All posts by Richard Pildes

Addressing a Key Issue Discussed at Length in Moore v. Harper Argument

I’m going to re-up a post of mine from Dec. 3rd on this issue: how relevant should the Bush v. Gore concurrence on statutory interpretation, which CJ Rehnquist authored, be in considering the role of state courts in interpreting the state constitution? I think the significant differences in the nature of these sources of law suggests that it is a far more difficult inquiry to judge when a constitutional interpretation “is not a fair interpreation” from the text of a constitution than it is to decide when a statutory interpretation “is not a fair interpretation” of the statutory text:

The ISLT: How State Constitutions and Statutes Differ.

With the argument coming up next week in Moore v. Harper, I’ve thought more deeply about some of the less obvious legal issues underlying the case.  I plan to do a few posts on these issues.

At least several Justices on the Court are surely inclined to endorse the version of the ISLT that was expressed in Bush v. Gore’s three-Justice concurrence, which then-Chief Justice Rehnquist wrote.  This version is about federal constitutional constraints on state actors – such as judges or election administration officials – when they interpret and apply state statutes that regulate federal election.  In this version, state actors cannot depart from what “a fair reading” of the state election code provides.  This version is not about whether state constitutions can constrain state statutes regulating federal elections and is not directly at issue in Moore.  Nonetheless, it makes sense to consider how to think about the implications of the Bush v. Gore concurrence for the issue directly involved in Moore.

The question I want to raise can be put this way:  if I’m a Justice inclined to accept the Bush v. Gore concurrence’s version of the ISLT, does that logically mean I must also believe state courts similarly cannot depart from what “a fair reading” of the state’s constitution provides in judging the constitutionality of state statutes that regulate federal elections?  But here, a dramatic difference between statutes and constitutions as sources of law must be considered.  State statutes will generally be far more specific and detailed, with provisions that interact with other provisions in the statute, than state constitutions.  In the federal context, compare the difference between Title VII, or the 1964 Civil Rights Act as a whole, with the Equal Protection clause.  Because statutory law generally tends to be much more specific, more fully fleshed out, much more detailed, and because individual provisions work together as part of what the Bush v. Gore concurrence called a “legislative scheme,” state election statutes provide much firmer traction than state constitutional provisions for judging what constitutes a “fair reading” of the source of law.  To shift the metaphor, state statutes can anchor judgments of what constitutes departing “too far” from the statutory text and scheme than can most state (or federal) constitutional provisions.

General or broad state constitutional provisions take on more determinate content through the development of precedents.  The text of these provisions is frequently so general that by itself, it does not provide a deep anchor for judgments of what constitutes a “fair reading:” that’s what judges on a state’s highest court frequently disagree about.  But it’s also the case that these provisions might not have been applied all that often to state election statutes that regulate federal elections.  Here is another difference with state statutes:  state election statutes are routinely applied to a range of elections and thus a substantial body of interpretation is much more likely to have developed over years to implement these statutory provisions.  Once again, that provides a much deeper anchor for judging when state actors have departed from a “fair reading” of the statutory framework than from a broad state constitutional provision.  A “plain meaning” rule for statutory terms, for example, is easier to envision than a “plain meaning” rule for highly general constitutional provisions.

If the Court is going to hold that state constitutional provisions cannot be applied at all to these statutes, none of this is relevant.  But for Justices who conclude state constitutional provisions can be enforced, but who wonder whether the principle from the Bush v. Gore concurrence should be extended to state judicial interpretation of state constitutional provisions – so that interpretations that depart from a “fair reading” of the state provisions violate the federal constitution – these significant differences between statutes and constitutions as sources of law need to be considered.

Post-Argument Update: At argument, there was a good deal of discussion — and some disagreement among advocates arguing in support of the NC court’s decision — regarding whether the formal legal standard for when a state court has gone too far beyond a “fair reading” of the relevant legal text should vary depending on whether it’s a statute or a state constitution being interpreted. My points above about the differences between interpretation of statutes v. constitutions remain the same regardless of what the formal standard is. Perhaps these points provide reasons that the standard for a beyond the pale constitutional interpretation should be higher than for a statute. But even if the standards for statutes and constitutions are the same, the key question would be what those standards would mean in application. And as noted above, federal courts would have a much deeper anchor in state law most of the time when it comes to statutes rather than constitutions. Put another way, there is likely to be a more objective basis for federal courts to determine when the application of a statute has gone too far beyond the statutory text and scheme than for a constitutional provision. Statutory tests are far more detailed; they are applied regularly to election issues; election statutes often interact with each other; there is more likely to be a thickly developed body of state judicial interpretation of election statutes than constitutional provisions. For these and related reasons, federal courts would have much less of a firm foundation in deciding state constitutional interpretations had “gone too far” than state statutory interpretations.

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The ISLT:  The Remedial Version

In my testimony to the House outlining different potential versions of an ISLT the Court might adopt, I mentioned a remedial version of such a doctrine.  Without endorsing it, I want to explain further what this version would mean.

This version would apply only to the stage of remedying violations of the state constitution.  The state courts would still have all their normal powers of determining whether state election statutes regulating national elections are consistent with the state constitution.  But if the state court does find a violation, it would have to give the legislature the first opportunity at enacting a new statute in timely fashion that remedies the violation (except in cases of the urgent need for a remedy, which can occur in the context of elections).  The Supreme Court has recognized already that governors retain their power to veto such laws; the Court has also held that if states authorize a voter referendum to veto or approve state laws, the voters can also veto election laws that the state legislature has passed.  When state courts apply the state constitution to invalidate a state law for violating the state constitution – including state laws regulating federal elections – the state courts are similarly, in effect, vetoing that law.  Thus, a recognition that state courts can hold these state laws unconstitutional, just as governors or voters can veto them, would acknowledge that state courts have an analogous role to that which the Court has accepted already for these other actors (if state law has authorized that role). 

