Both before and during the argument in Moore v. Harper, I wrote about the possibility that the Court might think about extending the approach in the CJ Rehnquist’s Bush v. Gore concurrence – which was about state court statutory interpretation – to the domain of state court constitutional interpretation.  I’ve also suggested that this approach is more difficult in the constitutional domain, given the much higher level of generality at which most constitutional provisions are drafted.

To explain those difficulties further, it might be useful to ask how the Supreme Court’s own major precedents concerning the law of democracy would fare under this approach – that is, if state courts had rendered similar decisions under similar state constitutional provisions, before the Supreme Court had issued these rulings, would any or all of those decisions violate what I’ll call the Moore v. Harper test?  As one version of that “test” discussed at argument, I’ll use the precise version Don Verrilli articulated:  “And we think the standard is that you’d ask whether the state decision is such a sharp departure from the state’s ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law.”

The reason I raise this issue is most major Supreme Court precedents in this area represented fairly avulsive changes in constitutional law.  I’ll highlight some of the more important ones, in chronological order.  I won’t try to resolve the issue of how these decisions would fare under the “fair and substantial basis in law” standard, and the debate about that might vary from decision to decision.  But these cases present the types of questions federal courts would have to answer about state constitutional interpretations under the Verrilli test (or any version of such a test):

• Reynolds v. Sims (1964):  establishing under the EP clause the one-person, one-vote rule, despite Court precedent and long historical practice. 
• Harper v. Va. State Bd. of Elections (1966) and Kramer v. Union Free School District No. 15 (1969):  recognizing for the first time that the right to vote is an unenumerated fundamental right under the EP clause and applying strict scrutiny to voting laws.
• White v. Regester (1973):  holding that the form of an election structure (at-large elections or multi-member districts) could constitute unconstitutional racial vote dilution.
• Davis v. Bandemer (1986):  recognizing a cause of action under the EP clause for partisan gerrymandering challenges. 
• Bush v. Gore (2000):  holding for the first time that the EP clause applies to the way individual ballots are treated in a statewide election.

This is not to say that any decision which breaks new ground might raise issues under the “fair and substantial basis in law” standard.  For example, although Buckley v. Valeo (1976) constituted the first time the Court struck down limits on campaign spending as a violation of the First Amendment, a substantial body of FA law existed by then on which the issues in Buckley could be debated.  Whether one thinks Buckley was rightly or wrongly decided, I don’t think there’s any likelihood the decision would fail this “fair and substantial basis” test. 

But the law of democracy decisions I’ve noted raise more challenging questions under that test because they constituted much more sharp breaks, under the broad generalities of the EP clause, from prior doctrine (and from long-standing historical practice and the original public understandings of the clause).  None of this is to say anything about the correctness of any of these decisions; the question is how they would fare in the search for decisions that go so far beyond a “fair and substantial basis test” that they would violate the federal constitution if decided by a state court initially under a state constitutional provision with similar history and precedent (these issues are related to a talk I gave on “Originalism and the Law of Democracy,” on a panel at which then-Seventh Circuit Judge Amy Coney Barrett also spoke, at which I argued that originalists had not yet addressed how much of the law of democracy was inconsistent with originalist principles).

To bring this to bear on the NC decision at issue in Moore, compare that to the dissenting opinion for four Justices in Common Cause v. Rucho, based on the EP clause, which would have struck down certain partisan gerrymanders for the first time in the Court’s history.  It’s hard to imagine that an opinion four Justices on the Supreme Court issued would – if a majority opinion of a state court under analogues to the EP clause – fail this “fair and substantial basis” test.  If the answer is that’s because Davis v. Bandemer had already been decided, that just pushes the question back one step:  would Davis v. Bandemer violate this test?

These are the kinds of questions the Court inevitably is going to have to grapple with if it concludes that the Elections Clause is violated when state constitutional-law decisions lack a “fair and substantial basis” in law. 

Listen.

Here are some things that struck me listening to the argument today.

1) What will the RKB triumvirate do? As Rick Hasen noted in his post, the question is which way will Roberts, Kavanaugh, and Barrett go. My guess is that Roberts goes with the conservatives and Kavanaugh and Barrett join Kagan for a middle ground. Though Roberts did not express strong support for the ISL position, compared to Gorsuch or Alito, he seemed to be very open to imposing meaningful limits on state courts. His opening exchange with Verrilli I think is indicative.

He seems to share Gorsuch’s distrust of state courts as against state legislatures (what if courts adopt the efficiency gap, or they delegate broad authority to special masters). And he attempted to walk back or reinterpret his statements in Rucho. Moreover, he seems to believe that there is a question of federal power at stake here. So, I expect him to go with the conservatives and then the question is how high of a standard will they impose on state courts.

By contrast, to the extent oral argument questions are indicative of anything, Kavanaugh and Barrett seemed willing to give state courts a fair amount of deference in interpreting state statutes or constitutions. Though they are willing to buy some version of ISL–that is, they believe that the Elections Clause imposes some judicially-manageable limits on state courts–they did not indicate a belief that the standard ought to be stringent. They seem to want the standard to be clear.

It’s foolish to guess what these two will do, but their questions seemed more consistent with the position of the respondents than petitioners. Barrett seemed skeptical that the standards articulated by petitioners were workable (e.g., substance v. procedure distinction, novelty, egregious departure) and David Thompson, the advocate for petitioners, did not have good answers here. Kavanaugh’s questions for Thompson were also particularly trenchant and I don’t think Thompson’s answers were persuasive.

