This is the first in a few posts looking at litigation comparable to the issues in Moore v. Harper to see if any lessons can be learned from those areas. I started with the Takings Clause here. I’ll look at habeas next.Continue reading Election litigation after Moore v. Harper–lessons from habeas review of state courts
ELB readers may recall my post last year on Colorado General Assembly v. Salazar (2004). There, the Court, over three dissenting justices, denied cert in a Legislature Thereof Clause dispute under the Elections Clause in Colorado’s redistricting. A lot of parallels arose in that case that came out in Moore v. Harper.
Yesterday, I blogged about why I thought there might be a lot of litigation, but not a lot of success. In particular, I want to focus on one element of this–and one lesson learned from the litigation that followed Colorado General Assembly. It is going to be difficult (but not impossible) to get lower federal courts to hear these cases for a variety of procedural reasons.Continue reading The limited path for litigation after Moore v. Harper was set out in a series of related cases between 2004 and 2007
Moore v. Harper, much like Allen v. Milligan, was a shocker for me. Given how the posture of the case had changed, I didn’t expect the justices to reach the merits. I’m glad they did. A few thoughts:
1) In some ways, Moore v. Harper reads as a reaffirmation of the concept of judicial review, closing the loop on this idea that the Elections Clause is an exception to this principle that insulates state legislative action over federal elections from review in federal court and, until this case, possibly state court. While state courts are differently positioned than their federal counterparts, I had underestimated how much the Supreme Court might view this case as a threat to the concept of judicial review, more generally.
In Rucho v. Common Cause, the Supreme Court held that partisan gerrymandering claims were nonjusticiable political questions that would not be heard in federal court. But the Court also explicitly rejected the idea that claims brought under the Elections Clause, unlike those brought pursuant to the Guarantee Clause, were judicially unreviewable. These two principles are not necessarily in tension because it could be the case that partisan gerrymandering claims are just not the type of Election Clause claims that the Court feels capable of resolving even though other types of claims under this provision might be more manageable. Despite the Court’s assertions to the contrary, however, Rucho might have opened the door for the Elections Clause to function as a provision that has limited judicial enforcement, a sentiment that the Court sought to shut down in Moore v. Harper.
2) Second, what does Moore mean in light of Milligan, the Alabama Section 2 case from a couple of weeks ago that shocked every election scholar I know? One might say that the Court is affirming that it is still very much a player in the democracy space, again pushing back against the (rightful) perception that, after Rucho and Bronovich, the Court is less committed to policing our system of democracy. In addition, both Milligan and Moore offer an opportunity for the Court to push back against these negative perceptions by simply reaffirming the status quo. Milligan reaffirmed that Section 2 vote dilution claims are still actionable under the Gingles framework, and Moore rejects a theory that would have caused a sea change in how state courts oversee the actions of state legislatures with respect to federal elections. The Court gets a huge pay off, in terms of maintaining its legitimacy, but by structurally changing very little.
3) There are a couple things at play in Moore that run contrary to our assumptions about the Court’s more general anti-Democratic posture that are worth pointing out. First, there may just be some arguments that go too far, and would be too disruptive should they become law, that they turn off some of the more conservative members of the Court. That says a lot about where we are as a democracy, and where this Court is as an institution.
To this point, Chief Justice Roberts (writing for the majority) discusses Arizona State Legislature v. Arizona Independent Redistricting Commission as proof that legislatures are not the sole source of lawmaking authority over federal elections within a state, even though he wrote a lengthy dissent in that case arguing that the term “legislature” as used in the Elections Clause means the institutional legislature and not the broader lawmaking processes. He reliance on this case, despite his very heated dissent, is further proof (along with Justice Thomas’ reliance on the case as well) that the goal posts have moved from basic questions of whether “legislature” means “legislature” to more nuanced concerns about whether legislatures should be given broad authority, subject only to very little oversight from a massively dysfunctional Congress, to blow up any notion of democracy within their borders. Roberts is known for using subsequent cases to minimize or subvert holdings that he doesn’t necessarily agree with, but he doesn’t do that here (at least not as much as he normally does, see point 4 below).