While governors can veto state election laws, they cannot enact them.  The remedial version of the ISLT would view courts in similar fashion.  In terms of the Constitution, the justification for this version would be that, when state courts decide on the constitutionality of laws, they are acting in a judicial role, but when they adopt new policies in the context of remedying these violations, they have intruded on “the legislature’s” role as assigned by the Constitution.  Holding a state statutory deadline unconstitutional involves the former, judicial function; deciding what the new deadline ought to be crosses over – in this version of the ISLT – into the legislative role.  Similarly, holding a map unconstitutional involves the judicial role; designing the new map crosses over into the legislative role.  On this version, the courts must give the legislature the first opportunity to remedy the violation, subject to appropriate time constraints. 

This version of the ISLT would apply to the state courts similar principles that the Supreme Court applies to the lower federal courts in remedying constitutional violations, such as those involved in redistricting.  In Upham v. Seamon, 456 U.S. 37 (1982), for example, the Court held:  “In fashioning a reapportionment plan or in choosing among plans, a district court should not preempt the legislative task nor ‘intrude upon state policy any more than necessary.'” (quoting earlier cases).  The remedial version of the ISLT is also the one endorsed by Professors Michael McConnell and William Baude in their Atlantic essay; these conservative scholars might well reflect the views of several Justices.  That’s part of why the remedial version of an ISLT is worth discussing. Of the various versions of a potential ISLT, this one also would be the least disruptive to the way state constitutions and state courts have functioned in this arena.

If the Court were inclined to accept the remedial version of an ISLT, I would hope that Court would recognize that, in the election context, extreme time pressures can be present that require the rules to be settled quickly.  Even if the general principle is that state courts must give legislatures the first opportunity to remedy any violation, if the need for a remedy is so urgent that reasonable time does not exist for the legislature to create the remedy, the courts would be authorized to impose a remedy.  Otherwise, there is a risk of chaos and confusion:  the court strikes down a deadline, but there is insufficient time for the legislative process to generate a new deadline.  Similarly, if when given the first opportunity to adopt a remedy, the legislature’s remedy is itself still unconstitutional, then the courts would have the power to impose a remedy.  Otherwise, this approach would give legislatures incentives to defy the state courts repeatedly.

How would the remedial version apply to the two main state supreme court decisions – from NC and PA — that have been the focus of much debate about the ISLT? 

In NC, the state courts did give the legislature a first opportunity to enact new congressional maps, after the initial ones were held to violate the state constitution.  But the courts found that remedial map to continue to be in violation of the state constitution; only then did the state courts impose a new map.  In PA, the state supreme court decision ordering a new date by which absentee ballots could be received and still be valid was handed down on Sept. 17, 2020.  The court did not give the legislature a chance first to create a remedy; whether there would not reasonably have been sufficient time for a legislative remedy would depend on factual circumstances I’m not in a position to assess.

As this discussion suggests, the remedial version of the ISLT would still generate questions about how long it is appropriate, if at all, to hold open time for a legislative rather than judicial remedy.  But the remedial version would be less disruptive than holding state constitutions cannot be enforced at all, or that general but specific provisions cannot be enforced.

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The ISLT:  How State Statutes and State Constitutions Differ

With the argument coming up next week in Moore v. Harper, I’ve thought more deeply about some of the less obvious legal issues underlying the case.  I plan to do a few posts on these issues.

At least several Justices on the Court are surely inclined to endorse the version of the ISLT that was expressed in Bush v. Gore’s three-Justice concurrence, which then-Chief Justice Rehnquist wrote.  This version is about federal constitutional constraints on state actors – such as judges or election administration officials – when they interpret and apply state statutes that regulate federal election.  In this version, state actors cannot depart from what “a fair reading” of the state election code provides.  This version is not about whether state constitutions can constrain state statutes regulating federal elections and is not directly at issue in Moore.  Nonetheless, it makes sense to consider how to think about the implications of the Bush v. Gore concurrence for the issue directly involved in Moore.

The question I want to raise can be put this way:  if I’m a Justice inclined to accept the Bush v. Gore concurrence’s version of the ISLT, does that logically mean I must also believe state courts similarly cannot depart from what “a fair reading” of the state’s constitution provides in judging the constitutionality of state statutes that regulate federal elections?  But here, a dramatic difference between statutes and constitutions as sources of law must be considered.  State statutes will generally be far more specific and detailed, with provisions that interact with other provisions in the statute, than state constitutions.  In the federal context, compare the difference between Title VII, or the 1964 Civil Rights Act as a whole, with the Equal Protection clause.  Because statutory law generally tends to be much more specific, more fully fleshed out, much more detailed, and because individual provisions work together as part of what the Bush v. Gore concurrence called a “legislative scheme,” state election statutes provide much firmer traction than state constitutional provisions for judging what constitutes a “fair reading” of the source of law.  To shift the metaphor, state statutes can anchor judgments of what constitutes departing “too far” from the statutory text and scheme than can most state (or federal) constitutional provisions.

General or broad state constitutional provisions take on more determinate content through the development of precedents.  The text of these provisions is frequently so general that by itself, it does not provide a deep anchor for judgments of what constitutes a “fair reading:” that’s what judges on a state’s highest court frequently disagree about.  But it’s also the case that these provisions might not have been applied all that often to state election statutes that regulate federal elections.  Here is another difference with state statutes:  state election statutes are routinely applied to a range of elections and thus a substantial body of interpretation is much more likely to have developed over years to implement these statutory provisions.  Once again, that provides a much deeper anchor for judging when state actors have departed from a “fair reading” of the statutory framework than from a broad state constitutional provision.  A “plain meaning” rule for statutory terms, for example, is easier to envision than a “plain meaning” rule for highly general constitutional provisions.

