As soon as I read Justice Kavanaugh’s concurring opinion in Moore v. Harper, I thought of Leah Litman‘s scholarship on novelty and how Kavanaugh’s proposed rule, if it becomes law, would deter the growth of state constitutional law protecting the right to vote. I asked Leah if she wanted to flesh out this idea, and she wrote this guest post:

The Supreme Court’s decision in Moore v. Harper left much to be determined at a later date. One of the TBD issues is whether the Court will adopt an anti-novelty version of the independent state legislature idea, which could thwart democracy, the development of the law, and the promise of state courts and state constitutions.

In the final week of the term, the Supreme Court released the opinion in Moore v. Harper, in which it rejected the most extreme and maximalist version of the independent state legislature (ISL) theory/fan-fic/thing (or whatever you might call it). The most extreme version of ISL was the one that maintained that state courts could never enforce state constitutional provisions against state legislatures in cases involving state law regulating federal elections, or (relatedly) that state courts could not enforce some subset of state constitutional provisions (substantive provisions, general ones, or some other category). In Moore, 6 Justices rejected that theory and two (Justices Thomas and Gorsuch) embraced it.

But there has been a wide range of views about whether or to what extent Moore rejected other versions of ISL, including the version espoused in Chief Justice Rehnquist’s concurring opinion in Bush v. Gore. In Bush v. Gore, Chief Justice Rehnquist, writing for himself, Justice Thomas, and Justice Scalia, had maintained that the federal constitution allows federal courts to review state courts’ interpretation of state laws (in that case, statutory law) in fairly nondeferential ways such that the federal courts would essentially be deciding anew whether the state courts interpreted state law correctly.

The Chief Justice, in the majority in Moore, recounted how the different opinions in Bush (in particular, the dissents and Chief Justice Rehnquist’s concurrence) had pushed different legal rules about when federal courts could review state courts interpretation of state laws regulating federal elections. But aside from noting that “state courts do not have free rein,” and 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,” the Chief Justice’s opinion in Moore did “not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause.” Nor did it assess whether the North Carolina Supreme Court had violated whatever the legal test is when the North Carolina Supreme Court struck down the North Carolina legislature’s maps as violating the state constitution (the North Carolina Supreme Court subsequently held partisan gerrymandering claims nonjusticiable after the Court’s composition changed in the midterms).

Justice Thomas’s dissenting opinion in Moore raised some concerns about the majority’s decision to leave this issue unresolved. In the final section of his dissent (joined only by Justice Gorsuch), Justice Thomas wrote that “it is impossible to be sure what the consequences of” the majority’s “interpretation will be.” The majority’s opinion, he wrote, “opens a new field for Bush-style controversies over state election law—and a far more uncertain one,” and he expressed a “fear that this framework will have the effect of investing potentially large swaths of state constitutional law with the character of a federal question not amenable to meaningful or principled adjudication by federal courts.”

Justice Kavanaugh’s concurring opinion in Moore sought to provide some additional guidance about what he thought the standard for federal courts reviewing state election laws would ultimately be. He specifically embraced Chief Justice Rehnquist’s standard from Bush v. Gore, under which federal courts would ask whether the state court “impermissibly distorted” state law “beyond what a fair reading required.” And to apply that standard, Kavanaugh wrote, he would rely on Chief Justice Rehnquist’s guidance that in reviewing state court interpretations of state law, federal courts “necessarily must examine the law of the State as it existed prior to the action of the [state] court.”

This formulation has echoes of the anti-novelty principle that the Supreme Court has applied in constitutional law cases about the scope of Congress’s powers, and in administrative law cases about the scope of agencies authority under federal law. In those cases, the Court treats novelty as a mark against the lawfulness of a federal law or federal regulation. In constitutional law cases, if the statute is new, then the Court has said that can be a sign that the statute exceeds the scope of Congress’s powers under Article I, violates the Tenth Amendment, or impermissibly interferes with the President’s powers under Article II. And in administrative law cases, if the regulation is new, then the Court has said that that can be a sign that the regulation is ‘major,’ and accordingly requires specific, explicit authorization from Congress.

In prior scholarship, I’ve tried to debunk that anti-novelty principle as it is used in both assessing the scope of Congress’s powers and in assessing the scope of federal agencies authority. (The latter in a co-written piece.)

It’s concerning that the Court might be on the cusp of importing an anti-novelty principle into how federal courts review Elections Clause challenges to state courts interpretation of state laws regulating federal elections. For one thing, an anti-novelty version of ISL impedes a natural way in which law develops—by parties making new arguments, supported by new evidence, and new theories. There will always be a first time when a particular state court finds a partisan gerrymandering claim justiciable. Would the anti-novelty version of ISL bar that? It shouldn’t, but as always with this Court, TBD. There will also always be a first time for every kind of state court challenge to state election laws, including when a state legislature adopts a new or different kind of law regulating federal elections. Would the anti-novelty version of ISL bar a state constitutional challenge to a state law announcing that the state legislature gets to throw out ballots it doesn’t like? It shouldn’t, even if that case would raise a first of a kind challenge to a first of a kind law. The point is that the Elections Clause should not operate as some kind of bar on state courts adjudicating new or different kinds of claims or reviewing new or different kinds of theories or invalidating new or different kinds of state laws.

The anti-novelty version of ISL is especially troubling because it has the potential to undermine the state courts’ relationship with the people and state voters. Many state courts, unlike their federal counterparts, are elected and subject to elections. That system provides one mechanism for democratic feedback between state courts and the people; the anti-novelty version of ISL could thwart or undermine democracy if it prevents people from using judicial elections to try and change the direction of the law and the direction of the state courts.

Take the recent election that resulted in the WI Supreme Court having a majority of progressive, liberal nominees for the first time in awhile. In that election, the candidates talked about whether Wisconsin’s extremely gerrymandered maps were rigged (Dan Kelly, who lost the race, had been involved in defending the gerrymandered maps). Would the anti-novelty ISL bar the Wisconsin Supreme Court from rethinking the Court’s prior jurisprudence embracing rigged maps and prior writings in which 3 Justices indicated they would throw out votes in Milwaukee as part of the effort to challenge the results of the 2020 election? Again, it shouldn’t, but it’s hard to know where this Court might take such a principle.

More generally, the anti-novelty version of the ISL is at odds with what Miriam Seifter and Jessica Bulman-Pozen have called the “democracy principle” in state constitutions. That principle, they explain, is one that ensure that state constitutions and state courts and state offices more generally will be responsive to the people. And as people’s views change – say by recognizing the danger from partisan gerrymandering or the danger from voter suppression or what not – the democracy principle ensures that state courts and state constitutions register those views. But a strong anti-novelty version of ISL might be used as a way to prevent state courts from changing the law or moving its direction.

Only Justice Kavanaugh wrote to embrace Chief Justice Rehnquist’s concurrence, and the anti-novelty bent of that concurrence in particular. Let’s hope no one else is drawn to the siren song of anti-novelty in this area too.