiguous congressional statute.30 30.Parrillo, supra note 13, at 1302, 1304.Show More As Parrillo notes, originalist advocates of a more stringent nondelegation doctrine have traditionally argued that all Founding-era legislative delegations fall into the categories of (1) delegations concerning foreign affairs or (2) voluntary transactions and government benefits, such as those pertaining to veterans’ benefits.31 31.Id. at 1301 & n.48.Show More If, as advocates of the ISL theory believe, state legislatures make federal law when they regulate federal elections and are subject to the same nondelegation rules as Congress,32 32.See, e.g., Morley, The Independent State Legislature Doctrine, supra note 12, at 535 (“When plaintiffs allege a violation of their constitutional rights or federal voting-related statutes, they raise a federal question.”).Show More then the proliferation of delegation in the Elections Clause context would seem to provide another example of delegation under the Federal Constitution that affected the exercise of core political rights.33 33.See supra note 17 for a defense of the view that the language of the Elections Clause is not meaningfully different from that in Article I, Section 8.Show More

This Article proceeds as follows. Part I places this intervention in context by reviewing the scholarly and judicial discussion of the Independent State Legislature theory. It argues that the issue of permissible delegations has yet to be answered by extant scholarship and demonstrates that delegations were a major issue during 2020 election litigation. Part II presents the historical evidence suggesting that expansive and politically significant delegations to local officials were a pervasive feature of early American elections. Part III links that historical record back to modern controversies, arguing that state executives are no different from local officials. I conclude with some reflections on how federal courts should analyze delegations in future litigation.

  1. U.S. Const. art. I, § 4, cl. 1 (emphasis added). The Constitution contains numerous references to elections, but in this Article, I use the phrase “Elections Clause” to refer specifically to this clause. ↑
  2. See Smiley v. Holm, 285 U.S. 355, 368 (1932) (holding that a gubernatorial veto is part of the “legislature” for Elections Clause purposes); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 566, 568 (1916) (holding that the Elections Clause permits Ohio to use a referendum to pass its redistricting plan); see also infra Section I.A (discussing scholars’ broad interpretation of “Legislature”). ↑
  3. Of course, the Secretary of State would still be restrained by a number of other federal constitutional provisions, like the Equal Protection Clause and the Due Process Clause. ↑
  4. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (“AIRC”), 576 U.S. 787, 808 (2015). ↑
  5. Other scholars refer to an “Independent State Legislature Doctrine,” see, e.g., Hayward H. Smith, History of the Article II Independent State Legislature Doctrine, 29 Fla. St. U. L. Rev. 731, 732 (2001), though referring to this view as a “doctrine” may lend it too much heft. ↑
  6. AIRC, 576 U.S. at 825 (Roberts, C.J., dissenting) (alteration in original) (emphasis omitted) (quoting Smiley, 285 U.S. at 365). ↑
  7. See, e.g., Michael T. Morley, The Independent State Legislature Doctrine, Federal Elections, and State Constitutions, 55 Ga. L. Rev. 1, 8 (2020) (“[S]tate constitutions . . . cannot limit a legislature’s power to regulate most aspects of federal elections.”). ↑
  8. See Moore v. Harper, No. 21-1271, 2022 WL 2347621 (U.S. June 30, 2022) (granting certiorari). ↑
  9. 531 U.S. 98, 112 (2000) (per curiam). An earlier per curiam decision in Bush v. Palm Beach County Canvassing Board, 531 U.S. 70, 76–77 (2000), had also strongly intimated that the Court was inclined to adopt the Independent State Legislature theory, but the opinion fell short of actually adopting the theory as its holding. ↑
  10. Bush v. Gore, 531 U.S. at 113–14. ↑
  11. AIRC, 576 U.S. at 814. ↑
  12. I provide more detail on this claim in Section I.A, infra. To briefly summarize that discussion, two prominent scholars have advocated a strict view of statutory delegations. Derek Muller claims in a 2016 piece that “the historical understanding of the power of the ‘Legislature’ precluded a delegation of its power to another entity,” an almost-wholesale repudiation of delegations. Derek T. Muller, Legislative Delegations and the Elections Clause, 43 Fla. St. U. L. Rev. 717, 718 (2016). In some of his writing, Michael Morley has likewise argued against any restrictions on legislative power to set election regulations, including restrictions passed by legislatures themselves. Morley, supra note 7, at 92 (arguing that state legislatures should not be able to restrict their own “inalienable authority granted by the U.S. Constitution” to write elections laws); Michael T. Morley, The New Elections Clause, 91 Notre Dame L. Rev. Online 79, 93–94 (2016) [hereinafter Morley, The New Elections Clause] (criticizing AIRC for foreclosing future delegation challenges). Note, however, that a more recent perspective disclaims hostility to delegations. Michael T. Morley, The Independent State Legislature Doctrine, 90 Fordham L. Rev. 501, 555 (2021) [hereinafter Morley, The Independent State Legislature Doctrine]. ↑
  13. That is, many scholars expect federal nondelegation doctrine to be significantly tightened in coming years. See, e.g., Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s,
    130

    Yale

    L.J. 1288, 1295–97

    (2021) (describing the support for a much more stringent version of the doctrine). If this were to occur, then applying federal nondelegation rules to state elections might prove problematic. ↑

