What, exactly, would a judicially-manageable standard under the Elections Clause look like after Moore v. Harper?

Rick Pildes here at ELB has already commented on the petitioners’ brief in Moore v. Harper, the Legislature Thereof Clause, as a brief that “trades off between” a “strong” interpretation and a “weak” interpretation of the Clause–strong, in that the state constitution cannot ever substantively constrain the state legislature, and weak, in that the state constitution cannot have “vague” provisions interpreted by state courts to constrain the state legislature.

I want to delve into this more. By my count, the petitioners in Moore offer five different conceptualizations of conceiving of the boundaries of the Elections Clause, and amici offer three different approaches. On the one hand, a suite of options may make it possible for the Court to find consensus around such a construction. On the other hand, it is, in my judgment, a deficiency, an inability to coalesce around a manageable standard for the Court.

In the petitioners’ brief, I see several different ways of putting the scope of the Legislature Thereof Clause, summarized by me with some selections from the brief:

1. State legislatures are not bound by state constitutional provisions: “when state legislatures regulate the times, places, and manner of Senate and congressional elections, they are exercising a power governed by the federal Constitution, not a state constitution, so only federal constitutional limits apply”

2. State legislatures are not bound by state constitutional provisions on “inherently legislative” decisions: “If the Elections Clause means anything, it must mean at least this: inherently legislative decisions about the manner of federal elections in a State are committed to ‘the Legislature thereof.'”

3. State legislatures are not bound by state constitutional provisions that places “substantive” restraints on legislatures: “this Court’s precedent is also consistent with the conclusion that States may not impose substantive state-constitutional limits on their legislatures’ exercise of this authority” “But it does not follow that state constitutions may also impose substantive limits, enforceable by state courts outside of ‘the method which the state has prescribed for legislative enactment[ ],’ Smiley, 285 U.S. at 367, on the legislature’s exercise of the power assigned to it by the Elections Clause.”

4. State legislatures cannot excessively delegate responsibility to the state courts: “And even if some amount of delegation was constitutionally allowed, the power exercised by the North Carolina courts here—the unmoored policy determination of deciding how much partisanship is permissible in redistricting—far exceeds the degree of acceptable delegation on any understanding.” “It is one thing for a State to effectively delegate to the state courts the authority to enforce specific and judicially manageable standards, such as contiguousness and compactness requirements. It is quite another for the court to seize the authority to find, hidden within the folds of an open-ended guarantee of ‘free’ or ‘fair’ elections, rules governing the degree of ‘permissible partisanship’ in redistricting—a matter that this Court has held to be ‘an unmoored determination’ that depends on ‘basic questions that are political, not legal.’ Rucho.”

5. State courts cannot “nullify” state legislative actions: “The North Carolina Supreme Court’s actions below nullified the North Carolina General Assembly’s regulations of the manner of holding federal elections in the State and replaced them with new regulations of the judiciary’s design. Those actions are fundamentally irreconcilable with the Elections Clause.” “The Elections Clause does not permit the North Carolina courts to nullify the General Assembly’s chosen ‘Regulations’ of the ‘Manner of holding Elections,’ U.S. CONST. art. I, § 4, cl. 1. And even if it did, the state courts below plainly had no authority to go on to replace the legislature’s congressional map with a new map of their own, discretionary design.”

Part of the challenge here, of course, lies in how one conceives of the issues, which are much more complicated than a simple on-off strong-weak, depending on how one conceives of the relationship between the state legislature, the state courts, and the federal constitution. But it is worth emphasizing that each construction in the brief offers different ways of conceiving of the problem.

But there are many amici who filed, some in support of petitioners, others in support of neither party. I’ll highlight a few of the standards that caught my eye. These selections roughly go in order from “broadest” to “narrowest” conception of judicial review.

First, mostly broadly, a construction that no state court or state constitution can “override” a decision of the legislature.

From Restoring Integrity and Trust in Elections :

Thus, the Elections Clause means what it says: the power to prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives” rests exclusively in “the Legislature” of “each State,” subject to congressional action and the federal Constitution. U.S. Const. art. I, § 4, cl. 1. Neither a state court nor a state constitutional provision can override a state legislature’s regulations governing federal elections.

And the Honest Elections Project:

State courts and executives can still interpret the legislature’s regulations of federal elections. Interpretation is not usurpation; it is a traditional exercise of judicial and executive power. “Under this approach, since a legislature adopts only the text of a statute, the Constitution requires election officials and courts to apply that text, even if they ordinarily would take into account extrinsic considerations like the state constitution.” . . . In other words, nonlegislative actors can offer good-faith interpretations of ambiguous laws. But they cannot invoke state constitutions as a basis to strike down or willfully ignore clear laws.

Second, and narrower, “clear statement rule,” with some conditions, as a predicate to limiting legislative power.