If the Court is going to hold that state constitutional provisions cannot be applied at all to these statutes, none of this is relevant.  But for Justices who conclude state constitutional provisions can be enforced, but who wonder whether the principle from the Bush v. Gore concurrence should be extended to state judicial interpretation of state constitutional provisions – so that interpretations that depart from a “fair reading” of the state provisions violate the federal constitution – these significant differences between statutes and constitutions as sources of law need to be considered.

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NC Chooses Most Extreme Position on Independent State Legislature Theory

When NC filed its opening brief in the independent state legislature case, Moore v. Harper, I commented on this blog that NC’s brief wavered between taking (1) the extreme position that state courts cannot impose any substantive limits on state federal election statutes and (2) it is only so-called “vague” or “general” provisions that they cannot enforce.

Yesterday, NC filed its reply brief and that brief firmly rests its case on (1) the more extreme position. Here’s an example:  “But the question is not whether judicial review is available, but rather what substantive rule of decision applies: that found in the federal Constitution and laws alone or also that found in the state’s constitution. The text of the Elections Clause provides the answer: it assigns state legislatures the federal function of regulating congressional elections.” That is, no matter how specific a state constitutional provision is, it cannot be enforced against state statutes regulating federal elections.”  In other words, only federal law can provide the rule of decisions regarding the legality of state statutes regulating federal elections.

Why did NC ultimately decide to abandon (2), the more narrow position? Perhaps because NC realized what a maze of issues position (2) would generate.

For example, if state courts can only enforce “specific” provisions, how specific is specific enough? Many constitutional provisions, state and federal, are written in broad terms. Does it matter if a state court has given such a provision — say a right to vote provision — more specific content through development of precedents?  If so, does that mean the same provision could be enforced in a state where precedent has been developed on that provision but not in a state where the state courts have not yet developed precedent on the provision?

The position that state courts can apply specific but not general provisions seems to reflect an intuition that the former involves interpretation but the latter is more like lawmaking.  In essence, this involves trying to draw a line between when courts are interpreting a constitution rather than “legislating.” But that is one of the oldest and most long-enduring debates in constitutional theory and in argument over court decisions.

Thus, to endorse position (2) would be to constitutionalize the debate over when courts are interpreting a constitutional provision versus legislating when they apply a provision.  Perhaps that’s why NC abandoned this position and chose the all-or-nothing approach: state court cannot enforce any state constitutional provision against state laws regarding federal elections.

In my testimony to the House on the independent state legislature doctrine, here, I highlighted some of these problems with position (2) – the position that state courts can enforce specific but not general constitutional provisions re federal elections.

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“The Time to Stop a Runaway Presidency is Before it Starts”

I’ve posted this essay, at the Yale Journal of Regulation, which is running a symposium on Peter Shane’s new book, “Democracy’s Chief Executive”. My essay is the first of what will be fourteen essays — one a day — from scholars of the presidency in response to Shane’s book.

Here’s an excerpt from my essay:

…[I]n leaving the confines of constitutional doctrine, Shane neglects the biggest institutional change to the presidency in the last 50 years – the process we now use for selecting the major parties’ candidates for the presidency. Indeed, apart from the Voting Rights Act, this is arguably the single most dramatic institutional change we have made to American democracy in the last half century. This was the shift from the process that had been used for nearly 170 years in one form or another, in which elected party figures from throughout the country had a major say in who the party put forward for the presidency, to the purely plebiscitary system of today in which voters in primary elections (and a few caucuses) completely determine who “the party” nominates. Among major democracies, this makes the United State a complete outlier in how populist a method we use to select our candidates for the most powerful position in the world.

When Arthur Schlesinger, Jr., wrote his magisterial 1973 work, The Imperial Presidency he struggled to find the balance between his view that the country requires a strong presidency and the risk of a runaway presidency. After considering a range of possible legal and institutional reforms, Schlesinger was left to conclude that, in the end, what keeps a strong President constitutional are mainly public vigilance and “checks and balances incorporated within his own breast.” If that is indeed the case, the method by which we select the two major contenders for the office is – or should be – one of the most critical guardrails to keeping the strong presidency within appropriate bounds. The most effective time to stop a runaway presidency is before it gets started.

The convention system was never as simple nor as bad as some of its critics painted it. It was not a system in which only “party bosses” chose the nominees. Primaries played a role; in 1968, on the eve of the convention system’s abandonment, 16 or 17 states held primaries. They were a means by which more outside candidates could show skeptical party figures that they were credible candidates who could compete effectively. But no candidate could succeed without also winning over enough institutional party figures from throughout the country. By ensuring a nominee appealed broadly enough to different factions within the party, the convention system did a fairly good job of filtering out extremists and demagogic figures who pose the greatest risk in an inevitably strong American presidency. Elected party figures typically had familiarity with the major internal party contenders, and could also exercise a type of “peer review” about the competence and fitness for office of contenders. The system avoided 20 or more candidates competing, in which candidates struggle to stand out, sometimes by taking more and more extreme positions. 

To be sure, the convention system had its flaws, most particularly the racially-exclusionary practices of Southern Democratic state parties – practices the Voting Rights Act would soon begin to end. And the post-1968 system of primaries has produced several good candidates. But in designing democratic institutions, there is always the question whether we should design them with the best case in mind, the average case, or to avoid the worst-case prospects. The convention system did a decent job of insuring against the latter. 

