Here are some things that struck me listening to the argument today.
1) What will the RKB triumvirate do? As Rick Hasen noted in his post, the question is which way will Roberts, Kavanaugh, and Barrett go. My guess is that Roberts goes with the conservatives and Kavanaugh and Barrett join Kagan for a middle ground. Though Roberts did not express strong support for the ISL position, compared to Gorsuch or Alito, he seemed to be very open to imposing meaningful limits on state courts. His opening exchange with Verrilli I think is indicative.
He seems to share Gorsuch’s distrust of state courts as against state legislatures (what if courts adopt the efficiency gap, or they delegate broad authority to special masters). And he attempted to walk back or reinterpret his statements in Rucho. Moreover, he seems to believe that there is a question of federal power at stake here. So, I expect him to go with the conservatives and then the question is how high of a standard will they impose on state courts.
By contrast, to the extent oral argument questions are indicative of anything, Kavanaugh and Barrett seemed willing to give state courts a fair amount of deference in interpreting state statutes or constitutions. Though they are willing to buy some version of ISL–that is, they believe that the Elections Clause imposes some judicially-manageable limits on state courts–they did not indicate a belief that the standard ought to be stringent. They seem to want the standard to be clear.
It’s foolish to guess what these two will do, but their questions seemed more consistent with the position of the respondents than petitioners. Barrett seemed skeptical that the standards articulated by petitioners were workable (e.g., substance v. procedure distinction, novelty, egregious departure) and David Thompson, the advocate for petitioners, did not have good answers here. Kavanaugh’s questions for Thompson were also particularly trenchant and I don’t think Thompson’s answers were persuasive.
2) Constitutional basis for the federal standard: Due Process v. Elections Clause. Rick Hasen argues that the Court can use the Due Process Clause to find the federal standard. I don’t think clause-switching makes a difference here. Whether the standard comes from the Elections Clause, Due Process Clause or some other part of the Constitution, the Court will have to articulate it and defend it. Moreover, I have a hard time seeing a majority splitting the violation and the standard. That is, if the Court thinks that the NC Supreme Court’s reasoning violate the Elections Clause, I’d be surprised if they then looked to Due Process to articulate the standard.
3) State Statute v. State Constitution. One theme of the argument was whether state constitutions and state statutes ought to be treated differently. Rick Pildes has written a thoughtful post on this. It was one point of agreement between Thompson and Neal Katyal (arguing for respondents). Again hard to tell from oral argument, but It’s not clear to me that any Justice other than Jackson was willing to buy that distinction and Kagan seemed to be very skeptical. Verrilli and Prelogar argued that the distinction not was theoretically significant but might play out differently in application. I think Rick Pildes is obviously correct on the distinction between general principles and specific guidance. But it’s not clear to me that one has to take the categorical approach that Katyal took. I think that argument was a distraction for the respondents.
4) Are both sides articulating the same standard? The Chief asked a question of Katyal that I don’t think received a lot of attention. He asked whether Katyal and Thompson were both articulating the same standard. He quoted from Katyal’s brief saying that the standard can be a significant departure from state law (statute/constitution) and compared that to Thompson’s argument that the standard can be egregious departure from state law. There’s an argument to be made that petitioner’s standard (novelty or egregious departure) is in fact sky high and not that different from what respondents would want. And that even under petitioners’ standard, respondents should win.
5) The Solicitor General, Elizabeth Prelogar continues to be amazing in oral arguments.