Second, John Roberts, in rejecting the independent state legislature theory, might be defending his legacy. He wrote Rucho, which asserted that state law and state courts could be a more than adequate response to the ills of partisan gerrymandering than any remedy the federal courts could provide. Would he be willing to sign on to any theory that could call into question a decision (and a controversial one, at that) that Roberts authored less than five years ago? Probably not. Again, it is not that the author of Shelby County has become a huge democracy advocate but he might feel the need to defend his turf a bit.
I am sure that, given these stakes, 100 years of precedent rejecting the idea that state legislatures have exclusive authority to regulate federal elections is much more persuasive than the Federalist 78, which the dissenters rely on to argue that state legislatures are empowered in this manner. Moore is also a very common-sense decision – state legislatures cannot be free of the constraints of the documents (state constitutions) that created them nor has it been true that state legislatures exercise power in this domain independent of the other branches of state government. The fact that we had to contemplate otherwise is an insane bit of nonsense that I hope died a sure death today.
4) To be clear, I am not asserting that the Roberts Court has all of a sudden become the Warren Court. Towards the end of the opinion, in typical Roberts form, he offers some vague constraints on state courts that apply when they are policing state legislative action on the Elections Clause, a standard that (as Derek points out here) very much resembles the standard offered by Chief Justice Rehnquist over two decades ago in Bush v. Gore. In some ways, this standard is Roberts’ attempt to make sure that “legislature” means “legislature” as much as he possibly can without explicitly running afoul of Arizona Independent Redistricting Commission while staying true to the text of the Elections Clause, which empowers the legislature to set the manner of federal elections. What this vague test – that “state courts may not transgress the ordinary bounds of judicial review” – actually means will almost certainly be a point of controversy in years to come. Policing whether state courts have crossed this line will keep federal courts in the business of overseeing federal elections for the foreseeable future, contrary to what Roberts had hoped to achieve in Rucho.
The top line takeaway of Moore v. Harper is this: the Supreme Court has slammed the door shut on the argument that the state constitution or state judiciary cannot constrain the state legislature exercising power under the Elections Clause.
But Part V of the opinion, as Rick H. and Rick P. have already blogged, expressly leaves open the question of when state courts go “too far.” Part V opens, “Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein.” And later, “We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”
In doing so, the Court looked to Bush v. Gore (2000):
Chief Justice Rehnquist, joined in a concurring opinion by JUSTICE THOMAS and Justice Scalia, acknowledged the usual deference we afford state court interpretations of state law, but noted “areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law.” Id., at 114. He declined to give effect to interpretations of Florida election laws by the Florida Supreme Court that “impermissibly distorted them beyond what a fair reading required.” Id., at 115. Justice Souter, for his part, considered whether a state court interpretation “transcends the limits of reasonable statutory interpretation to the point of supplanting the statute enacted by the ‘legislature’ within the meaning of Article II.” Id., at 133 (Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting).
In other words, the Court–and no justice dissented from this view–seems entirely amenable to the concept promulgated by the Chief Justice, that at some point state courts go “too far” in interpreting state law.
I pointed out back in March 2022 here in a post-Rucho analysis ahead of Moore that this “weak” version of an interpretation of the Legislature Thereof Clauses had some broad support, even among skeptics. After oral argument, I blogged about how there was strong consensus on the Court about some “middle way”–a narrow standard that would apply to some outlier cases. The Court here did, indeed, find such a boundary–but it failed to coalesce around what that boundary looks like: “We do not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause. The questions presented in this area are complex and context specific.”
Justice Kavanaugh writes separately to point out that “deference is not abdication.” The varying approaches, whether Rehnquist’s opinion in Bush v. Gore or the Solicitor General’s articulation of the standard in Moore, for determining when a state court goes too far are likely not that different, and that… well, the Court may decide it another day.
In other words, the theory behind Rehnquist’s opinion has broad support–a state court can go “too far.” But the articulation of that theory–and, of course, the application of that theory in a given case–remain disputed.