In recent years, several major European democracies have moved a bit in the American direction by taking the selection process for party leaders partially out of the hands of elected party leaders and opening the choice up to party members. This is still nothing like the purely populist system we use; to be a party member in these other democracies requires a much thicker connection to the party, such as paying annual dues. The U.K. Conservative Party, for example, has under 200,000 members. But these European parties are beginning to recognize they made a mistake in opening up the selection process even to this extent. Even these smaller party electorates than in the U.S. are more ideologically extreme than voters more generally and less able to judge the competence of candidates to govern. 

In France, for example, the two traditionally dominant used primaries to choose their nominees for the 2017 presidential election. Both candidates came from the more populist wings of the parties, and both were badly defeated in the general election. While there were many reasons for that, the French parties quickly concluded they had made a mistake. These two parties have ended the use of primaries and returned the choice of party leaders to party officials. 

Meanwhile, opening up the selection process to primary voters in the U.K. led to such poor choices that it wrecked both the Conservatives and the Labour Party. Labour began giving members a role in 1994, then expanded that role by making it easier to become a party member. That resulted in the 2015 selection of Jeremy Corybn as party leader, due to strong support from primary voters, despite the fact Labour Party members in parliament never would have chosen him and knew he’d take the party down with him – as he did. Starting in 2001, the Conservatives let their members in Parliament winnow down the field to two candidates, then submitted those to party members for final decision. Liz Truss was not the preferred choice of Conservative members in parliament, but she was the more extreme candidate who appealed most to the party electorate, themselves more ideologically extreme than Conservative voters more generally. Her immediate collapse in office has left the Conservative Party even more tattered. Surely a re-consideration of opening up the selection process in these ways must be taking place now in the U.K. 

 To be sure, the political culture in the U.S. is such that we are not going back fully to the convention system anytime soon. But if we, like Shane, want to understand and minimize the risks of electing presidents with little understanding of the nature and principles of American government or respect for them – or the authoritarian figure Shane wants to rein in – we need to recognize one major root of the risk. Some are working on ways to build back in at least some role for party figures in the selection process. One suggestion is to structure the awarding of delegates from primaries in a way that makes a brokered convention, in which party figures would have to play a key role, more likely. Others suggest members of Congress might rank candidates early in the process, with those rankings potentially being used in various ways, including giving them some weight in which candidates make the main debate stage during the primaries.

I’ll give the last word to Schlesinger, who in the early 1970s could still rely on the convention-based selection system as the strongest barrier to a runaway presidency: “In giving great power to Presidents, Americans have declared their faith in the winnowing processes of politics. They have assumed that these processes, whether operating through … the congressional caucus or still later through the party conventions, will eliminate aspirants to the presidency who reject the written restraints of the Constitution and the unwritten restraints of the republican ethos.” Soon after, we abandoned that winnowing process. We have learned what has followed, not yet what might be to come.

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Unanimous Alaska Supreme Court Issues Significant Opinion on Ranked Choice Voting

The following is a guest post by Mike Parsons (Senior Legal Fellow at FairVote and Program Affiliate Scholar at NYU Law):

On Friday, the Alaska Supreme Court issued an unanimous decision that could provide a significant boost to efforts across the nation to adopt ranked choice voting.

Back in January 2022, the Alaska Supreme Court upheld Alaska’s Top Four system (which uses ranked choice voting in the general election) against a variety of different challenges. (Prior coverage is here.)  At the time, the Court issued a short order and stated that “[a] full opinion explaining this order will follow.” 

One of the arguments in the case was that ranked choice voting purportedly violated Art. III, § 3 of the state constitution, which provides: “The candidate [for governor] receiving the greatest number of votes shall be governor.”  Rick Pildes and I (along with Vic Fischer, the last living signer of Alaska’s constitution) filed an amicus brief in the case explaining why we believed this argument lacked merit and why ranked choice voting should generally be understood to comply with “plurality provisions” of this nature.  Our brief was based in large part on an article that Rick and I published in the California Law Review on the same topic: The Legality of Ranked Choice Voting.

Nearly 40 state constitutions include provisions that declare candidates elected to office if they receive “a plurality of votes” or the “highest,” “largest,” or “greatest” number of votes, so the stakes of this case for RCV were quite high.  Of course, Alaska’s state constitution doesn’t have any direct effect on cases outside of Alaska, but state courts commonly rely upon the reasoning of other states’ high courts when interpreting similar provisions in their own constitutions.  And the Alaska decision provides perhaps the clearest and most compelling opinion on this issue to date. 

Thus far, the only cases analyzing this question directly have been a 1941 case out of Massachusetts that suggested in dicta that RCV would comply with the state’s “highest number of votes” provision and a curt 2017 advisory opinion out of Maine in which the state’s Justices suggested that RCV would violate the state’s “plurality” provision.  (To this day, that is why RCV in Maine applies to federal and state races in primary elections, but only to federal races in the general election.)

The Alaska Supreme Court decision now offers a strong, thorough, and direct analysis – in an on-point case – explaining why RCV complies with the state’s “greatest number of votes” provision.  The opinion also resoundingly rejects Maine’s advisory opinion. 

Here are a few passages worth highlighting on the “plurality” question:

On the deferential role of the judiciary in evaluating electoral reforms: “If the people . . . want to try the system, make the experiment, and have voted to do so, we as a court should be very slow in determining that the act is unconstitutional, until we can put our finger on the very provisions of the Constitution which prohibit it.” (quoting Johnson v. City of New York, 9 N.E.2d 30, 38 (N.Y. 1937)).

On the purpose of plurality provisions (avoiding “failed elections”): “[R]anked-choice voting does not contravene the purpose behind article III, section 2: eliminating the risk of an election with no winner.  Except in the rare instance of a tie, ranked-choice voting will always produce a winning candidate . . .”

