Could a broad anti-ISL US CA (replace Leg with leg process) have gotten through in, say, the 1910s?

[Kevinstat]

I think most of us here would agree that a U.S. Constitutional amendment to codify the general progressive view of the elections clause (say, replacing "by the Legislature thereof" in the elections clause with "in a manner consistent with the legislative process as prescribed in that state's constitution", and perhaps while at it making a similar change to the presidential electors clause and amending the guarantee clause to put away any claim that popular initiative or popular veto provisions and popularly instituted commissions constitute denial of a "republican form of government")... most of us would agree that such a U.S. Constitutional amendment would have no chance of getting past Congress today (and there are enough people on both sides of the political spectrum who are terrified of a "ConCon" that the other starting route for U.S. Constitutional amendments isn't realistic either).

But could it have happened earlier?  I think probably, and the 1910s seem like about the optimum time (although it could possibly have gotten through much earlier or somewhat later if the proper impetus, like a pro-ISL ruling striking down a popular provision affecting federal elections in several states, had happened).

While I had been thinking of posting this for a few days now, coming to the Constitution and Law forum (which I don't spend much time in) this evening and seeing @theflyingmongoose's thread asking a similar question about an anti-SSM U.S. Constitutional amendment (although phrased in a different and rather opposite way, like how far back would such an amendment not have sailed through rather than how recently it would be doomed) helped spur me on, and also convinced me that this was where I should post this rather than the Political Geography and Demographics forum (which deals with redistricting which could be heavily impacted by ISL, but this discussion seems definitely in Constitution and Law territory, and now I know that people will ask these kinds of questions here).

I'd be interested in what other forum members' thoughts were on this, and also if the fact (if agreed) that such an amendment could likely have gotten through in much of this country's history should (and also if it will) have any bearing on the decision in Moore v. Harper and how Congress ought to react if ISL prevails (not how they will react, which I think is pretty obvious (well over the necessary "blocking 1/3 + 1" celebrating and shrugging off any criticism).  I could see someone thinking that obviously a legal case should be decided on the law, period, with no consideration about "coulda, woulda, shoulda", but the same person conceding that a just Congress would give the people of the states (nowadays many State Legislatures would be hostile so you'd have to go the convention route to ratification, although once upon a time I could see State Legislatures being more favorable, like when they were themselves sending pro-direct democracy state constitutional amendments to the voters, and I know some states have determined that the state's ratifying convention would be the Legislature so in those states the route Congress chose wouldn't matter)... anyway, I could see someone thinking ISL (at least the "non-over the top version", so allowing for a Governor's veto and normal override process but no commissions or referenda) as the one correct legal decision but conceding that another system would be more fair, and something that at one point in our history could likely have gotten clear provision for in the U.S. Constitution.

[Donerail]

Doubtful. It is structurally difficult to pass a constitutional amendment, most fundamentally because passing something through the political process in the requisite number of states requires a large and organized constituency in favor. Even if one had been proposed in the 1910s, it is very unlikely it would have been passed. Why do it? To fend off a fringe legal theory that garnered very little support until a century later?

[World politics is up Schmitt creek]

Doubtful. It is structurally difficult to pass a constitutional amendment, most fundamentally because passing something through the political process in the requisite number of states requires a large and organized constituency in favor. Even if one had been proposed in the 1910s, it is very unlikely it would have been passed. Why do it? To fend off a fringe legal theory that garnered very little support until a century later?

Yes, the entire reason small-c constitutional conventions--such as the idea that rules for elections should themselves be set in a relatively just, responsive, proportional, and majoritarian way, rather than according to whatever process the ruling cabal of the day in some state legislature deigns to give its electorate--is that amending actual constitutional texts tends to be deliberately difficult absent some obvious political or social danger that can't be averted or problem that can't be solved under the current text. So obvious would it have been to most Progressive Era activists that that was what the Constitution should provide for that they wouldn't have bothered to mobilize against a then-nonexistent threat of policymakers thinking otherwise.

When was the last time a right-wing state government (or state-level advocacy group made up of mostly right-wing people) substantially changed a state's election system through some means other than state legislation? That should give a working boundary for the latest point at which this kind of consensus on this subject presumably still existed.

[Kevinstat]

Doubtful. It is structurally difficult to pass a constitutional amendment, most fundamentally because passing something through the political process in the requisite number of states requires a large and organized constituency in favor. Even if one had been proposed in the 1910s, it is very unlikely it would have been passed. Why do it? To fend off a fringe legal theory that garnered very little support until a century later?

Yes, the entire reason small-c constitutional conventions--such as the idea that rules for elections should themselves be set in a relatively just, responsive, proportional, and majoritarian way, rather than according to whatever process the ruling cabal of the day in some state legislature deigns to give its electorate--is that amending actual constitutional texts tends to be deliberately difficult absent some obvious political or social danger that can't be averted or problem that can't be solved under the current text. So obvious would it have been to most Progressive Era activists that that was what the Constitution should provide for that they wouldn't have bothered to mobilize against a then-nonexistent threat of policymakers thinking otherwise.

When was the last time a right-wing state government (or state-level advocacy group made up of mostly right-wing people) substantially changed a state's election system through some means other than state legislation? That should give a working boundary for the latest point at which this kind of consensus on this subject presumably still existed.

