Hayward H. Smith has published Revisiting the History of the Independent State Legislature
Doctrine in the St. Mary's Law Journal 53 (2022): 445-582. From the introduction:
In hopes of legitimizing the independent state legislature doctrine, its proponents have recently made two claims with respect to history, which this Article refers to as the Substance/Procedure Thesis and the Prevailing View Thesis. The former admits that the original understanding was that state “legislatures” promulgating election law pursuant to the Elector Appointment and Elections Clauses are required to comply with state constitutionally-mandated “procedural” lawmaking requirements (such as a potential gubernatorial veto), but asserts that they were otherwise understood to be independent of “substantive” state constitutional restraints. The latter asserts that the independent state legislature doctrine was the “prevailing view” during the nineteenth century (before it was abandoned in the twentieth century).--Dan Ernst
This Article debunks the Substance/Procedure Thesis. Previously unreviewed historical evidence, including that arising from a review of the 1776 drafting history of the predecessor language of Article V of the Articles of Confederation, confirms that the Founding generation understood that “legislatures” would be subject to substantive state constitutional restrictions as well as constitutionally-mandated lawmaking procedures. The evidence shows that the Framers of the Elector Appointment and Elections Clauses—including in particular John Dickinson and James Madison—expected that state constitutions would impose substantive limitations on “legislatures.” The evidence also demonstrates that the Framers’ subjective expectations were shared by other members of the Founding generation. State constitutions adopted in the years immediately following the Founding contained substantive restrictions on election law that, although they did not explicitly refer to federal elections (as did the Delaware constitution of 1792), were understood to apply to all elections, including federal elections.
This Article also debunks the Prevailing View Thesis. It cannot be sustained on any objective view of the evidence. A review of every state constitution adopted during the 1800s reveals that both explicit and non- explicit limitations on “legislatures” were widespread before, during, and after the Civil War. On the other hand, apart from the House of Representatives’ contested election case of Baldwin v. Trowbridge, the doctrine was little more than a lawyer argument episodically invoked in House contested election cases or state courts, without prevailing in either forum. Suggestions to the contrary are based on mischaracterizations of the cases