On whether RCV “requires” a majority to win: While the winner of an RCV election will always have a majority of the votes in the final round, the Court notes that it is technically possible for a candidate to win “with slightly less than a majority, but still the greatest number, of votes cast.” This is because “voters do not have to select second- or third-choice candidates.”  (A recent example of this is how 20% of Nick Begich’s supporters ranking Begich first and then declined to rank any second choice rather than choosing Peltola or Palin.)

On the Maine advisory opinion:

  • “[T]he Maine Supreme Judicial Court did not explain why its constitution required the election to be called after ‘one round of counting.’ If the vote count is not final after the first round of tabulation, then the candidate in first place after the first round is not necessarily the candidate ‘receiving the greatest number of votes.’ Instead that candidate is simply the candidate in the lead before the votes have been fully counted.”
  • “[T]he Maine Supreme Judicial Court treated the result obtained after the first round of counting as if it were final, without pointing to any text in its constitution that requires votes to be counted in that way or that limits the way a vote can be cast or expressed.  The court discussed at length the history of the Maine constitution’s plurality provision and the state’s history of failed elections but did not explain how ranked-choice voting is any more likely to result in a failed election than single-choice voting.  The [Maine] court’s failure to pinpoint constitutional text, structure, or policies inconsistent with ranked-choice voting leaves us unconvinced by its analysis.

On the meaning of the word “vote”:

  • “[T]here is no question that a ranked-choice vote is a single vote. Rankings reflect alternative votes, not multiple votes. A vote may start with Candidate Alpha, then be redirected to Candidate Bravo, and then be redirected again to Candidate Charlie, but in the end a person’s vote will be tallied for no more than one candidate.”
  • “Nothing in the Alaska Constitution prohibits voting in this way. The constitution does not define or limit the term ‘vote.’ Black’s Law Dictionary defines a vote as ‘[t]he expression of one’s preference or opinion in a meeting or election by ballot, show of hands, or other type of communication.’ A ranked-choice vote is an expression of preference that contains more information than a single-choice vote: I prefer Candidate Alpha best, but if Candidate Alpha cannot win, then I prefer Candidate Bravo to Candidate Charlie. Because a ranked-choice vote contains more information than a single-choice vote, it requires a more elaborate calculation to determine the winner. But it is still a single vote, cast by a single voter, that in the end is counted for a single candidate.”

Another argument in the case was that the “Top Four” primary structure separately violated parties’ associational rights under the state constitution.  Here, too, the Court provided a clear, direct, and persuasive analysis:

On the impact of open Top Four primaries on parties’ associational rights: 

  • “[P]olitical parties do not have a right to control the State’s primary elections. . . . Initiative 2’s nonpartisan open primary places no burden on political parties’ associational rights precisely because it decouples the State’s election system from political parties’ process of selecting their standard bearers. . . . [I]t places no restrictions on how political parties go about choosing their standard bearers. . . . If a political party would like to choose the candidate that best represents its platform by primary election, caucus, or straw poll, it is entirely free to do so. The party can then throw whatever support it can muster behind that candidate’s election bid. The parties’ nomination process stands apart from the primary election, which serves merely to winnow the field of candidates to a manageable number for the general election.”
  • “A candidate’s registration with a party certainly suggests that the candidate supports at least some of the party’s platform. But that is not what the ballot says; it presents only the fact that the candidate has registered as affiliated with the party. The ballot does not suggest that the party endorses the candidate. To the contrary, the ballot expressly disclaims any such endorsement.”

The whole opinion is exceptionally well-written and – as Rick has noted – seems likely to “become a major precedent for other state courts facing the same issue or issues

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More on the Varying Meanings of “Congress” and “Legislature”

This is a guest post from Professor Michael Herz:

In a recent Election Law Blog post regarding the Independent State Legislature doctrine, Rick Pildes observes that the term “Congress” in the U.S. Constitution sometimes means Congress acting alone and sometimes means Congress acting through legislation. Given that, it makes perfect sense that the term “legislature” can also sometimes mean the one and sometimes the other. I agree. This post just expands the intratextual analysis.

Here’s a possible rebuttal to Pildes. In general, the Constitution carefully distinguishes situations in which it expects Congress to act through the legislative process prescribed by Article I, § 7 and when it means for Congress (or part of Congress) to act on its own. The standard formulation for the former is the phrase “by law,” as in “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” The phrase “by law” or “Congress by law” appears 19 times in the original Constitution and 8 additional times in the amendments (9 if one includes the 1st Amendment’s statement that “Congress shall make no law . . .”). Each time, the provision clearly refers to federal legislation.

In contrast, in several provisions where it is clear that Congress is on its own, the “by law” modifier disappears. For example, the pocket veto provision says that an unsigned bill becomes law after ten days “unless the Congress by their Adjournment prevent its Return.” Or consider the requirement in art. I, § 9 that for any officer to accept an emolument from a foreign King, prince, or state requires the “consent of Congress.” Or, most obviously, “Congress” (not “Congress by law”) proposes amendments under Article V. See also art. I, § 10 (approval of interstate compacts).

Why might this matter? One could argue that given this careful usage regarding Congress, one would expect that when the Constitution meant to refer to the state lawmaking process, it would speak of “the legislature by law.” But it does not do that in the Electors Clause (or anywhere else), creating the inference that references just to “the legislature” mean the legislature, period. They are the equivalent to references to “Congress” without the “by law” modifier.

This argument does not work. It does not work for two reasons.

