Both before and during the argument in Moore v. Harper, I wrote about the possibility that the Court might think about extending the approach in the CJ Rehnquist’s Bush v. Gore concurrence – which was about state court statutory interpretation – to the domain of state court constitutional interpretation.  I’ve also suggested that this approach is more difficult in the constitutional domain, given the much higher level of generality at which most constitutional provisions are drafted.

To explain those difficulties further, it might be useful to ask how the Supreme Court’s own major precedents concerning the law of democracy would fare under this approach – that is, if state courts had rendered similar decisions under similar state constitutional provisions, before the Supreme Court had issued these rulings, would any or all of those decisions violate what I’ll call the Moore v. Harper test?  As one version of that “test” discussed at argument, I’ll use the precise version Don Verrilli articulated:  “And we think the standard is that you’d ask whether the state decision is such a sharp departure from the state’s ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law.”

The reason I raise this issue is most major Supreme Court precedents in this area represented fairly avulsive changes in constitutional law.  I’ll highlight some of the more important ones, in chronological order.  I won’t try to resolve the issue of how these decisions would fare under the “fair and substantial basis in law” standard, and the debate about that might vary from decision to decision.  But these cases present the types of questions federal courts would have to answer about state constitutional interpretations under the Verrilli test (or any version of such a test):

• Reynolds v. Sims (1964):  establishing under the EP clause the one-person, one-vote rule, despite Court precedent and long historical practice. 
• Harper v. Va. State Bd. of Elections (1966) and Kramer v. Union Free School District No. 15 (1969):  recognizing for the first time that the right to vote is an unenumerated fundamental right under the EP clause and applying strict scrutiny to voting laws.
• White v. Regester (1973):  holding that the form of an election structure (at-large elections or multi-member districts) could constitute unconstitutional racial vote dilution.
• Davis v. Bandemer (1986):  recognizing a cause of action under the EP clause for partisan gerrymandering challenges. 
• Bush v. Gore (2000):  holding for the first time that the EP clause applies to the way individual ballots are treated in a statewide election.

This is not to say that any decision which breaks new ground might raise issues under the “fair and substantial basis in law” standard.  For example, although Buckley v. Valeo (1976) constituted the first time the Court struck down limits on campaign spending as a violation of the First Amendment, a substantial body of FA law existed by then on which the issues in Buckley could be debated.  Whether one thinks Buckley was rightly or wrongly decided, I don’t think there’s any likelihood the decision would fail this “fair and substantial basis” test. 

But the law of democracy decisions I’ve noted raise more challenging questions under that test because they constituted much more sharp breaks, under the broad generalities of the EP clause, from prior doctrine (and from long-standing historical practice and the original public understandings of the clause).  None of this is to say anything about the correctness of any of these decisions; the question is how they would fare in the search for decisions that go so far beyond a “fair and substantial basis test” that they would violate the federal constitution if decided by a state court initially under a state constitutional provision with similar history and precedent (these issues are related to a talk I gave on “Originalism and the Law of Democracy,” on a panel at which then-Seventh Circuit Judge Amy Coney Barrett also spoke, at which I argued that originalists had not yet addressed how much of the law of democracy was inconsistent with originalist principles).

To bring this to bear on the NC decision at issue in Moore, compare that to the dissenting opinion for four Justices in Common Cause v. Rucho, based on the EP clause, which would have struck down certain partisan gerrymanders for the first time in the Court’s history.  It’s hard to imagine that an opinion four Justices on the Supreme Court issued would – if a majority opinion of a state court under analogues to the EP clause – fail this “fair and substantial basis” test.  If the answer is that’s because Davis v. Bandemer had already been decided, that just pushes the question back one step:  would Davis v. Bandemer violate this test?

These are the kinds of questions the Court inevitably is going to have to grapple with if it concludes that the Elections Clause is violated when state constitutional-law decisions lack a “fair and substantial basis” in law.