Part III of Thomas’s dissent (here, joined by Justice Gorsuch) expresses significant concerns with this approach. True, Part II of his opinion suggests that a state court cannot control “what substantive laws can be made for federal elections”–surely a limitation of when a state court goes “too far.” But the narrower approach by the majority, he understandably worries, “opens a new field for Bush-style controversies over state election law.” Part III is ripe with open questions for future litigation (or law review article exploration!).
I am probably less worried than other bloggers here or than Justice Thomas about how this plays out on the ground. I have no doubt that there will be a new tranche of “Bush-style” election litigation. But the procedural posture is less likely, as he puts it, “to demand that federal courts develop some generalized concept of ‘the bounds of ordinary judicial review.'”
First, if the fundamental problem is state courts construing state law beyond what the Legislature Thereof Clauses permit, the solution is likely not a collateral attack in the district courts but a petition for certiorari to the Supreme Court, which will, I assume, dismiss the overwhelming majority without explanation.
Second, if collateral attacks do arise, they will likely arise in a different posture (e.g., state executives going “too far”–a question not addressed in this case, but the kind at issue in 2020 in the Eighth Circuit’s decision in Carson v. Minnesota) or will face significantly jurisdictional hurdles (e.g., Rooker-Feldman).
Third, state courts are on notice. True, it’s possible some are emboldened in the judicial terms ahead (I worry, for instance, specifically about hotly-contentious state courts in closely-contested election states that are facing changing personnel dynamics, like Wisconsin). Alternatively, they will likely explain how their decisions naturally follow from previous precedent and remain with the heartland of ordinary judicial review. I think Rick P.’s post last year helpfully identifies some of the challenges of this approach, depending on the level of generality one uses in describing past precedent. But my instinct is that if state courts recognize that some explanation of their trajectory is necessary, it will lessen the likelihood of running afoul of any Part V standard from Moore.
There is no question the opinion leaves open litigation routes for challengers and uncertainty for elections in the years ahead–as Thomas points out, “some of the most politically acrimonious and fast-moving cases that come before them.” And we’ll see how it plays out in the months ahead.
To continue my sovereign immunity discussion from yesterday, a federal court last year found that Congress did not abrogate state sovereign immunity under the Voting Rights Act. Congress must do so with “unmistakable clarity” when enforcing the Reconstruction Amendments, per Supreme Court precedent. You can sue the secretary of state; you cannot sue the state.
But a couple of federal district courts have been looking at the same issue from a different angle, under the National Voter Registration Act of 1993. They look at a different clause of the Constitution, the Elections Clause. Over the last couple of decades, the Supreme Court has increasingly found exceptions to what was once thought to be a stronger presumption that Congress lacked the power to abrogate state sovereign immunity under its Article I authority. But since then, it has decided cases involving bankruptcy, war powers, and eminent domain where states, under the “plan of the [constitutional] convention,” surrenders some of their sovereign immunity. And so, the Elections Clause has been a topic of some discussion in the lower courts.
In Illinois Conservative Union v. Illinois, a federal court issued this brief docket order in 2021: “Under the plan of the Convention doctrine, the Court finds that Plaintiffs may proceed against the State and the Board and denies the State and the Board’s motion to dismiss the NVRA claim 5 based on sovereign immunity.”
A more fulsome evaluation took place in a different federal court in Illinois in Public Interest Legal Foundation v. Sandvoss in 2022 (lightly edited):Continue reading Two federal courts have recently found that states have no sovereign immunity under the Elections Clause
Rick H. links to the Supreme Court’s order in Moore v. Harper requesting more briefing. According to the Supreme Court’s docket, no party has raised the fact of the rehearing scheduled in the North Carolina Supreme Court, which has been known publicly for about a month. In that rehearing, the state court may reconsider its previous holding that the state constitution forbids excessive partisan gerrymanders, including partisan gerrymanders of congressional maps.
