Moore v. Harper & the need for clarity

In his valuable New York Times column this morning, Rick Pildes rightly emphasizes the need for clarity in rules governing the electoral process, especially the rules concerning the casting and counting of ballots. Rick worries, however, that yesterday’s decision in Moore v. Harper, by leaving unsettled the standard by which federal courts supervise state courts from going too far in their interpretation of state constitutions (and state statutes), may have engendered a significant and destabilizing degree of unwelcome unclarity on a crucial point of election law just as the nation is heading into a potentially fraught 2024 election.

I agree with Rick that this is a concern, but I also think one can look at Moore v. Harper and its relationship to the need for clear election rules in a somewhat different way.

Throughout the litigation of Moore v. Harper itself, I have thought that the fact pattern most important for understanding the Court’s eventual decision in case was not the redistricting-related facts in North Carolina, which of course was the actual setting of the case, but instead the facts from Pennsylvania back in 2020, when the state Supreme Court there extended the deadline for returning absentee ballots despite the clarity of the state’s statutory deadline. That judicial alteration of an unambiguous state legislative rule, based on nothing more than a vague provision of a state constitution, provoked significant consternation among several members of the U.S. Supreme Court (as revealed by separate opinions from multiple justices) and led to Justice Alito’s order concerning a sequestration of relevant ballots. It’s a good thing those ballots didn’t matter to the outcome of the presidential election in Pennsylvania; if they had, it seems clear to me that that case would have become Bush v. Gore 2.0, with a majority of SCOTUS reversing the Pennsylvania Supreme Court on Article II grounds for having usurped the state legislature’s constitutionally designated role to set the rules for the appointment of the state’s presidential electors. Even after the Pennsylvania litigation became moot, some of the SCOTUS justices wanted to hear it, just to send the message loud and clear about what behavior of state supreme courts is impermissible. But after the cert petition in that case was dismissed, Moore v. Harper despite its very different set of actual facts became the vehicle for sending that same message.

I think Justice Kavanaugh’s concurrence in Moore v. Harper is confirmation that this message is the one that state supreme courts should receive. True, Justice Barrett did not join Kavanaugh’s concurrence, but it’s safe to say that there are five SCOTUS votes (maybe even six) to invalidate on Article II grounds the kind of ruling that the Pennsylvania Supreme Court rendered in its decision to alter the statutory deadline for return of absentee ballots. That fact pattern should be a clear marker of what state supreme courts should not do in 2024. If those courts heed that message, that should benefit the clarity of the rules for casting and counting ballots in 2024 because one key component of that Pennsylvania case was the absolute unambiguity of the statutory deadline for absentee ballot return.

Yes, Rick Pildes is correct that there is inevitably some uncertainty at the margin of the SCOTUS supervision of state supreme courts that Moore v. Harper signals is part of the landscape heeding into 2024. But I agree with Derek in his observation that “state courts are on notice” and the message sent is straightforward, especially if one keeps the 2020 Pennsylvania case firmly in mind. State courts should not rewrite unambiguous state statutes governing the voting process based on essentially a policy disagreement with a reasonable policy choice made by the state legislature, and when state courts do so based on nothing more than nonspecific phrases in a state constitution they are acting legislatively and not judicially in a way that usurps the state legislature’s constitutionally dedicated function. If state courts stay clear of this warning marker, they should be able to navigate through 2024 without danger of causing an electoral shipwreck.

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