Justice Scott Kafker of the Massachusetts Supreme Judicial Court and his co-author Simon Jacobs have published a new article, The Supreme Court Summons the Ghosts of Bush v. Gore: How Moore v. Harper Haunts State and Federal Constitutional Interpretation of Election Laws, 59 Wake Forest L. Rev. 61 (2024).
There is a dangerous lack of clarity in the Supreme Court’s recent decision in Moore v. Harper, which held that state supreme courts’ interpretations of their state election laws are subject to review and reversal in federal court when “they transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislature to regulate federal elections.” By resurrecting the reasoning of Bush v. Gore, with particular emphasis on the concurrence by Chief Justice Rehnquist, the Supreme Court risks unleashing the same chaotic reaction to the judiciary caused by the original decision.
But this is not necessary. In our view, the original understanding of the Elections Clause provides for a very limited form of additional federal oversight. The provision does not authorize the Supreme Court to substitute its judgment for state courts on the meaning of state election statutes or state constitutions, as Chief Justice Rehnquist did in Bush v. Gore. Nor does it authorize an open-ended inquiry into what it means to transgress the ordinary bounds of judicial review, as there is no consensus on the Supreme Court or other courts on what that means. It also does not prevent state courts from providing greater protection of voting rights than that provided by state legislatures or the federal Constitution when such rights are granted by the state constitution. Nor does it impose a particular interpretive methodology on state courts in interpreting their constitutions or the federal constitutional conception of separation of powers or stare decisis. It only prevents state courts from performing the function of state legislatures, as the state legislatures are expressly responsible under the federal Constitution for prescribing the time, place, and manner of elections, subject to state constitutional review. Justice Souter’s dissent in Bush v. Gore encapsulates the overreach at issue. State courts may not create new election laws untethered to the legislative act or state constitutional provision in question. Such fundamental rewriting of the election laws, and usurpation of the legislative function is forbidden.