Tag Archives: Moore v. Harper

The Profound Ahistoricism of Moore v. Harper

The Supreme Court will hear arguments tomorrow about the scope of state legislative authority to determine “the time, place, and manner” of federal elections. Petitioners’ position is that state legislatures are freed from state constitutional constraints when they make decisions about where polling places are located, how many hours polls have to be open, the terms on which early or absentee voting is available, and—most importantly—how congressional districts are drawn. In making these choices, state legislatures, they argue, do not need to abide by state supreme court decisions interpreting their state constitutions.

Election lawyers, constitutional scholars, and interest groups from across the political spectrum have raised significant questions about this interpretation of the Elections Clause. They have questioned the practicality of this so-called Independent State Legislature Theory, and they have raised significant doubts about the evidence supporting Petitioners’ textualist and originalist claims. Petitioners have been chastised for relying on fake historical documents and for cherry picking quotes from famous nineteenth-century legal commentators.

Few, however, have highlighted the more profound ahistoricism of Petitioners’ position. Petitioners make much of the dearth of evidence of state court decisions striking down state legislation regulating federal elections. But they present no information about how elections were administered for much of the nineteenth century.

Indeed, a reader of the briefs—an earnest law clerk, for example—could easily be left with the impression that elections in the early nineteenth century worked essentially like they do today. Nothing could be farther from the truth. The kind of time, place, and manner regulation at the heart of Moore v. Harper largely did not exist until the late nineteenth century.

Elections through the late nineteenth century were shockingly informal by modern standards. While state constitutions set voter qualifications and residency requirements, there was very little by way of what we would call time, place, and manner regulations. Early elections were festive occasions in which voting took places over the course of several day, often with free drinks. In the early 1800s, states did intervene to replace viva voce voting with written ballots, and by 1868, American Legal Treatise writer, Thomas M. Cooley would assert that “[t]he mode of voting in this country, at all general elections, is almost universally by ballot.” Still, the process of voting was extremely rudimentary.

The first written ballots were simply pieces of paper upon which one recorded a vote. More importantly, even when handwritten written ballots were replaced with printed ballots, it was the political parties who handed them out to voters. Factions of the same party would provide different slates of candidates to voters on their competing paper ballots, and the state played no role in monitoring the process. A few cities eventually required parties to use a single-color paper when distributing ballots. Before 1870, even voter registration requirements were exceedingly rare. Where they existed, they simply required local officials to keep a list of eligible voters.

It was only in the late nineteenth century that state legislatures began in earnest to pass time, place, and manner regulations as we know them. State courts were quickly asked to review the constitutionality of the new laws by partisans. When they did, state courts applied the provisions of their state constitutions–and they did so without distinguishing between the applicability of their rulings to state as compared to federal elections.

An earnest reader of the briefs could just as easily come away with the impression that, like today, Congress was divided into single-member districts in the early nineteenth century and that states diligently redistricted each decade, as required by the Constitution. But it was not until the Apportionment Act of 1842 (yes 1842!) that single-member congressional districts were mandated. At the time of its enactment, there were twenty-six states in the Union. 10 states used at large voting for House elections. Petitioners offer no information about how often states actually redistricted before 1842 (or after). This silence is particularly glaring given that in the period prior to Baker v. Carr, despite the constitutional requirement, states frequently did not redraw their state or congressional maps. In the absence of such information, what exactly can be made of the fact that no state court appears to have invalidated a state legislature’s congressional map on substantive state-constitutional grounds?

Finally, this same earnest reader—this law clerk without a lot of historical background—could easily miss a very basic historical fact: Federal courts did not exercise general federal question jurisdiction, as we know it, until 1875—the end of Reconstruction. This is why state courts were the primary forum for resolving disputes in the nineteenth century.

Petitioners may have answers to the implications of these many historical differences. No doubt their fallback position to the last is that the critical issue is not which court exercised jurisdiction but what constitutional law they apply. But the fact that they have felt free to submit tens of pages of briefing with no mention of the profound institutional changes that have occurred with respect to the practicalities of both our electoral and our judicial systems is profoundly telling about the fundamental flaws of the law office history that drives originalism today.

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“Voting Without State Checks and Balances? A Close Look at the Independent State Legislature Theory”

The New York City Bar Association hosted this excellent panel discussion, co-sponsored by the Brennan Center, in advance of next week’s oral arguments in Moore v. Harper. The panel featured Carter Phillips (Sidley Austin LLP, Counsel of Record for Amicus Curiae Conference of Chief Justices), Tom Wolf (Deputy Director with the Brennan Center’s Democracy Program), and Professor Carolyn Shapiro (author of The Independent State Legislature Theory, Federal Courts, and State Law (forthcoming in the U. Chicago Law Review)). It was moderated by my colleague, Anil Kalhan and spearheaded by Marcy L. Kahn, Chair of the Rule of Law Task Force of the City Bar Association.

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“Top State Judges Make a Rare Plea in a Momentous Supreme Court Election Case”

N.Y. Times Sidebar: The Conference of Chief Justices has filed a brief in Moore v. Harper opposing the independent state legislature doctrine. The Chief Justice of the Texas Supreme Court (accurately, in my view), told the N.Y. Times: “It’s the biggest federalism issue in a long time . . . Maybe ever.”

“The conference’s brief, which was nominally filed in support of neither party, urged the Supreme Court to reject that approach, sometimes called the independent state legislature theory. The Constitution, the brief said, “does not oust state courts from their traditional role in reviewing election laws under state constitutions.”

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