2) Constitutional basis for the federal standard: Due Process v. Elections Clause. Rick Hasen argues that the Court can use the Due Process Clause to find the federal standard. I don’t think clause-switching makes a difference here. Whether the standard comes from the Elections Clause, Due Process Clause or some other part of the Constitution, the Court will have to articulate it and defend it. Moreover, I have a hard time seeing a majority splitting the violation and the standard. That is, if the Court thinks that the NC Supreme Court’s reasoning violate the Elections Clause, I’d be surprised if they then looked to Due Process to articulate the standard.

3) State Statute v. State Constitution. One theme of the argument was whether state constitutions and state statutes ought to be treated differently. Rick Pildes has written a thoughtful post on this. It was one point of agreement between Thompson and Neal Katyal (arguing for respondents). Again hard to tell from oral argument, but It’s not clear to me that any Justice other than Jackson was willing to buy that distinction and Kagan seemed to be very skeptical. Verrilli and Prelogar argued that the distinction not was theoretically significant but might play out differently in application. I think Rick Pildes is obviously correct on the distinction between general principles and specific guidance. But it’s not clear to me that one has to take the categorical approach that Katyal took. I think that argument was a distraction for the respondents.

4) Are both sides articulating the same standard? The Chief asked a question of Katyal that I don’t think received a lot of attention. He asked whether Katyal and Thompson were both articulating the same standard. He quoted from Katyal’s brief saying that the standard can be a significant departure from state law (statute/constitution) and compared that to Thompson’s argument that the standard can be egregious departure from state law. There’s an argument to be made that petitioner’s standard (novelty or egregious departure) is in fact sky high and not that different from what respondents would want. And that even under petitioners’ standard, respondents should win.

5) The Solicitor General, Elizabeth Prelogar continues to be amazing in oral arguments.

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.

Further Update : On re-reading the transcript of the argument, I noticed that Don Verrilli made this same point — that the application of whatever standard the Court might adopt ought to be different in the context of constitutional interpretation, given the distinct nature of constitutions compared to statutes:

Verrilli: “And so I — I could see in application the standard might work out differently in some cases but I don’t think it’s a difference in the standard as much as the application of the standard.”

This Friday, December 9 at noon (ET), Election Law at Ohio State is hosting a roundtable of election law experts, as we have previously. This time is to reflect on the 2022 midterms and consider key issues confronting our election systems in the months and years ahead. Panelists include Rebecca Green, Lisa Manheim, Derek Muller, Nate Persily, and Charles Stewart. My colleague Steve Huefner will moderate, and I look forward to participating.

For more information about the webinar and to register, click here.

I just posted this book chapter on partisan gerrymandering, which will be part of the Oxford Handbook of American Election Law (coming out next year). Thanks to Gene Mazo for assembling and editing the volume and organizing terrific workshops for contributors.

This chapter addresses the law and academic literature about partisan gerrymandering: crafting districts with the intent and effect of benefiting the line-drawing party. With respect to the law, the chapter covers the depressing arc of federal anti-gerrymandering legislation as well as the somewhat more encouraging record of state constitutional litigation. The chapter further discusses enacted state and proposed federal redistricting reforms, in particular, requirements that districts be designed by independent commissions. With respect to the academic literature, the chapter surveys four live debates: whether gerrymandering should be conceived in terms of intent or effect; whether the impact of gerrymandering should be assessed using absolute or relative measures; what the main drivers of district plans’ partisan biases are; and how these biases affect broader democratic values. The ongoing contributions to these and other debates show that, while gerrymandering may no longer be justiciable in federal court, it remains an active topic of legal and political science scholarship.

Listen.

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.

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.

Watch here:

CNN:

The Arizona Secretary of State’s Office on Friday asked state and local prosecutors to investigate and take enforcement action against two Republican officials who had balked at certifying their county’s election results by the legal deadline.

In the referral letter, State Elections Director Kori Lorick said Cochise County Supervisors Tom Crosby and Peggy Judd “knew they had a statutory requirement to canvass the election by November 28, but instead chose to act in violation of the law, putting false election narratives ahead of Cochise County’s voters.”

The supervisors’ “blatant act of defying Arizona’s election laws risks establishing a dangerous precedent that we must discourage,” Lorick wrote in the letter sent to Attorney General Mark Brnovich and Cochise County Attorney Brian McIntyre. “I ask that you investigate this conduct and take all necessary action to hold these public officers accountable.”

When reached by phone Friday, Judd said: “I’m not talking to anyone anymore. Sorry.” CNN also has reached out to Crosby for comment.

Brnovich’s office confirmed via email that it had received the letter but did not add further comment.

McIntyre did not immediately respond to CNN’s inquiry.

The referral comes a day after Judd and the board’s sole Democrat, Chairwoman Ann English, voted to certify the midterm election results after a judge ordered them to do so – guaranteeing that the county’s roughly 47,000 general election votes would be included in next week’s certification of statewide results.

In anticipation of the Moore v. Harper argument, Dallas Woodhouse defends the Pinckney Plan papers that have been subject to historical controversy.

Derek Muller will be primary ELB blogger next week.

On Wednesday, December 7, the Supreme Court will hear oral argument in the Moore v. Harper case. I will be live blogging the audio of the oral arguments right here on ELB. And I’m sure many other ELB contributors will have their own things to add. (Disclosure: I filed this amicus brief supporting Respondents in the case.)

Stay tuned!