Category Archives: legislation and legislatures

“The Supreme Court Case That’s All About Donald Trump: Even if it’s not explicitly about him at all.”

Quinta Jurecic on thie Moore v. Harper case in The Atlantic:

Over the past several months, both the litigants and outside parties—known as amici curiae, or “friends of the court”—have filed a mountain of briefs hashing out these issues. These amicus briefs preview how much disruption the independent state legislature theory could really create. But more than that, they reveal a legal landscape in which once-wild arguments have suddenly entered the mainstream—a landscape transformed by Donald Trump, not just through his reshaping of the federal judiciary but also through his influence on the ideas that are burbling up. Moore v. Harper may not be about Trump, but it is of his making…

The likelihood that the Supreme Court will adopt Eastman’s 2020 approach—what the law professors Leah Litman and Kate Shaw deem the “‘state legislature as the end of democracy’ theory”—is essentially nil. Indeed, in their reply brief, the North Carolina legislators deny what they term the “scurrilous suggestion” that their argument would provide grounds for an Eastman-style rewrite of the electoral process. But the election-law expert Rick Hasen has warned that “a muscular reading of the independent state legislature theory would provide a fig leaf for state legislators to try to reverse presidential election results and overturn the will of the people in a presidential election.” Hopefully, the judiciary would step in to stop such an abuse of power—but there’s a risk that the Supreme Court might “conclude it is a political question the courts can stay out of,” Hasen told me over email.

And a Supreme Court ruling endorsing some version of the independent state legislature theory in Moore could provide a GOP legislature with legal-sounding cover for such a ploy, even if the theory itself wouldn’t actually bear that weight. Hasen’s own amicus brief—along with briefs filed by the longtime Republican election lawyer Benjamin Ginsberg and a group of conservative lawyers led by a well-respected former judge, Thomas Griffith—warns that a flood of federal litigation challenging actions by election administrators as unconstitutional might create an environment of confusion and distrust that could fuel bogus claims of election irregularities. If the Court adopts the North Carolina legislators’ vision of the independent state legislator theory, Ginsberg wrote, “the credibility of the electoral system” will be a “guaranteed casualty.”

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Ethan Herenstein: “Can State Legislatures Exercise Federal Legislative Power? A Flaw in the Defense of the Independent State Legislature Theory”

The following is a guest post from Ethan Herenstein of the Brennan Center:

In their reply brief defending the independent state legislature theory (ISLT), the petitioners in Moore v. Harper doubled down on the assertion that when state legislatures make rules for congressional elections, they are performing a “federal function”—i.e., exercising federal power delegated by the federal Constitution, rather than state power conferred by state constitutions. This particular argument—which the petitioners raised multiple times in their reply brief—has emerged as one of their principal points. But it’s fundamentally flawed.

In Moore, the petitioners contend that the North Carolina General Assembly could draw congressional maps that violate the state constitution because congressional map drawing is a “federal function assigned to them by the [Elections Clause of the federal Constitution (Article I, Section 4)]” and therefore subject only to “federal constitutional constraints.” They’re not the first to assert as much. Michael Morley, a leading academic expositor of the ISLT, has made a similar claim, insisting that the ISLT is “rooted in the fact that states lack inherent authority to regulate federal elections.” Instead, he continues, “their only power over such elections comes from the U.S. Constitution.”

This argument is inconsistent with Article I’s Legislative Vesting Clause (Article I, Section 1). That clause provides, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Simply put, if the federal Constitution vests “all legislative powers” in Article I in Congress, then the Elections Clause—which is part of Article I—cannot vest any legislative power in state legislatures. (The amicus brief of Charles Plambeck and Joni Walser makes a similar point.) Instead, when state legislatures regulate federal elections under the Elections Clause, they exercise state legislative power, vested by their state constitution, in service of the federal Constitution.