                First, multiple counterexamples destroy the inference that when the Constitution refers to “Congress” doing something without specifying that it is to do that thing “by law” it means Congress acts on its own rather than through the legislative process. For example, consider the statement in art. III, § 2 that the Supreme Court’s appellate jurisdiction is subject to “such exceptions, and under such Regulations as the Congress shall make.” Also in article 3, we see that “Congress shall have the power to declare the Punishment of Treason.” And, most strikingly, accepting this inference would mean that Congress can exercise all its enumerated powers without the President. That is, art. I, § 8 does not say “The Congress shall have Power by law To lay and collect Taxes” etc. It says “The Congress shall have Power To lay and collect Taxes” etc. But absolutely no one would claim that means Congress can do all these things without going through the article I, §7 legislative process.

                The second reason that the absence of “by law” in the Electors Clause is not significant is that the Constitution never refers to a state legislature acting “by law.” So if the Independent State Legislature doctrine holds, then every reference to state legislatures must be read to give authority to the state legislature alone and preclude the involvement of any other state actor. This is not inconceivable. There are not that many such references, several of them in context clearly do refer to the legislature simpliciter, and state governments could continue to function under such a constraint. But this reading still seems unlikely and to be an unnecessary, and ultimately anti-federalism, move.

                Take one provision in particular, the Elections Clause: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Art. I, § 4, cl. 1. Focusing on text (and ignoring the holding of Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015)), one might argue that the reference to “the Legislature thereof” in the first part of the sentence, contrasted with “Congress … by law” in the second part indicates that the state legislature is to act on its own, nonlegislatively, whereas Congress must go through the legislative process. But since there is no reference anywhere to state legislatures acting “by law” the inference is weak. And the “by law” phrase actually supports the opposite inference, for it indicates that the Constitution deems the adoption of election “regulations” to be a legislative act. We know Congress must go through the legislative process to adopt such regulations, why would the state legislature’s first cut at these regulations not be subject to the same process? Indeed, the Supreme Court said exactly this in Smiley v. Holm, 285 U.S. 355, 366-67 (1932).[1]

                All of this is just the long way round to the same conclusion as Professor Pildes and Smiley. “Congress” sometimes means “Congress, period” and sometimes means “Congress, through legislation.” There is no reason to think that the same is not true of “legislature.” To quote Smiley: “Whenever the term ‘legislature’ is used in the Constitution it is necessary to consider the nature of the particular action in view.”


[1] The Court directly addressed the “by law” inference:

Respondent urges that the fact that the words “by law” are found in the clause relating to the action of the Congress, and not in the clause giving authority to the state legislature, supports the contention that the latter was not to act in the exercise of the lawmaking power. We think that the inference is strongly to the contrary. It is the nature of the function that makes the phrase “by law” apposite. That is the same whether it is performed by state or national legislature, and the use of the phrase places the intent of the whole provision in a strong light. Prescribing regulations to govern the conduct of the citizen, under the first clause, and making and altering such rules by law, under the second clause, involve action of the same inherent character.

Smiley, 285 U.S. at 367.

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The term “Congress,” like the term “legislature,” Means Different Things in Different Constitutional Provisions

A major issue in the Moore v. Harper case and about the independent state legislature theory (ISLT) more generally is whether the term “legislature” must mean the same thing in all the constitutional provisions that use it.  In addressing that issue, I want to begin at a different place:  it is undisputed that the word “Congress” has different meanings under different constitutional provisions.

               The Constitution assigns different role and types of functions to Congress.  Congress’ main role is to legislate; the scope of the power to do so is set out in Art. I.  But Congress sometimes act as the proposer of constitutional amendments.  Congress is giving that role in Art. V, which also specifies that these proposals only become effective if they have been approved by ¾ of the state legislature or state conventions convened for that purpose.

               In its role as proposer of constitutional amendments, Congress does not have to present its proposed amendments to the President.  The President does not have been given the opportunity to veto or sign the proposed amendment.  Early Supreme Court precedent recognized that Congress does not have to present proposed amendments for the President’s approval or veto.  Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, 381 n.* (1798) (statement at oral argument of Chase, J.).  Indeed, Congress has not presented numerous proposed constitutional amendments for presidential approval or veto, including the Bill of Rights.

But the fact that Congress acts “independently” of the President in the context of proposing
constitutional amendments does not mean, of course, that it is “independent” in the context of
lawmaking.  When Congress acts in its legislative role, it must, of course, present such legislation to the President for veto or approval.  INS v. Chadha, 462 U.S. 919 (1983).  Thus, although we do not think about this very much, it’s clearly settled that the term “Congress” means different things under different constitutional provisions.  Put another way, the Constitution assigns Congress different functions; in performing some of those functions, such as proposing constitutional amendments, Congress is “independent” in ways it is not when it engages in ordinary legislating.

Similarly, the Constitution assigns state “legislatures” different functions under different provisions.  And just as with Congress, in some of those functions, state legislatures might indeed be “independent” in ways they are not under other provisions.  Thus, in the original Constitution, before the 17th Amendment, state legislatures were assigned the role of electors – they chose the state’s Senators.  If a state constitution before the Seventeenth Amendment had purported to permit direct popular election of Senators, I think a majority of the Court would likely conclude that such a state constitutional provision was unconstitutional – and that conclusion might well be right.  Indeed, in upholding the constitutionality of a voter-initiated state constitutional amendment that created an independent redistricting commission for drawing U.S. House districts, Justice Ginsberg’s opinion for the Court in the Arizona State Legislature v. Arizona Independent Redistricting Commission case, 576 U.S. 787 (2015) (AIRC) recognized that state legislatures might have had unique independence, prior to the Seventeenth Amendment, in their distinct role as electors.

But just as with Congress, the fact that state legislatures might be “independent” when performing certain functions, such as electing Senators, does not mean that they are independent when engaged in the legislative role the Constitution’s Elections Clause assigns them for national elections.  This is a critical point in seeking to uphold the role of state constitutions to constrain state legislative regulation of national elections.  Chief Justice Roberts, in his dissent in the AIRC case, implicitly took the position that the word “legislature” must mean the same thing under all 17 provisions of the Constitution that use that term.  If that premise is accepted, advocates resisting the ISLT in Moore would then be put into the position of having to argue that state constitutions could have created popular election of Senators, even before the 17th Amendment – a losing position, in my view.

The most effective way of persuading that “legislature” does mean different things under different provisions is by highlighting the accepted legal fact that “Congress” means different things when the Constitution assigns Congress different roles – and that we can recognize Congress has more “independence” in certain of these roles than when it is legislating.    

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“If the Court Endorses the ISLT in Moore v. Harper, Which Version Will It Choose and Why That Matters”

Georgetown’s Project on State and Local Government recently hosted a discussion of the Moore case and the independent state legislature doctrine. My contribution is now posted on their blog, here. I’ll also include a few excerpts here:

As we consider the issues raised in the Moore v. Harper case, scheduled for oral argument on December 7, I have emphasized that there is not just one version of a potential “independent state legislature” theory that the Court might adopt, but several different versions. If the Court endorses the doctrine, the practical ramifications will depend on which of these versions it adopts. Moore will not of course address all these versions, only those directly at issue in that case, but it is important to consider the bigger picture.

Before discussing the versions of a potential ISLT most directly involved in Moore, it’s helpful to clarify what the ISLT is not about, because there is a great deal of misinformation about that in wide circulation. Even if the Court endorses the doctrine, I see no prospect that the doctrine would mean governors cannot exercise their ordinary veto powers over state legislation regulating national elections. That issue is a red herring. None of the scholars who endorse the ISLT – there are scholars who do, and of course advocates, as a recent panel hosted by Georgetown Law’s SALPAL shows — believe it leads to the conclusion that governors lose their veto powers. That is evidence of how even proponents of the theory tend to understand its scope. In addition, the Supreme Court has expressly held that the Elections Clause, under which this issue arises, does not affect the state-law powers of governors to veto legislation, and has similarly held that that when state law permits voters in a referendum process to veto state laws, including those regulating national elections, that veto power in the voters remains intact.

Second, no matter what the Court decides about the ISLT, it would still not mean state legislatures could choose simply to ignore the popular vote in their state and appoint presidential electors themselves after the election….

[One] version of the doctrine at issue in Moore would adopt a clear-statement type of rule regarding the ability of state constitutions to impose these substantive constraints. This position would distinguish state constitutional provisions that are clear or “specific” and those that are more “general.” In this version of the ISLT, the former could be judicially enforced in the context of federal elections but the latter could not. Thus, a provision requiring that the state use a Top-2 or Top-4 primary structure for federal election primaries, or a provision banning taking partisan considerations into account in drawing districts would provide a clear statement that would permit state judicial enforcement. But more “general” state constitutional provisions, such as provisions common to many state constitutions that guarantee the right to “free and equal” elections, could not be judicially enforced. On this view, if a state court applies these type of “general” provisions to hold unconstitutional state election laws regulating federal elections, the state court has violated the federal Constitution.

There are passages in the judicial statements of Justices Alito and Thomas in the 2020 election cases that suggest such a “clear-statement” rule. But this position would require federal courts to determine just how clear and specific state constitutional provisions must be to “specific enough” rather than “too general” to constrain state election rules permissibly without violating the federal Constitution. It is not at all clear this distinction can be given principled, consistent content. Absent such ability, a troubling risk exists that federal judicial judgments about this line would rest on highly subjective judgments.

Most state constitutions contain provisions guaranteeing the right to vote, or requiring equal protection of the laws, or securing the right to free and fair elections. Are these provisions unenforceable in federal elections because they are “too general”? Another issue this view would have to confront is how to address “general” constitutional provisions that state courts have given more specific content to over time, through the development of precedent. After all, many constitutional provisions are stated in highly general terms – consider all the Supreme Court precedents determining the meaning of the First Amendment or the federal Equal Protection Clause – but take on much more determinate meaning over time through judicial decisions. If a “general” state constitutional provision has been given “specific enough” content through precedent over time, can state courts now enforce that provision against state election laws regulating federal elections? Will federal courts review that series of state decisions to determine if the decision before them fairly follows from that earlier line of precedent or strays “too far” from it? If the same provision exists in two state constitutions – such as a provision guaranteeing the right to vote – would state enforcement of that provision not violate the federal Constitution in a state that has given the provision much more specific content over time but would violate the federal Constitution in a state with more sparse precedent on the provision?

An ISLT that would distinguish between “specific” and “general” state constitutional provisions would be less extreme than one which precluded application of all state constitutional constraints. But even leaving aside the intrusion on state court development of state constitutional law such a view would entail, any effort to apply that distinction would be fraught with uncertainty, difficult if not impossible to apply in a consistent, principled way, and would pose a serious risk of highly subjective federal court judgment about which constitutional provisions, in which states, could be applied to state laws regulating federal elections. State legislatures have always been understood to be created by their state constitutions, and to be required to act within the limits those constitutions, as construed by the state courts, impose. Hopefully Moore will not disrupt that understanding.

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“Majoritarianism and Minoritarianism in the Law of Democracy”

Sam Issacharoff and I have posted on SSRN this new essay. Here’s the abstract:

Democracies grapple with the tension between the principle of majority rule and ensuring respect for the interest of political minorities, however those might be defined in different societies and different circumstances. As an initial matter, constitutional designers confront this tension in the original architecture of a democratic system. But the balance struck between majorities and minorities is not exclusively settled through the original constitutional design. In the United States, at least, legal doctrine and statutory enactments have also been centrally engaged in ongoing fashion with this fundamental tension.