From a group of New York voters:

Amici propose . . . a clear-statement rule. Under Amici’s proposal, a State may use its “own lawmaking processes,” Ariz. State Leg., to channel federal-election responsibility away from the state legislature and to some other state body, and may choose to prohibit partisan gerrymandering, so long as the State expresses these intentions in unambiguous statutory or constitutional text. This proposed clear-statement rule gives teeth to the Elections Clause, while still allowing States to take meaningful steps to stop partisan gerrymandering through their “own lawmaking processes.” Ariz. State Leg.. And Amici’s clear-statement rule is eminently administrable because it is grounded in this Court’s well-established, clear-statement-rule precedent.

And a group of states led by Arkansas and Arizona:

To ensure that redistricting power stays with legislatures, this Court should hold that courts may override legislative decisions only if there is a federal or state statute or constitutional provision that speaks clearly to the matter.[n. 5] Accord Rucho. In other contexts, courts look for clear expressions of legislative intent to accomplish a particular result. See, e.g., Nat’l Fed’n of Indep. Bus. v. OSHA. For instance, this Court requires “clear congressional authorization” before upholding major regulations. West Virginia v. EPA. This ensures that unelected bureaucrats do not usurp Congress’s role.

n.5: Amici States understand that Petitioners more broadly argue against applying substantive state constitutional provisions to constrain the legislature in this context. Amici States take no position on that issue, and the Court need not rule on it to decide this case in Petitioners’ favor.

One more, from the National Republican Redistricting Trust:

Assuming that Congress has not exercised its own Elections Clause power to impose substantive redistricting criteria upon the States (and it has not other than a requirement for single member districts and the Voting Rights Act), there are two—and only two—instances in which a state supreme court may intrude upon the state legislature’s redistricting function consistent with the Elections Clause. The first involves instances when the legislature itself (or the people of the State acting through a referendum procedure contained within their state constitution) have expressly authorized such an intrusion. These “express authorizations” are the kinds of state constitutional provisions favorably cited in the Court’s majority opinion in Rucho, or the New York constitutional provision that expressly prohibits districts “drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or parties.”

Such express authorizations as exist in New York and as the Rucho Court identified in Missouri, Iowa, and Delaware law codify clear anti-partisan gerrymandering standards that state courts are empowered to enforce. . . .

Second, state courts may intervene in a redistricting process when the state’s political branches that are entrusted with constitutional authority over redistricting have arrived at a “true deadlock.” Situations of true deadlock are, by definition, rare, and in any event would present an instance of the state court enforcing provisions of the federal constitution rather than redistricting-related provisions of state law.

Third, and most narrowly, an inquiry into whether there exists no “plausible” basis for the state court’s decision and it infringes a federal interest.

From the Conference of Chief Justices (which at the front end argues that there should not be any such limitation on state courts, but then offers a narrow construction at the back end of the brief):

If this Court nonetheless concludes that the Elections Clause does permit federal courts to impose some limit on state courts’ interpretations and applications of state constitutional law to state laws establishing the time, place or manner of congressional elections, the standard of review must be exceedingly deferential. . . .

If a state court has used the interpretive and decision making tools traditionally used by judicial officers to reach judgments under state election laws, it cannot be said that the court has trenched on the state legislature’s prerogatives under the Elections Clause. And where a state court has used such traditional tools, a federal court should let state court decisions reviewing state election laws stand unless there exists no plausibly defensible basis for the court’s determination and the decision infringes a clear federal interest.

This proposed standard is consistent with those employed in the other highly unusual contexts in which federal courts review state court interpretations of state law out of concern for the obstruction of a federally protected interest, such as when necessary to determine the “adequacy” of an independent state law ground invoked by state courts to defeat a claim of federal right. See, e.g., Ind. ex rel. Anderson v. Brand, 303 U.S. 95, 100 (1938) (when addressing Contract Clause claims and reviewing state court decisions as to whether a contract was made under state law, “we accord respectful consideration and great weight to the views of the state’s highest court”); Walker v. Martin, 562 U.S. 307, 320 (2011) (state procedural rules ostensibly barring federal court review of federal claims “may be found inadequate when discretion has been exercised to impose novel and unforeseeable requirements without fair or substantial support in prior state law” or when state rules have been “applied infrequently, unexpectedly, or freakishly”) (cleaned up). Here, the federal interest under the Elections Clause involves protection of state laws enacted by a state legislature governing federal elections, and thus should respect a State’s decision to structure its laws to include judicial review. [n.11]

n.11: The proposed standard is more deferential than that proposed in the concurrence in Bush v. Gore, 531 U.S. 98 (2000) (per curiam), that is, whether the state court interpreted state law in a manner “beyond what a fair reading” allows, id. at 115 (Rehnquist, C.J., concurring).

Again, there are a suite of options at the Court’s disposal. It remains unclear that any single manageable judicial standard will secure five votes. But it’s illuminating to see how the conception of the scope of the Legislature Thereof Clause is playing out in the briefing.

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