Continue reading Ethan Herenstein: “Can State Legislatures Exercise Federal Legislative Power? A Flaw in the Defense of the Independent State Legislature Theory”
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If Petitioners Get Their Way in Moore v. Harper Case, the Dispute over Saturday Voting in Georgia Senate Runoff Would Spill into Federal Court as Well as State Court

I noted on the blog the other day that the state of Georgia, after losing in the state court of appeals, declined to appeal further the ruling that Georgia law allows counties to set Saturday as a day of early voting in their discretion. The counter argument is that state law does not allow Saturday voting after holidays. The question is one of the interpretation of the meaning of state law. The state GOP has appealed the question to the state supreme court, which is likely to rule very soon, given that we are just a few days away from that Saturday voting.

But I thought it worth pointing out that if the Petitioners in Moore v. Harper get their way, the aggrieved party in state court would be able to get a second bite at the apple in federal court. They would be able to argue—whichever way the state court rules—that the state court has “usurped” the power of the Legislature to alone to “regulate” federal elections. In other words, every bona fide dispute over the interpretation of a state election statute creates not just a state law claim but a federal one as well, putting federal courts into the position of second-guessing state court rulings as a matter of federal constitutional law.

This would be an extra big mess if there were both state and federal races on the runoff ballot, because a federal court ruling would apply only to the federal races and the state rules would control for the state races. It’s really an untenable rule that will inject federal courts into a huge number of garden variety election disputes at the worst time.

(I make this point more fully in my amicus brief in Moore, relying in part of Carolyn Shapiro’s excellent forthcoming article.)

UPDATE: In a brief unsigned order with no noted dissents, the Supreme Court of Georgia allowed early voting on Saturday to go forward.

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Petitioners’ Bizarre Answer in Moore v. Harper Reply Brief About How States Can Rein in Partisan Gerrymandering

Petitioners in Moore v. Harper argue that state supreme courts cannot apply state constitutional provisions limiting partisan gerrymandering to stop state legislatures from gerrymandering congressional districts. Doing so, they argue, would usurp the power of the legislature which “alone” has the power to “regulate” federal elections.

It’s this bizarre theory of free-floating legislative authority, the “independent” in independent state legislature theory being independent of the other bodies of state government like states courts. (Never mind that the Supreme Court in Smiley held that such plans can be subject to a gubernatorial veto).

In their reply brief, Petitioners respond to the argument that siding with them will lead to more partisan gerrymandering by writing the following:

Respondents also contend that enforcing the Elections Clause would prevent voters from responding to political gerrymandering. Non-State Br. 77–78. But States would retain a variety of means for dealing with partisan gerrymanders, including the gubernatorial veto, popular referenda, independent redistricting commissions, and appeals to Congress’s authority to make or alter state election regulations.

Such a bizarre argument. The state legislature may act independent of state courts and state constitutions, but not independent of governors, of the people acting through the initiative process, of independent redistricting commissions (presumably set up by the people acting through the initiative process) and Congress. Not so independent after all. Just independent of a state supreme court that has a view different from that of the state legislature on the scope of the state constitution’s protection of voting rights.

(Disclosure: I’ve filed this amicus brief siding with Respondents in this case.)

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Adam Liptak: “Supreme Court Case on State Legislatures Could Open Litigation Floodgates”

Adam Liptak NYT Sidebar column:

As the Supreme Court prepares to hear a case next month that could radically reshape how federal elections are conducted, it has received scores of friend-of-the-court briefs featuring enough strange bedfellows to fill a hotel.

In them, many prominent conservatives joined their liberal counterparts to argue that the Constitution’s text and history, along with the principles of federalism, contradict what has come to be called the “independent state legislature” theory, which would give state legislatures outsize power in making rules for federal elections.

But the justices may pay special attention to a few briefs that made a more practical point. Accepting the theory, these briefs say, would flood the federal courts — and the Supreme Court in particular — with litigation over all kinds of voting disputes.

Chief Justice John G. Roberts Jr. has said that the Supreme Court should be wary of being drawn into election disputes on novel theories, saying they can make the court look partisan and threaten its legitimacy.

