Moore v. Harper vindicates Rehnquist’s opinion in Bush v. Gore

The top line takeaway of Moore v. Harper is this: the Supreme Court has slammed the door shut on the argument that the state constitution or state judiciary cannot constrain the state legislature exercising power under the Elections Clause.

But Part V of the opinion, as Rick H. and Rick P. have already blogged, expressly leaves open the question of when state courts go “too far.” Part V opens, “Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein.” And later, “We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

In doing so, the Court looked to Bush v. Gore (2000):

Chief Justice Rehnquist, joined in a concurring opinion by JUSTICE THOMAS and Justice Scalia, acknowledged the usual deference we afford state court interpretations of state law, but noted “areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law.” Id., at 114. He declined to give effect to interpretations of Florida election laws by the Florida Supreme Court that “impermissibly distorted them beyond what a fair reading required.” Id., at 115. Justice Souter, for his part, considered whether a state court interpretation “transcends the limits of reasonable statutory interpretation to the point of supplanting the statute enacted by the ‘legislature’ within the meaning of Article II.” Id., at 133 (Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting).

In other words, the Court–and no justice dissented from this view–seems entirely amenable to the concept promulgated by the Chief Justice, that at some point state courts go “too far” in interpreting state law.

I pointed out back in March 2022 here in a post-Rucho analysis ahead of Moore that this “weak” version of an interpretation of the Legislature Thereof Clauses had some broad support, even among skeptics. After oral argument, I blogged about how there was strong consensus on the Court about some “middle way”–a narrow standard that would apply to some outlier cases. The Court here did, indeed, find such a boundary–but it failed to coalesce around what that boundary looks like: “We do not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause. The questions presented in this area are complex and context specific.”

Justice Kavanaugh writes separately to point out that “deference is not abdication.” The varying approaches, whether Rehnquist’s opinion in Bush v. Gore or the Solicitor General’s articulation of the standard in Moore, for determining when a state court goes too far are likely not that different, and that… well, the Court may decide it another day.

In other words, the theory behind Rehnquist’s opinion has broad support–a state court can go “too far.” But the articulation of that theory–and, of course, the application of that theory in a given case–remain disputed.

Part III of Thomas’s dissent (here, joined by Justice Gorsuch) expresses significant concerns with this approach. True, Part II of his opinion suggests that a state court cannot control “what substantive laws can be made for federal elections”–surely a limitation of when a state court goes “too far.” But the narrower approach by the majority, he understandably worries, “opens a new field for Bush-style controversies over state election law.” Part III is ripe with open questions for future litigation (or law review article exploration!).

I am probably less worried than other bloggers here or than Justice Thomas about how this plays out on the ground. I have no doubt that there will be a new tranche of “Bush-style” election litigation. But the procedural posture is less likely, as he puts it, “to demand that federal courts develop some generalized concept of ‘the bounds of ordinary judicial review.'”

First, if the fundamental problem is state courts construing state law beyond what the Legislature Thereof Clauses permit, the solution is likely not a collateral attack in the district courts but a petition for certiorari to the Supreme Court, which will, I assume, dismiss the overwhelming majority without explanation.

Second, if collateral attacks do arise, they will likely arise in a different posture (e.g., state executives going “too far”–a question not addressed in this case, but the kind at issue in 2020 in the Eighth Circuit’s decision in Carson v. Minnesota) or will face significantly jurisdictional hurdles (e.g., Rooker-Feldman).

Third, state courts are on notice. True, it’s possible some are emboldened in the judicial terms ahead (I worry, for instance, specifically about hotly-contentious state courts in closely-contested election states that are facing changing personnel dynamics, like Wisconsin). Alternatively, they will likely explain how their decisions naturally follow from previous precedent and remain with the heartland of ordinary judicial review. I think Rick P.’s post last year helpfully identifies some of the challenges of this approach, depending on the level of generality one uses in describing past precedent. But my instinct is that if state courts recognize that some explanation of their trajectory is necessary, it will lessen the likelihood of running afoul of any Part V standard from Moore.

There is no question the opinion leaves open litigation routes for challengers and uncertainty for elections in the years ahead–as Thomas points out, “some of the most politically acrimonious and fast-moving cases that come before them.” And we’ll see how it plays out in the months ahead.

Share this: