When NC filed its opening brief in the independent state legislature case, Moore v. Harper, I commented on this blog that NC’s brief wavered between taking (1) the extreme position that state courts cannot impose any substantive limits on state federal election statutes and (2) it is only so-called “vague” or “general” provisions that they cannot enforce.

Yesterday, NC filed its reply brief and that brief firmly rests its case on (1) the more extreme position. Here’s an example:  “But the question is not whether judicial review is available, but rather what substantive rule of decision applies: that found in the federal Constitution and laws alone or also that found in the state’s constitution. The text of the Elections Clause provides the answer: it assigns state legislatures the federal function of regulating congressional elections.” That is, no matter how specific a state constitutional provision is, it cannot be enforced against state statutes regulating federal elections.”  In other words, only federal law can provide the rule of decisions regarding the legality of state statutes regulating federal elections.

Why did NC ultimately decide to abandon (2), the more narrow position? Perhaps because NC realized what a maze of issues position (2) would generate.

For example, if state courts can only enforce “specific” provisions, how specific is specific enough? Many constitutional provisions, state and federal, are written in broad terms. Does it matter if a state court has given such a provision — say a right to vote provision — more specific content through development of precedents?  If so, does that mean the same provision could be enforced in a state where precedent has been developed on that provision but not in a state where the state courts have not yet developed precedent on the provision?

The position that state courts can apply specific but not general provisions seems to reflect an intuition that the former involves interpretation but the latter is more like lawmaking.  In essence, this involves trying to draw a line between when courts are interpreting a constitution rather than “legislating.” But that is one of the oldest and most long-enduring debates in constitutional theory and in argument over court decisions.

Thus, to endorse position (2) would be to constitutionalize the debate over when courts are interpreting a constitutional provision versus legislating when they apply a provision.  Perhaps that’s why NC abandoned this position and chose the all-or-nothing approach: state court cannot enforce any state constitutional provision against state laws regarding federal elections.

In my testimony to the House on the independent state legislature doctrine, here, I highlighted some of these problems with position (2) – the position that state courts can enforce specific but not general constitutional provisions re federal elections.