“The intelligent man on the street is going to say that’s a bunch of baloney,” he said in a 2017 argument about the consequences of adopting one way to measure partisan gerrymandering. “It must be because the Supreme Court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”..

f the Supreme Court accepts that legislatures are the only organs of state government that matter in elections, lawyers for the Brennan Center for Justice wrote in a friend-of-the-court brief, countless provisions of state constitutions, decisions of state courts and policies of state election administrators would be called into question.

“The laws and practices it would endanger,” the center’s brief said of the theory, “range from the right to a secret ballot in many state constitutions to independent redistricting commissions in Arizona and California, from ranked-choice voting in Alaska and Maine to automatic voter registration in Michigan and Nevada, from detailed regulations of voter list maintenance in Indiana and Iowa to voting machine testing procedures in Montana and Ohio.”….

Benjamin L. Ginsberg, a veteran Republican election lawyer, warned in another brief that accepting the independent state legislature theory would “make the amount of litigation exponentially greater.”

He added: “That result will be great for the billable hours of election lawyers. But it will be bad for everyone else.”

Richard L. Hasen, an expert on election law at the University of California, Los Angeles, wrote in another brief that the justices should be wary of both the volume of the litigation that the theory would produce and the speed at which it would arrive.

“Election litigation in the United States is already at record highs, up nearly 26 percent in the 2020 election period, compared to the 2016 period, and nearly tripling in the period since the disputed 2000 election,” Professor Hasen wrote. He added that “an expansive interpretation of the Elections Clause surely will fuel much more litigation, placing a heavy burden on federal courts, and especially on this court, as it will be asked to consider an ever-increasing number of time-sensitive, election-related motions on its emergency docket.”

The emergency docket, which critics call the shadow docket, generally yields terse rulings with little or no reasoning based on rushed briefs and no oral arguments. No one thinks the court does its best work in those circumstances.

If the Supreme Court adopts the independent state legislature theory, Professor Hasen wrote, “the high number of election cases on the emergency docket will surge even further.”

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11th Circuit finds eligibility challenge to Marjorie Taylor Greene moot, but one judge finds Georgia had no power to adjudicate her qualifications

From Greene v. Secretary of State (disclosure: I filed an amicus brief in the case), a per curiam opinion (Judges Wilson, Branch, and Lagoa):

As explained, in this federal lawsuit, Rep. Greene is seeking to enjoin the application of the Challenge Statute against her in the state proceedings to prevent her from being disqualified as a candidate for Congress under § 3 of the Fourteenth Amendment. However, the state proceedings under the Challenge Statute have concluded, and Rep. Greene has prevailed at each stage: the ALJ ruled in Rep. Greene’s favor, Secretary Raffensperger adopted the ALJ’s conclusions, the Superior Court of Fulton County affirmed the Secretary’s decision, and the Supreme Court of Georgia denied the Challengers’ application for discretionary review. Ultimately, Rep. Greene was not disqualified from being a candidate for Congress and is presently on the ballot for the upcoming election. Accordingly, we no longer have the ability to accord Rep. Greene meaningful relief.[fn. 1] We therefore hold that this case is moot.

fn. 1: Rep. Greene’s argument that this case is not moot because it falls within the “exception to the mootness doctrine for cases that are capable of repetition, yet evading review” is unavailing. . . . Rep. Greene has not established that the exception applies in this case. . . .

But Judge Branch concurred, explaining that while the case was moot, Greene was entitled to a preliminary injunction at the time she filed the federal lawsuit (her opinion resembles, but has differences for another blog post, Judge Richardson’s in the 4th Circuit, here, and tracks an argument I raised in my amicus brief):

Continue reading 11th Circuit finds eligibility challenge to Marjorie Taylor Greene moot, but one judge finds Georgia had no power to adjudicate her qualifications
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How the parties handle adverse precedent in Moore v. Harper

There’s plenty of precedent for the parties to rely upon in Moore v. Harper. I wanted to see how each side handled one of the toughest cases on either side–and apart from a brief aside from the petitioners, the parties do not argue these opinions should be overturned or ignored. For the petitioners, Arizona State Legislature v. Independent Redistricting Commission. For the respondents (acknowledging it was only a concurring opinion and not the controlling opinion of the Court), Chief Justice Rehnquist’s opinion in Bush v. Gore.