So the first intriguing part of this case is that the Court raised this sua sponte. Indeed, when it comes to this specific issue of whether there is a “final judgment,” the Court can raise it on its own motion. See Johnson v. California (2004) (“It is our obligation to raise any question of such compliance on our own motion, even though counsel has not called our attention to it.”). Several things crop up…. Warning, long, semi-coherent thoughts ahead!Continue reading “Final judgment,” not mootness, at issue in latest Moore v. Harper twist
Over at Just Security, Kate Shaw has a piece entitled, “Oral Argument in Moore v. Harper and the Perils of Finding ‘Compromise’ on the Independent State Legislature Theory.” From it:
[A] majority may be willing to sign onto some version of the theory, even if a more circumscribed one. Depending on what that looks like, the theory could have important implications for future elections—both congressional and presidential. The “blast radius,” as Neal Katyal repeatedly called the potential effects of the Moore decision during Wednesday’s argument, appears unlikely to be as wide as many initially feared—and as the North Carolina legislators are still seeking—and the decision might not immediately “wreak havoc in the administration of elections across the nation,” in the words of Solicitor General Elizabeth Prelogar. But, in the effort to find a “middle ground” or the like, the Court may nevertheless embrace some version of the ISLT. That is both alarming in its own right, and could invite future challenges that allow the Court to go still further.
The following is a guest post from Travis Crum:
The Supreme Court recently heard oral argument in Moore v. Harper, which concerns the definition of “legislature” in Article I’s Elections Clause and the so-called independent state legislature theory (ISLT). A core dispute in the case is whether—and to what extent—state constitutions can restrain state legislatures’ regulation of federal elections. Accordingly, the parties and the Justices deliberated over historical examples of state legislatures regulating federal elections. However, this discussion overlooked an important historical episode concerning the analogous power of “legislatures” exercising ratification authority under Article V.Continue reading The Fifteenth Amendment and the Independent State Legislature Theory
The podcast is here.
During oral argument in Moore v. Harper today, one could be forgiven to forget that Chief Justice William Rehnquist passed away nearly two decades ago and is not currently sitting on the court. He was invoked more than a dozen times. His concurring opinion in Bush v. Gore, an opinion much maligned in the bulk of academic commentary on the topic and untouched by the Supreme Court for many years, seemed to attract the attention of the Court as a “middle way.”
There’s a lot to unpack from this development alone.Continue reading Turning Rehnquist’s concurring opinion in Bush v. Gore into a consensus majority standard
Jess Bravin in the Wall Street Journal.
Adam Liptak in the New York Times.
Nina Totenberg at NPR.
Robert Barnes in the Washington Post. (Which includes this graf: “‘Fringe’ is a word ubiquitous in the filings. But four of the nine Supreme Court justices have already expressed interest in — if not outright support for — the state-legislature theory. Which raises the question: How much of an outlier can it be?”
Greg Stohr at Bloomberg.
(Some of these pieces, here and elsewhere, point to the possibility that the governor may not be able to veto legislation under a robust reading of the Legislature Thereof Clause, but I’m not sure any serious proponent has called for Smiley v. Holm to be overturned or suggesting it was wrongly decided. As Rick Pildes blogged here earlier, “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.”)
C-SPAN will stream the argument audio live today.
Ahead of oral argument in Moore v. Harper December 7, commentary and roundup is coming in from everywhere. A few pieces:
In the New York Times, Michael Wines has a piece, “Supreme Court to Hear Arguments on Far-Reaching Elections Case.”
At Reuters, Andrew Chung writes, “Supreme Court considers limiting judicial scrutiny in U.S. elections.”
Joan Biskupic at CNN has an article, “How Bush v. Gore led to the new monumental challenge to presidential election rules.”
Over at Politico, “How the ‘independent legislature’ case before SCOTUS could upend elections.”
At Roll Call, “Supreme Court to weigh state power over federal elections.”
Steve Calabresi (who filed a brief in support of respondents with Akhil Amar and Vik Amar) has this op-ed in the Wall Street Journal, “Can the Supreme Court Define a State’s ‘Legislature’?”
Over at Heritage, David Rivkin and Andrew Grossman (who filed a brief in support of petitioners for the “Lawyers Democracy Fund and State Legislators”), joined by Richard Raile, have an extensive examination of the instances when states courts have reviewed that the state legislatures have done in federal elections.