With the argument coming up next week in Moore v. Harper, I’ve thought more deeply about some of the less obvious legal issues underlying the case.  I plan to do a few posts on these issues.

At least several Justices on the Court are surely inclined to endorse the version of the ISLT that was expressed in Bush v. Gore’s three-Justice concurrence, which then-Chief Justice Rehnquist wrote.  This version is about federal constitutional constraints on state actors – such as judges or election administration officials – when they interpret and apply state statutes that regulate federal election.  In this version, state actors cannot depart from what “a fair reading” of the state election code provides.  This version is not about whether state constitutions can constrain state statutes regulating federal elections and is not directly at issue in Moore.  Nonetheless, it makes sense to consider how to think about the implications of the Bush v. Gore concurrence for the issue directly involved in Moore.

The question I want to raise can be put this way:  if I’m a Justice inclined to accept the Bush v. Gore concurrence’s version of the ISLT, does that logically mean I must also believe state courts similarly cannot depart from what “a fair reading” of the state’s constitution provides in judging the constitutionality of state statutes that regulate federal elections?  But here, a dramatic difference between statutes and constitutions as sources of law must be considered.  State statutes will generally be far more specific and detailed, with provisions that interact with other provisions in the statute, than state constitutions.  In the federal context, compare the difference between Title VII, or the 1964 Civil Rights Act as a whole, with the Equal Protection clause.  Because statutory law generally tends to be much more specific, more fully fleshed out, much more detailed, and because individual provisions work together as part of what the Bush v. Gore concurrence called a “legislative scheme,” state election statutes provide much firmer traction than state constitutional provisions for judging what constitutes a “fair reading” of the source of law.  To shift the metaphor, state statutes can anchor judgments of what constitutes departing “too far” from the statutory text and scheme than can most state (or federal) constitutional provisions.

General or broad state constitutional provisions take on more determinate content through the development of precedents.  The text of these provisions is frequently so general that by itself, it does not provide a deep anchor for judgments of what constitutes a “fair reading:” that’s what judges on a state’s highest court frequently disagree about.  But it’s also the case that these provisions might not have been applied all that often to state election statutes that regulate federal elections.  Here is another difference with state statutes:  state election statutes are routinely applied to a range of elections and thus a substantial body of interpretation is much more likely to have developed over years to implement these statutory provisions.  Once again, that provides a much deeper anchor for judging when state actors have departed from a “fair reading” of the statutory framework than from a broad state constitutional provision.  A “plain meaning” rule for statutory terms, for example, is easier to envision than a “plain meaning” rule for highly general constitutional provisions.

If the Court is going to hold that state constitutional provisions cannot be applied at all to these statutes, none of this is relevant.  But for Justices who conclude state constitutional provisions can be enforced, but who wonder whether the principle from the Bush v. Gore concurrence should be extended to state judicial interpretation of state constitutional provisions – so that interpretations that depart from a “fair reading” of the state provisions violate the federal constitution – these significant differences between statutes and constitutions as sources of law need to be considered.