Continue reading How the parties handle adverse precedent in Moore v. Harper
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Muller amicus brief in Moore v. Harper

I filed this amicus brief in support of the respondents in Moore v. Harper. It argues that 2 U.S.C. § 2c requires that congressional single-member districts be drawn “by law,” which embraces state courts and state constitutions, as Justice Scalia’s 2003 opinion in Branch v. Smith explains. Congress has the power to identify state law as the governing rule under the Elections Clause, and I trace the Court’s precedents and Congress’s practices from Ex parte Siebold onward on this point. Crucially, I think there has too quickly been a mistaken interpretation of the Court’s decisions in Davis v. Hildebrant (including the Court’s gloss on Hildebrant in Hawke v. Smith) and Smiley v. Holm–these are first federal statutory issues, not federal constitutional issues, as the brief explains.

(Back in April, I proposed here at ELB a similar congressional statute, and this interpretation of federal law is consistent with that proposal.)

The statutory arguments have received a little attention. For instance, Michael Rosin raises some similar points in his brief. America First Legal (with attorney Jonathan Mitchell as counsel of record) filed a brief in support of petitioners on a different statutory issue, 2 U.S.C. § 2a(c) . And a group of states (led by Arkansas and Arizona) filed a brief in support of petitioners rebutting the argument that § 2c applies (see pp. 20-22 of the brief).

This does not address many other questions that federal law does not presently cover, and certainly does not address any Article II issues. But it’s an important issue nonetheless and one I hope the Court carefully considers.

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Bevy of Amicus Briefs Supporting Respondents in Moore v. Harper, the Independent State Legislature Theory Case before the Supreme Court

Among the more interesting briefs being filed include: ACLU, Evan Bernick, Bipartisan Election officials, Bipartisan election administrators, the Brennan Center, CAC, CLC et al, Democracy and Race scholars, Atiba Ellis, Former Republican Officials, Founding Era Historians (including Jack Rakove), Ben Ginsberg, Lawyers’ Committee et al, LDF, Local Government Profs, LWV, Derek Muller, Arnold Schwarzenegger, Professors Shapiro, Stephanopoulos, and Tokaji (HLS Election Law clinic) State Constitutional Scholars, United States, and Sheldon Whitehouse and Hank Johnson.

My brief (with Manatt) is here. Thanks to Nat Bach, Tina Lapsia, Matt Bruno, and Benjamin Shatz for a great collaboration!

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My New One at Slate with Nat Bach:”The Supreme Court Is Headed for a Self-Imposed Voting Caseload Disaster”

Nat Bach and I have written this piece at Slate. It begins:

On Dec. 7, the Supreme Court will hear oral argument in Moore v. Harper, a radical case on the fate of the so-called “independent state legislature” theory which could end the ability of state courts to interpret their own state’s election laws as applied to federal elections, thereby closing their doors to a wide swath of voting rights suits. Although there are many persuasive arguments against the ISL theory—including that it is inconsistent with the texthistory, and precedent of interpreting the U.S. Constitution—we have argued in a just-filed amicus brief that there’s a self-interested reason for the Supreme Court to reject the ISL argument as well: It will lead to a flood of new federal litigation that will undermine voter confidence in elections, harm the legitimacy of the courts, and pave the way for potential election subversion….

Moreover, the petitioners’ argument in Moore ignores how election laws are made, interpreted, and implemented. As a practical matter, state legislatures cannot draft detailed regulations that cover every aspect of the administration of federal elections, and any drafting is sure to leave gaps and ambiguities in statutes as new issues arise. In practice, state legislatures cannot “regulate” federal elections alone because there is so much detail for conducting elections simply absent from statutory text. Therefore, state administrators and state courts, in every state, must routinely interpret state election laws on matters pertaining to early voting, absentee voting, mail-in balloting, electioneering, redistricting, and the mechanics of normal election administration.

If the Supreme Court agrees with petitioners, it will invent an entirely new constitutional cause of action in all of these instances, significantly burdening federal courts. Each state judicial or administrative act of gap-filling or interpretation would become the basis for a federal constitutional lawsuit based upon some alleged discrepancy between the statutory text and the interpretation and implementation of that text by the state’s judicial and executive branches. Worse, each time a state court decides if a state or local election administrator has gone too far, that ruling itself would open the floodgates to new litigation in federal courts, framing these issues as a federal constitutional violation of the elections clause.

Election litigation in the United States is already at record highs, up nearly 26 percent in the 2020 election period compared with the 2016 period, and nearly tripling in the period since the disputed 2000 election that culminated in Bush v. Gore.

Further, we’ve compiled statistics on emergency election litigation filed in the Supreme Court, and the numbers are also high. There have been at least 65 of these cases in the last dozen years. In the 2016 term alone, the Supreme Court considered 11 emergency election-related petitions, and in the 2020 term there were 15. Most recently, there were seven in the 2021 term, a non-presidential–election year.

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My Amicus Brief in Moore v. Harper Case (Independent State Legislature Theory) Filed

You can find the brief here. The Summary of Argument begins:

Petitioners’ expansive interpretation of the Elections Clause—the so-called “independent state
legislature” theory—likely will lead to a flood of new federal litigation that will further destabilize American elections and contribute to decreased public confidence both in the judiciary and in the fairness and integrity of the U.S. election system. Were Petitioners’ interpretation adopted, destabilization and loss of confidence would be inevitable as federal courts, especially this Court, would be called upon frequently to second-guess state administrative and judicial interpretation and implementation of state election laws. This
confidence crisis would emerge regardless of how carefully and competently officials run elections, state courts interpret and apply state election laws, and federal courts review those decisions of state courts and election administrators.

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“Congress,” the Presentment Clauses, and Moore v. Harper

I appreciate the posts from Professor Rick Pildes and Professor Michael Herz on the nature of “Congress” under the Elections Clause, but I take a different approach. I don’t think “Congress” means different things in different parts of the Constitution. I think different parts of the Constitution constrain “Congress” in different ways.

Continue reading “Congress,” the Presentment Clauses, and Moore v. Harper
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Conservative Luminaries (including former DC Circuit Judge Thomas Griffith) File Amicus Brief in Moore v. Harper Siding with Respondents

This is an interesting one that will get some Justices’ attention. It argues that the North Carolina Republicans are wrong even if one accepts the concurrence by Chief Justice Rehnquist in Bush v. Gore and the dissent by Chief Justice Roberts in the Arizona Independent Redistricting Commission case.

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“The Conservative Stalwart Challenging the Far-Right Legal Theory That Could Subvert American Democracy”

Jane Mayer in the New Yorker:

A powerful new litigant has joined one of the most momentous cases slated to be heard by the Supreme Court this term. The respondents in the case of Moore v. Harper filed a brief today that included a surprising new signatory: J. Michael Luttig, who has been known for years as perhaps the most conservative Republican judge in the country. Now, though, he has joined a coalition of veteran lawyers and nonpartisan government-watchdog groups who are fighting against a far-right Republican election-law challenge—one so radical that critics say it has the potential to end American democracy as we know it.

The former judge is a surprising co-counsel to Neal Katyal, the well-known Supreme Court litigator. Katyal is a counsel of record in the case for several respondents opposing the far-right groups, including Common Cause and the North Carolina League of Conservation Voters. The case is scheduled to be heard by the Court on December 7th. Luttig told me that he signed on as Katyal’s co-counsel because he regards Moore v. Harper as “without question the most significant case in the history of our nation for American democracy.” Putting it more colloquially, he said, “Legally, it’s the whole ballgame.”

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