As this essay chronicles, the law of democracy began with a focus on ensuring the majoritarian basis of American democracy. Over time, the focus then shifted to concern with fair representation of the interests of minorities within the majoritarian system. Now, we argue, the focus of reform efforts is shifting back to efforts to restore the majoritarian thrust of democracy. The law of democracy cycles, perhaps without final resolution, between supporting majoritarianism, concern for minority interests, and back again to shoring up the majoritarian foundations of democracy.

In our era, it is the power of factional minorities who are able to leverage control of plurality winner processes that poses the greatest challenge for American democracy. The threatened tyranny of the minority of the majority now looms as a central challenge that democratic thought, policy, and doctrine must confront.

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A Concise Analysis of Oral Argument in the AL Voting Rights Act Case

The argument traversed a wide range of detail and touched on many important issues. The Court did not seem interested in the most sweeping challenges to the VRA that Alabama’s brief put forward. At the end of the day, I believe the critical legal issues, based on the oral argument, can be distilled into three key points:

  1. The core of the VRA plaintiffs case, in a sentence, is that when voting is racially polarized, Sec. 2 imposes an affirmative obligation to create reasonably compact (or reasonably configured) districts, if possible, that provide a reasonable ability to elect for minority voters.
  • One version of Alabama’s response, which Justices Alito and Kavanaugh pursued most fully, accepts this principle. The argument then becomes whether the second VRA district in this case is indeed reasonably configured.  If the Court were to overturn the lower court decision, this would be the narrowest grounds on which it now appears the Court might do so.  The issues would be largely factual ones about whether a proposed VRA district is reasonably configured.  The way the Court applies this principle might well in practice cut back on how Sec. 2 has been applied in the lower courts; the devil would be in the details of what “reasonably compact” or “reasonably configured” would mean in application. But a decision on this basis would mean that the Court accepted the principle in point 1.
  • A second version of AL’s response, which several Justices pursued (but I think not J. Kavanaugh, though I have to read the transcript), instead takes issue with the principle in point 1. Here the argument is that there is no affirmative obligation to create VRA districts — even if voting is racially polarized — if a large number of computer simulated maps using traditional districting principles would not generate another VRA district. In other words, even when racially polarized voting exists, there is no affirmative obligation to create a reasonably configured VRA district.  The fact that such a district could be created is not enough:  the obligation to do so would exist only if randomly drawn race-blind plans applying the state’s traditional districting principles would produce that result.  Were the Court to adopt this position, there are many further questions that would have to be resolved regarding how to apply it. But a decision on this basis would constitute a much bigger change, both in how Section 2 is understood and in practical application.

Based on the argument, I think the case comes down to these 3 points and how the Court resolves them.  If a majority of the Court does decide to overturn the lower-court decision, much will then turn on whether it does so by taking path 2 or 3.

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What the Independent State Legislature Theory Would Not Do

I’ve written a number of times on what the ISLT would not do, as have Derek Muller, Pam Karlan, and Ned Foley, even if the Court were to adopt the most expansive version of the doctrine. In addition, we have laid out the federal constitutional constraints that would still constrain a state legislature’s attempt to subvert the outcome of any election — state and federal.

It’s worth calling attention to the fact that the Republican National Committee agrees with us on all these legal points. In an amicus brief the RNC filed in the Moore v. Harper case in support of the ISLT, the RNC nonetheless agrees about these continuing constraints on state legislatures. Indeed, the brief devotes several pages to making these points forcefully:

  1. The ISLT would not permit state legislatures to ignore the popular vote in the presidential election and appoint electors after Election Day.
  2. State legislatures, like any other state actor, are bound by the due process and equal protection doctrines that apply in the election context.
  3. Among other things, this means that state legislatures cannot treat votes unequally or arbitrarily. The brief cites Bush v. Gore, as we do, among other cases for this principle. Thus, as the RNC says, legislatures cannot choose “to implement unequal standards for evaluating votes cast; to include only part of the valid votes cast; or to set aside the votes altogether …”.
  4. In addition, the RNC also acknowledges that due process and EP principles deny a state legislature the power to retroactively change the rules — either formally or in practice — under which votes have been cast: “To allow a state legislature to retroactively change the results of a valid federal election implicate similar issues of fundamental fairness that would trigger the protections enshrined in the Fourteenth Amendment.” I’ve explored these prohibitions in my article, Judging New Law in Election Disputes.

There is a lot of misinformation and confusion about these issues in the public commentary about the case. It’s good to see the RNC so strongly endorsing these established legal principles.

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“Rationalizing Democracy: The Perceptual Bias and (Un)Democratic Behavior”

Intriguing experimental paper from Suthan Krishnarajan in the APSR:

Democracy often confronts citizens with a dilemma: stand firm on democracy while losing out on policy or accept undemocratic behavior and gain politically. Existing literature demonstrates that citizens generally choose the latter—and that they do so deliberately. Yet there is an alternative possibility. Citizens can avoid this uncomfortable dilemma altogether by rationalizing their understandings of democracy. When a politician advances undesired policies without violating democratic rules and norms, people find ways to perceive the behavior as undemocratic. When a politician acts undemocratically to promote desired policies, citizens muster up arguments for considering it democratic. Original survey experiments in the United States, and 22 democracies worldwide, provide strong support for this argument. It is thus not deliberate acceptance, but a fundamentally different perceptual logic that drives the widespread approval of undemocratic behavior in today’s democracies.

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