North Carolina has now filed its opening brief. I want to single out one aspect of that brief here.
As I’ve emphasized, there are at least two different versions of ISLT on the role of state constitutions. The more sweeping one is that state constitutions cannot impose any substantive constraints on state laws regulating national elections (I’ll just call these state laws, to condense). The other is that specific constitutional constraints can apply, but state courts cannot rely on broad, general provisions – such as those that guarantee “free and fair elections” – to invalidate these state laws. Under the first theory, a state constitutional provision that specifically bans partisan gerrymandering would be enforceable. But state courts could not rely on general provisions to get to the same result.
The North Carolina case presents a version of the second situation. The NC Constitution does not contain any express ban on partisan gerrymandering. Instead, the state court relied on general state constitutional provisions, such as those providing that elections must be “free” and protections for the rights of free speech, assembly, the press, and the state’s equal protection clause. Before the Supreme Court, the state could have taken the narrowest position necessary to get to the result it seeks; it could have argued that this case does not present the question of how specific provisions in state constitutions apply to these state laws. NC could have argued that, in this case, the question is whether state courts can rely on general provisions to invalidate these state laws.
But instead, NC is arguing for the much more sweeping position. Or rather, it trades off between these two positions. Its Question Presented, for example, frames the issue as one involving allegedly “vague constitutional provisions.” Parts of the brief continue to hammer away at the “vagueness” of the relevant provisions. But other parts of the brief essentially argue that state constitutions cannot impose any substantive constraints on these state laws, regardless of how specific those provisions might be. Here is one of many such passages in the brief: “When a state legislature’s election regulations are nullified by a state court on state-constitutional grounds, the practical result is that the State has reallocated a portion of the authority assigned specifically to its legislature by the federal Constitution and parceled it out instead to its courts.” The central position of the NC brief is that no substantive state constitutional provisions can constrain these state laws.
How many Justices on the Court have indicated they start out likely to support the principle that at least some limits exist on the substantive constraints state constitutions can impose on state laws regulating national elections? I count three: Justices Thomas, Alito, and Gorsuch.
Justice Barrett has not yet expressed any view on any version of the ISLT at all.
Chief Justice Roberts has taken the view that a state constitution cannot transfer the authority to design congressional districts completely out of the hands of the state legislature. But he has not expressed a view about specific substantive state constitutional constraints on state legislation regulating national elections.
Justice Kavanaugh’s stated positions require a bit more unpacking. In his own words, in the one statement he has issued on the ISLT, he has indicated some support only for the position that the Constitution constrains state judicial interpretation of state laws regulating national elections. He has not himself addressed the role of state constitutional provisions.
On the other hand, he did join a statement of Justice Gorsuch’s in the DNV v. Wisconsin State Legislature case (on the eve of the 2020 election) concurring in the denial of a stay application. I’m not sure what to make of that statement, because Justice Gorsuch asserts there that even federal courts cannot apply the federal constitution to invalidate these state laws. I doubt anyone on the Court believes that, and I’m not even sure Justice Gorsuch does – this statement was issued in incredibly rushed circumstances in the final days of the 2020 election. That position would mostly be unnecessary, in any event, because if upper-level courts disagree with the way a federal court has applied the Constitution, they can always reverse that judgment on the merits. In any event, this Justice Gorsuch statement is puzzling enough I am not inclined to read much into Justice Kavanaugh signing it.
Thus, I read three Justices as having indicated initial support for the position that at least some state constitutional provisions can’t be enforced against state laws regulating national elections. This isn’t to predict how many votes there will be on the merits for the broad position that state constitutions cannot constrain these state laws. It’s just an accounting of what various Justices have said in opinions or statements in cases thus far.