What Difference Would It Make If the Supreme Court in the Moore v. Harper Case Embraced the Bush v. Gore Concurrence Rather Than a Full-Throated Independent State Legislature Theory?

In my earlier recap of today’s oral argument in Moore v. Harper (transcript here), I suggested that the middle ground position that the three Justices in the middle might embrace would be bad but not awful compared to the position embraced by Alito, Gorsuch and Thomas. I want to unpack that here, in the context of all the talk at oral argument about sky high deference to state court rulings etc. And this involves understanding the position of the concurrence in Bush v. Gore and the position of the court in the earlier Bush v. Palm Beach County Canvassing Board case.

Under the vision of ISLT embraced by the Legislators’ today through David Thompson’s argument, a state court has no role to play in applying the state constitution to limit a state legislature’s actions in federal elections. Even assuming the state was applying the state constitution exactly correctly—as Thompson conceded the Court did for purposes of making his argument—the state violates ISLT. There is no role for the state constitution. So imagine a state rules (as PA’s Supreme Court did) that the state constitution’s provision protecting free and fair elections required extending the deadline set by the Legislature by 3 days for the receipt of absentee ballots during a pandemic. Under this version of ISLT, this rule cannot apply to the federal candidates on the ballot. So late arriving ballots would count for state elections but not federal elections. (It would also seem to call into question all of the rulings of state election administrators interpreting state statutes, as I argue in my amicus brief, though Thompson tried to distinguish such cases as oral argument: “First of all, our theory does not relate to the interpretation of statutes.”)

In contrast is the approach that seemed to be floated by Justice Kavanaugh, and to a lesser extent the Chief Justice and Justice Barrett: that of the Bush v. Gore concurrence. Recall in Bush v. Gore the majority held that the recount ordered by the Florida Supreme Court violated the equal protection clause because it treated some voters as worse than others. The Rehnquist concurrence, joined by Justices Scalia and Thomas) held that when a state court engages in grossly unfair interpretation of a state election statute, that could usurp the power of the state legislature. (In Bush v. Gore, it was the legislature’s power under the parallel Article II authority for presidential elections, not the Article I, section 4 authority for congressional elections.) This was kind of the theory that Neal Katyal for the Common Cause respondents was arguing as a backup. There are going to be some really crazy interpretations of state law that would be unconstitutional. (There was some discussion if there’s a different standard in statutory cases like Bush v. Gore or constitutional standards under Bush v. Palm Beach County Canvassing Board. I don’t think that there’s any real holding in Palm Beach County because that case was a remand for more information, and no holding that a crazy interpretation of the state constitution necessarily usurps the legislature’s power unconstitutionally.)

Under this alternative theory, state court retains a role in applying a state constitution to limit what a state legislature does in regulating federal elections. But when it engages in a really crazy interpretation of a state constitution, then the Supreme Court can step in. To return to the example of the extension of 3 days for the return of absentee ballots during the election, the question would be whether such an interpretation of the state constitution—given the text of the statutory provision and given the history of application of the statute—is so novel and crazy as to become unconstitutional.

This version of ISLT would still be bad: we would have the Supreme Court second-guessing state supreme court rulings in highly charged election cases sometimes during contentious presidential elections. That’s why it’s bad. But it is not as awful as cutting courts out completely of the business of protecting voters’ constitutional rights under state constitutions in federal elections. That theory would lead to chaos in the courts, as my amicus brief shows.

Now I do think that there is a better limiting principle here, which is kind of parallel to the crazy interpretation argument: it’s a due process problem. Guy says that what you call it doesn’t matter much where this theory is found by I disagree for two reasons. First the due process clause prevents arbitrary and capricious government action. That’s the appropriate standard to use to decide if the state court has gone way too far. That kind of power would not be bad if the Supreme Court applied it rarely and judiciously. (It’s an interesting question whether it should have applied in Bush v. Gore. My view now is that this was a close call, and that the mainproblem in Bush v. Gore was the failure to remand for a revised recount under a non-arbitrary standard). The due process standard us extremely deferential. Further, the theory would apply to both federal and state elections. So one would not have a ruling that would apply only to federal races on the ballot but not state races.

One final point: if the Court adopts the Bush v. Gore concurrence-version of ISLT in this case, it’s not clear who wins the case given Thompson’s concession. Thompson did not argue that the NC Supreme Court ruling was crazy. Remember, he says any ruling on constitutional grounds is impermissible. So a 6-Justice majority siding with Common Cause? Or a 3-3-3 split where the 3 Justices in the middle decide whether or not the ruling of the NC Supreme Court was crazy? Or asking for more briefing? (One problem with that last course is that the case could become moot. The new Republican majority on the NC Supreme Court is sure to disavow the partisan gerrymandering theory at some point down the line.)

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