  14. Carson v. Simon, 978 F.3d 1051, 1062 (8th Cir. 2020); see infra Section I.B. ↑
  15. Tex. League of United Latin Am. Citizens v. Hughs, 978 F.3d 136, 150 (5th Cir. 2020) (Ho, J., concurring); Wise v. Circosta, 978 F.3d 93, 104 (4th Cir. 2020) (en banc) (Wilkinson & Agee, JJ., dissenting); see infra Section I.B. ↑
  16. See infra Section I.A; see also, e.g., Muller, supra note 12, at 718–20
    (

    outlining an argument on legislative delegations rooted in late nineteenth-century congressional precedents and the pre-ratification history of the Seventeenth Amendment). ↑

  17. The text of the Elections Clause is susceptible to interpretation by reference to historical practice because it is ambiguous with respect to delegations. See William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 14 (2019).To see this, first note that the Elections Clause is simply equivalent to a grant of legislative power—no different than the grant of power to Congress in Article I, Section 8. In particular, no special significance should be attached to the appearance of the word “prescribe,” a word that the Supreme Court’s favorite Founding-era sources treat as synonymous with “make legislation about.” See, e.g., 1 William Blackstone, Commentaries *38 (defining law as a “rule of action, which is prescribed by some superior, and which the inferior is bound to obey”); id. at *44 (“Municipal law . . . is properly defined to be ‘a rule of civil conduct prescribed by the supreme power in a state . . . .’”); id. at *46, *52; see also The Federalist No. 57, at 280 (James Madison) (Terence Ball ed., 2003) (using the phrase “the mode prescribed by the Constitution for the choice of representatives” to refer to the states’ control over elections under the Elections Clause); The Federalist No. 75, at 365 (Alexander Hamilton) (Terence Ball ed., 2003) (“The essence of the legislative authority is to enact laws, or in other words to prescribe rules for the regulation of the society.”). Because “prescribe” simply means “make law about,” the Elections Clause is no different from other grants of legislative power. Does a grant of legislative power preclude delegations?

    Virtually everyone agrees that the Constitution’s other major grant of legislative power—Article I, Section 8—is textually ambiguous with respect to delegations. See, e.g., Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev.

    379, 389 (2017) (noting “[t]here is no explicit textual prohibition on the delegation of legislative power,” though “such a rule has long been thought implicit”); Gary Lawson & Patricia B. Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J.

    267, 274, 324 n.233 (1993) (anchoring the nondelegation doctrine in the Necessary & Proper Clause, not in the grant of power at the outset of Article I, Section 8).

    The conjunction of these two facts suggests that the propriety of Election Clause delegations cannot be determined from the text alone. Thus, historical evidence matters. It might either reveal Americans’ expectations about what the Clause’s text meant or reveal the settlement of their meaning in the first decades of the republic. See Baude, supra, at 14. ↑

  18. Act effective Jan. 1, 1787, ch. 55, § 3, 1785 Va. Acts 38, 39. ↑
  19. See, e.g., Act of Feb. 13, 1787, ch. 15, § 4, 1787 N.Y. Laws 316, 318; see also infra Appendix (“New York”). ↑
  20. See infra Part III. ↑
  21. See infra note 72 and accompanying text. ↑
  22. See, e.g., Justin Weinstein-Tull, Election Law Federalism, 114 Mich. L. Rev. 747, 778–80 (2016); Daniel P. Tokaji, The Future of Elections Reform: From Rules to Institutions, 28 Yale L. & Pol’y Rev.

    125, 130–31 (2009) (describing the discretion baked into current election administration systems). ↑

  23. See generally Gary J. Miller & Andrew B. Whitford, Above Politics 17–22 (2007) (arguing that delegation is key to establishing credibly neutral agencies like the Federal Reserve). As Michael McConnell points out, the issue of neutrality is less pronounced when legislatures make generalized ex ante rules. Michael W. McConnell, Two-and-a-Half Cheers for Bush v Gore, 68 U. Chi. L. Rev. 657, 661–62 (2001). But a regime without any delegation at all would inevitably require significant policy choices to be made at a close enough vantage point to an election that the stakes of any decision, and the likely beneficiaries, would be readily apparent. ↑
  24. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (“AIRC”), 576 U.S. 787, 808 (2015) (“[R]edistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking.”). ↑
  25. As noted below, I thank Greg Ablavsky and Robert Gordon for helping me see this alternative possibility. ↑
  26. Hayward H. Smith, Revisiting the History of the Independent State Legislature Doctrine, 53 St. Mary’s L.J. (forthcoming 2022) (manuscript at 37), https://papers.ssrn.com/sol3/paper​s.cfm?abstract_id=3923205 [https://perma.cc/78LE-H76B]. ↑
  27. AIRC, 576 U.S. at 824–25 (Roberts, C.J., dissenting); see infra note 69 and accompanying text. ↑
  28. Democratic Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28, 29 (2020) (Gorsuch J. concurring); id. at 34 n.1 (Kavanaugh, J. concurring); see infra notes 70–71 and accompanying text. ↑
  29. Moore v. Harper, 142 S. Ct. 1089, 1089–90 (2022) (mem.) (Alito, J. dissenting from denial of application for stay); id. at 1089 (Kavanaugh, J., concurring in denial of application for stay). ↑
  30. Parrillo, supra note 13, at 1302, 1304. ↑
  31. Id. at 1301 & n.48. ↑
  32. See, e.g., Morley, The Independent State Legislature Doctrine, supra note 12, at 535 (“When plaintiffs allege a violation of their constitutional rights or federal voting-related statutes, they raise a federal question.”). ↑

  33. See supra note 17 for a defense of the view that the language of the Elections Clause is not meaningfully different from that in Article I, Section 8. ↑

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