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.