I’m going to re-up a post of mine from Dec. 3rd on this issue: how relevant should the Bush v. Gore concurrence on statutory interpretation, which CJ Rehnquist authored, be in considering the role of state courts in interpreting the state constitution? I think the significant differences in the nature of these sources of law suggests that it is a far more difficult inquiry to judge when a constitutional interpretation “is not a fair interpreation” from the text of a constitution than it is to decide when a statutory interpretation “is not a fair interpretation” of the statutory text:
The ISLT: How State Constitutions and Statutes Differ.
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.
Post-Argument Update: At argument, there was a good deal of discussion — and some disagreement among advocates arguing in support of the NC court’s decision — regarding whether the formal legal standard for when a state court has gone too far beyond a “fair reading” of the relevant legal text should vary depending on whether it’s a statute or a state constitution being interpreted. My points above about the differences between interpretation of statutes v. constitutions remain the same regardless of what the formal standard is. Perhaps these points provide reasons that the standard for a beyond the pale constitutional interpretation should be higher than for a statute. But even if the standards for statutes and constitutions are the same, the key question would be what those standards would mean in application. And as noted above, federal courts would have a much deeper anchor in state law most of the time when it comes to statutes rather than constitutions. Put another way, there is likely to be a more objective basis for federal courts to determine when the application of a statute has gone too far beyond the statutory text and scheme than for a constitutional provision. Statutory tests are far more detailed; they are applied regularly to election issues; election statutes often interact with each other; there is more likely to be a thickly developed body of state judicial interpretation of election statutes than constitutional provisions. For these and related reasons, federal courts would have much less of a firm foundation in deciding state constitutional interpretations had “gone too far” than state statutory interpretations.
Further Update : On re-reading the transcript of the argument, I noticed that Don Verrilli made this same point — that the application of whatever standard the Court might adopt ought to be different in the context of constitutional interpretation, given the distinct nature of constitutions compared to statutes:
Verrilli: “And so I — I could see in application the standard might work out differently in some cases but I don’t think it’s a difference in the standard as much as the application of the standard.”