Some thoughts on state power to conduct presidential primaries (and why the Moore v. Harper claim may really be legally meritless)

On the heels of some arguments raised by Marty Lederman and challenged by Richard Bernstein, I wanted to weigh in on Professor Lederman’s side–and in doing so, turn to agree with Mr. Bernstein’s sharp observation the Moore v. Harper issue of the Legislature Thereof Clause is likely legally meritless and shouldn’t receive any real attention from the Supreme Court.

I want to focus on the opening caveat: this is about the source of state power. There can be limitations on state power elsewhere in the Constitution. But what is the source of state power over a presidential election?

The Supreme Court in 1975 in Cousins v. Wigoda:

The States themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice-Presidential candidates.

The Court in 1981 in Democratic Party of United States v. Wisconsin ex rel. La Follette:

The State attempts to add constitutional weight to its claims with the authority conferred on the States by Art. II, § 1, cl. 2, of the United States Constitution: “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which a State may be entitled.” . . . Any connection between the process of selecting electors and the means by which political party members in a State associate to elect delegates to party nominating conventions is so remote and tenuous as to be wholly without constitutional significance.

In the face of this black letter law, I find it hard to agree with Mr. Bernstein’s remark, “The formidable Prof. Marty Lederman recently has argued that the Electors Clause does not apply to presidential primaries because primaries elect delegates rather than electors. This particular argument, however, is wrong.”

Mr. Bernstein pivots to the Elections Clause, where the primaries and the general election are linked. But this is not persuasive to me, because congressional primaries and presidential primaries function quite differently.

Congressional primaries function as a winnowing stage for the general election. True, they are open to the voting public and do infringe, to some degree, on parties’ abilities to associate (mitigated by the Court’s decision in Tashjian et al.). But the winning candidate of a party’s primary automatically advances to the general election (with some occasional exceptions as Mr. Bernstein identifies). Classic points out that this primary winner may not win the general election–so be it. But the primary is an essential step ahead of the general election, and two are formally linked.

Not so with the presidential primary. To start, the state has effectively no role linking the primary results and the general election. It transmits primary results to the party; the party does what it wants with them. To claim there’s a “winner” of a presidential primary is a misnomer, because, except in certain winner-take-all circumstances, there are multiple winners who claim some number of delegates for the nominating convention. And the candidate who receives the most votes in the state does not necessarily advance to the general election–Hillary Clinton “won” the 2008 New Hampshire primaries; Bernie Sanders in 2016 and 2020. But a different Democratic candidate appeared on the general election ballot in New Hampshire. That’s because the state has no control over this process as if it were internal to one state, like it has control over its appointment of electors, or its election of representatives and senators. The nomination of a presidential candidate is something different in kind.

It would be possible, I suppose, for a state to hold a straw poll or some convention-like model for congressional primaries, and I think it would raise interesting questions about whether this is an exercise of Article I power or not, and the degree to which Congress could regulate it or not. But I think this possibility does not disclaim the Court’s holdings in Cousins and Democratic Party. These primary elections are functionally not the same thing.

But to Mr. Bernstein’s related point–what material difference does this make as a ballot access issue as to state power–I am in much closer agreement. What is the source of state power to create a presidential primary? The Tenth Amendment, or, if one wants, the Constitution is simply silent and states are free to act.

But there are independent limitations on state power. States cannot, for instance, exclude voters on the basis of race from participating in the primaries; they may not add qualifications to candidates; they may not run afoul of Anderson-Burdick scrutiny. (I highlight some of these points in my brief, pp. 12 & 19-22.) Functionally, then, it may not much matter where the source of power.

Functionally, except in one place it’s a big deal, and I’m ashamed to admit I’d never connected these dots., Mr. Bernstein writes, “However, if the Electors Clause does not apply, Mr. Trump could not use Moore v. Harper, 600 U.S. 1 (2023), to challenge how the Colorado Supreme Court interpreted its authority under Colorado law.”

Yes, that’s true. Moore v. Harper cannot apply to a presidential primary.

If Cousins and Democratic Party are correct (and I think they are), then the source of state power over presidential elections is not Article II. And Article II has the language, “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors . . . .”

While I asked earlier this week if the Colorado Secretary of State revitalized the issue of Moore v. Harper by securing time at oral argument earmarked to this issue (and the ballot access issue), I’d operated under the assumption I’ve had for a while–of course the Moore v. Harper issue (which, while about the Elections Clause, gave favorable treatment to the related issue under the Presidential Electors Clause in Bush v. Gore) was still alive. And even though my briefs in this case (and below) cite Cousins and Democratic Party, I’d kept Moore v. Harper as a background principle (or backstop principle) for statutory interpretation.

I don’t think that’s right. Cousins-Democratic Party severs any application Bush-Moore has with the Legislature Thereof Clause and its application to a presidential primary. And if that’s the case, the Moore v. Harper argument is simply meritless. (That said, Trump’s reply brief dedicates just one paragraph to the issue, so perhaps his hopes weren’t high on it, anyway.)

Perhaps others have raised this elsewhere and I’ve missed it–and if so, my apologies for not seeing it! But while I think Professor Lederman has the structural argument right, Mr. Bernstein illuminates an important consequence of the structural argument in this case.

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