Election litigation after Moore v. Harper–lessons from habeas review of state courts

This is the first in a few posts looking at litigation comparable to the issues in Moore v. Harper to see if any lessons can be learned from those areas. I started with the Takings Clause here. I’ll look at habeas next.

Federal courts review state court criminal judgments of criminal defendants who are incarcerated. There are gobs of complexities to this process. But one notable legal hook arose when Congress enacted the Antiterrorism and Effective Death Penalty Act of 1995. It’s in 28 U.S.C. § 2254:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States . . . .

State courts handle a lot of questions of federal law in habeas–Miranda, Brady, Strickland, and so on. But this provision, as construed by the Supreme Court over the last couple of decades, means that federal courts defer to how state courts apply federal law. If they get federal law flat out wrong, there’s a chance (subject to other hurdles) for a federal court to grant habeas. But if state courts get federal law right, federal courts defer to state courts unless the state courts engaged in an “unreasonable application of, clearly established Federal law.”

There are plenty of disputes about what’s “clearly established,” and sometimes nuanced differences in cases before the Supreme Court mean the law was not “clearly established” for lower courts to follow. And there are plenty of disputes about about whether the state courts unreasonably applied federal law. But the mood here is one of deference.

Now, the comparison to Moore v. Harper is imperfect at best. Moore suggests that federal courts should defer to state courts unless they “transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” It’s not clear how that necessarily lines up with “contrary to, or involved an unreasonable application of, clearly established Federal law.” It is an imperfect analogy at best. But the imperfection is illuminating.

Start with the source of law. State courts are interpreting and applying quintessential federal law–the Fifth Amendment, the Sixth Amendment, and so on. And these are laws determined by the United States Supreme Court. If anything should receive less deference, one might expect it to be the interpretation of federal law. But habeas assures some level of deference. (And one does not need to canvass the academic literature long to find critiques of federal courts being too deferential.)

One reason for deference is practical–the Supreme Court has explained that it does not necessarily want to revisit state court judgments because they are entrusted to handle these questions. In other habeas contexts, the court has pointed to concerns of “finality,” and concerns that state courts can become “frustrated” if federal courts offer new guidance to them. Another is the fact that Congress here spoke. As the Court saw it, Congress drafted the statute to constrain federal court review of state court judges.

In the Takings Clause context, courts ask whether there is a “fair and substantial basis” in state law. In habeas, courts examine whether there was an “unreasonable application of, clearly established Federal law.” It’s not clear how much daylight there is between the two–or with a standard like “transgress the ordinary bounds of judicial review.” (That said, in habeas, state courts are examined for whether they unreasonably applied clearly established law of the Supreme Court. It’s a little different than review of the statements of law itself that arise under the Takings Clause and the Elections Clause.)

But it’s worth, I think, looking at this imperfectly-analogous context, like looking at the Takings Clause, to think about how federal courts go about reviewing state court decisionmaking. Here, even in a case of reviewing federal law, and in a case involving individual federal rights (something also present in the Takings Clause, and not exactly present in the Legislature Thereof Clauses), federal courts are deferential to state courts. Sometimes petitioners win, but this ground has been a barrier to many claims (admittedly, there are plenty of other barriers in habeas, too).

As claims after Moore v. Harper move forward, I continue to wonder about the likelihood of success given the mood of deference. I suggested the Takings Clause offers one suggestion that there is not a great avenue for Legislature Thereof Clause success in the future. Habeas might be another analogy to consider, where federal courts defer to state courts, even if they disagree.

Or maybe it’ll simply be the case that emphasis on the differences in the types of this litigation will crop up (as I noted before, there is certainly a political salience in election cases!) for a robust opportunity to distinguish Moore from other cases. I continue to take a wait and see approach and wonder where the analogies may be best for future litigation.

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