Term-limits in the 1990s, maybe?  Although that wasn't all conservatives behind that, but definitely not the Dem establishment, at least not in Maine and Massachusetts.  Those two states both had successful initiatives, but the state Supreme Courts ruled differently on whether the Constitutional requirements for state legislators precluded additional requirements being added by statutes (both states have citizen initiatives for regular legislation but not for constitutional amendments).  Which is interesting as I've heard that the language of the relevant sections of those two state constitutions was practically identical (and maybe word for word, as Maine would likely have modeled its constitution on that of its "parent state" where there wasn't some clear desire to do things differently).  So Maine has legislative term limits (no more than 4 consecutive 2-year terms in each chamber, although one could hop between the two forever) while Massachusetts does not.

[Vosem]

When was the last time a right-wing state government (or state-level advocacy group made up of mostly right-wing people) substantially changed a state's election system through some means other than state legislation? That should give a working boundary for the latest point at which this kind of consensus on this subject presumably still existed.

Referendums happen all the time even in very left-wing states (such as redistricting reform in California, to name an obvious example), and state Supreme Court decisions in places where the courts are controlled by the right (too many decisions in Florida to list). I'm not sure what you're trying to say in this post (do you mean, like, extrajudicially like Dorr's Rebellion or Reconstruction-era stuff?), but as read the answer is probably summer 2022.

[World politics is up Schmitt creek]

When was the last time a right-wing state government (or state-level advocacy group made up of mostly right-wing people) substantially changed a state's election system through some means other than state legislation? That should give a working boundary for the latest point at which this kind of consensus on this subject presumably still existed.

Referendums happen all the time even in very left-wing states (such as redistricting reform in California, to name an obvious example), and state Supreme Court decisions in places where the courts are controlled by the right (too many decisions in Florida to list). I'm not sure what you're trying to say in this post (do you mean, like, extrajudicially like Dorr's Rebellion or Reconstruction-era stuff?), but as read the answer is probably summer 2022.

I didn't word that very well because I was sleep-deprived and a little tipsy, a condition I am in now as well.* I'll try to reword the question more clearly tomorrow.

*Don't worry; the last few days are an outlier in terms of me taking care of myself; I'm decompressing from something very hectic I just pulled off at work.

[World politics is up Schmitt creek]

Sorry Vosem; just remembered I still needed to get back to you on this!

The tl;dr is that I was asking when the last time was that a right-wing-initiated change to an election law went through a process that the ISL doctrine wouldn't "allow". The issue I wasn't considering was that the premise of the question is false because the levers of power that people use when they have them are not limited to those that some legal theory tells them they "should" be able to use, even if it's a legal theory that they themselves advance.

[Skill and Chance]

When was the last time a right-wing state government (or state-level advocacy group made up of mostly right-wing people) substantially changed a state's election system through some means other than state legislation? That should give a working boundary for the latest point at which this kind of consensus on this subject presumably still existed.

Referendums happen all the time even in very left-wing states (such as redistricting reform in California, to name an obvious example), and state Supreme Court decisions in places where the courts are controlled by the right (too many decisions in Florida to list). I'm not sure what you're trying to say in this post (do you mean, like, extrajudicially like Dorr's Rebellion or Reconstruction-era stuff?), but as read the answer is probably summer 2022.

Yes, I think people are assuming all kinds of extreme consequences from this when there's roughly century old precedents that "legislature" in the Elections Clause means passing legislation under a state's normal constitutional procedures, including the referendum and governor's veto where applicable.

[Vosem]

Sorry Vosem; just remembered I still needed to get back to you on this!

The tl;dr is that I was asking when the last time was that a right-wing-initiated change to an election law went through a process that the ISL doctrine wouldn't "allow". The issue I wasn't considering was that the premise of the question is false because the levers of power that people use when they have them are not limited to those that some legal theory tells them they "should" be able to use, even if it's a legal theory that they themselves advance.

The immediate first answer that comes to mind is the Virginia redistricting referendum in 2020, and depending on your formulation of ISL possibly even the FLSC allowing the DeSantis plan in 2022.

(If you mean, "when was the last time a right-wing state judiciary struck down a left-wing gerrymander", then this is very unusual because state courts rarely intervened in redistricting at all prior to 2015. The answer is Maryland 2022, though; arguably New York 2022, though the Maryland case is more explicit because that court is majority Republican appointees. There are some large states where ISL would, in practice, end up bodying the state Republican Party -- quite obviously CA, where the referendum process is the greatest source of right-wing power in the state, but also IL, where the state Supreme Court is much more winnable for the GOP than the state legislature and, under the 2020s alignment, quite possibly more winnable than the position of Governor).

The explicit framing of the current question before SCOTUS in Moore is very far from full ISL, and is actually quite favorable to the GOP (it just asks whether state courts interfering in redistricting are in violation of a hypothetical ISL, and stops far short of asking SCOTUS to enforce a full ISL). If the GOP actually seizes the Illinois Supreme Court, then I think that in and of itself makes it questionable whether such a decision actually helps either party, just because it's such a large state and a 'neutral' map could be quite strongly favorable to the GOP. But this is a bit of a technical point, something noticed by map nerds rather than something well-understood, and if the GOP doesn't take the Illinois Supreme Court it wouldn't even apply, and such a decision would clearly help Republicans.

(I think sometimes parties do try to avoid using techniques that they feel are ideologically illegitimate on some level; both parties have a reflexive attitude to turnout -- the Democrats think high turnout is good no matter what, while the GOP is suspicious of high turnout and thinks it's evidence of foul play -- which is out-of-date and doesn't correspond to the positions they 'should' hold from a place of narrow self-interest. But nothing like this occurs in redistricting.)