The following is a symposium contribution from Ned Foley (Ohio State):

Here’s the hypo that’s bothering me: a state’s constitution vests the power to determine the “manner” of appointing the state’s presidential electors in the office of the state’s governor, or the state’s supreme court, and not in the state’s legislature.

If a state constitution did that, it seems to me that it would squarely contravene Article II of the federal Constitution, which explicitly vests the power of determining the “manner” of appointing a state’s presidential electors in the state’s “Legislature” and not in the state’s governor or supreme court, or whatever other institution of state government the state’s constitution might choose.

If you accept this point, then it also seems to me that you’ve accepted the basic proposition that is animating the position of the conservative justices on the U.S. Supreme Court, as they contemplate the possibility that the Article II authority of state legislatures to determine the “manner” of appointing the state’s presidential electors may have been contravened by other institutions of state government.

 In a much-noted footnote in the Wisconsin case last week, Justice Kavanaugh observed that “under the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal [including presidential] elections.”  To support this observation, Justice Kavanaugh cited the explicit text of Article II and Chief Justice Rehnquist’s concurrence in Bush v. Gore that invoked this express language in Article II as the basis for condemning the Florida Supreme Court’s decision in that infamous case.

 Justice Kavanaugh’s footnote caused something of a panic among various scholars and others. But rather than rail against the possibility of the Court going down this road at all, it seems more constructive to me to deliberate about what might be a plausible stopping point. Justice Kavanaugh did not go so far as to say that every conceivable deviation from a state’s election law, as enacted by the state’s legislature, necessarily violates the federal Constitution.

 Nor did Chief Justice Roberts take that kind of absolutist position on this topic when he considered it in the context of the Arizona Independent Redistricting Commission case. There the Chief Justice objected to a state constitutional provision that “totally displaces” the state’s legislature from congressional redistricting.  (Article I of the federal Constitution empowers a state’s legislature to enact laws to determine the “manner” of congressional elections, comparable to the Article II power of state legislature regarding the appointment of presidential electors.) Roberts pointedly noted that other ways in which a state’s constitution might constrain a state legislature in its regulation of congressional (or presidential) elections might not present the same problem under the federal Constitution.

Thus, it seems sensible to acknowledge—as Chief Justice Roberts did, and presumably Justice Kavanaugh would—that there is a line-drawing challenge here. A state constitutional provision that “totally displaces” the authority of a state’s legislature to determine the “manner” of appointing the state’s presidential electors would violate Article II, as my opening hypothetical would.  On the other hand, it seems easy to envision hypotheticals that should pose no Article II problem. For example, suppose a state constitution provides that for any election in the state there must be a secret ballot. But suppose that a state statute attempts to provide for the appointment of presidential election by means of a popular vote, yet without the protection of a secret ballot.  In that situation, the state constitution would not “cut out” the legislature altogether, to invoke some more of the Chief Justice’s opinion in the Arizona case. Presumably, a state court’s enforcement of the secret-ballot requirement in the context of a popular vote for the appointment of presidential electors would be constitutionally permissible under Article II, at least as Chief Justice Roberts (and perhaps also Justice Kavanaugh) see it.

I don’t profess to know now exactly where to draw the line, or how it would apply to cases that might arise in the future. But I think it is necessary to acknowledge that some cases would be difficult, as long as one takes the text of Article II seriously. The Pennsylvania case, the merits of which the U.S. Supreme Court has managed to avoid so far, is one such case in my view.  The problem there, as I see it, is that it is not like my secret-ballot hypo, where the state constitution itself is specific and clear.  Instead, the Pennsylvania Supreme Court used a general and vague constitutional clause to override an unambiguous state statute.  That, in my mind, is uncomfortably close to a state constitutional clause giving the power to determine the manner of appointing the state electors, not to the state’s legislature, but to the state’s judiciary instead.

I can’t say I’m happy with this conclusion as a policy matter. But is it an incorrect interpretation of the federal Constitution?