Amicus Curiae Brief — Timothy K. Moore, in His Official Capacity as Speaker of the North Carolina House of Representatives, et al., Petitioners v. Rebecca Harper, et al.

No. 21-1271

IN THE

Supreme Court of the United States

TIMOTHY K. MOORE, in his official capacity as

Speaker of the North Carolina House of

Representatives, et al.,

Petitioners,

v.

REBECCA HARPER, et al.,

Respondents.

ON WRIT OF CERTIORARI TO

THE NORTH CAROLINA SUPREME COURT

BRIEF OF AMICUS CURIAE

HONEST ELECTIONS PROJECT

IN SUPPORT OF PETITIONERS

Cameron T. Norris

Counsel of Record

Thomas R. McCarthy

Tiffany H. Bates

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Suite 700

Arlington, VA 22209

(703) 243-9423

cam@consovoymccarthy.com

September 6, 2022

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Interest of Amicus Curiae ...........................................1

Introduction & Summary of Argument ......................1

Argument .....................................................................3

I. Scholarly critics of the founders’ choice to

empower state legislatures misread the

text, history, and precedent. ..........................3

A. Text ............................................................4

B. History .......................................................7

C. Precedent ................................................. 13

II. Critics’ fears that honoring the founders’

choice will “wreak havoc” on elections are

overblown. ..................................................... 17

A. Honoring the founders’ choice will not

underempower other state actors. ......... 17

B. Honoring the founders’ choice will not

overempower federal courts. .................. 19

Conclusion ................................................................. 21

ii

TABLE OF AUTHORITIES

Cases

Ariz. State Leg. v. Ariz. Indep. Redistricting

Comm’n, 576 U.S. 787 (2015) ....................... 4, 6, 14

Baker v. Carr,

369 U.S. 186 (1962) ............................................... 10

Bouie v. City of Columbia,

378 U.S. 347 (1964) ............................................... 20

Bush v. Palm Beach Cnty. Canvassing Bd.,

531 U.S. 70 (2000) ............................................. 6, 13

Carson v. Simon,

978 F.3d 1051 (8th Cir. 2020) ................................. 2

DNC v. Wis. State Leg.,

141 S. Ct. 28 (2020) ................................................. 3

Hawke v. Smith,

253 U.S. 221 (1920) ............................................. 4, 5

La Abra Silver Min. Co. v. United States,

175 U.S. 423 (1899) ............................................... 16

Leser v. Garnett,

258 U.S. 130 (1922) ..................................... 5, 14, 15

McPherson v. Blacker,

146 U.S. 1 (1892) ......................................... 4, 13, 14

Moore v. Harper,

142 S. Ct. 1089 (2022) ............................................. 6

Patterson v. Barlow,

60 Pa. 54 (1869) ....................................................... 9

Printz v. United States,

521 U.S. 898 (1997) ................................................. 7

iii

R.R. Comm’n of Tex. v. Pullman Co.,

312 U.S. 496 (1941) ............................................... 20

Republican Party of Pa. v. Boockvar,

141 S. Ct. 1 (2020) ................................................... 3

Republican Party of Pa. v. Degraffenreid,

141 S. Ct. 732 (2021) ..................................... 3, 4, 20

Smiley v. Holm,

285 U.S. 355 (1932) ................................. 4, 6, 15, 16

State ex rel. Smiley v. Holm,

184 Minn. 228, 238 N.W. 494 (1931) .................... 16

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) ................................................. 6

Constitutional Provisions

U.S. Const., art. I, §2 ................................................... 8

U.S. Const., art. I, §4, cl. 1 ................................ 2, 4, 18

U.S. Const., art. II, §1, cl. 2..................................... 2, 4

U.S. Const., art. II, §1, cl. 4....................................... 18

U.S. Const., art. V ................................................. 5, 15

Del. Const. Art. 1, §3 (1792) ...................................... 10

Ga. Const. of 1789, art. IV., §1 .................................. 11

Pa. Const. Art. IX, §5 (1790) ....................................... 8

Tenn. Const. Art. I, §5 (1870) ................................... 10

Tenn. Const. Art. XI, §5 (1796) ................................... 9

Tenn. Const. Art. XI, §5 (1835) ............................. 9, 10

Vt. Const. Art. VIII (1793) .......................................... 9

iv

Other Authorities

1 Story, Commentaries on the Constitution

(4th ed. 1873)........................................................... 3

Amar, Bush v. Gore and Article II: Pressured

Judgment Makes Dubious Law, 48 Fed. Law.

27 (2001) ............................................................ 1, 14

Amars, Eradicating Bush-League Arguments

Root and Branch: The Article II IndependentState-Legislature Notion and Related

Rubbish, 2021 Sup. Ct. Rev. 1 (2021)..... 1, 6, 15, 19

An Address of the Council of Censors to the

People of Vermont (1799-1800), in Records

of the Council of Censors of the State of Vt.

(Gillies and Sanford, eds. 1991).............................. 9

Clegg, Elector Qualifications, in Heritage Guide....... 8

Cooley, A Treatise on the Constitutional Limitations

Which Rest Upon the Legislative Power of the

States of the American Union (6th ed. 1890) ......... 5

Council of Revision Proceedings (July 15, 1789),

in 2 Messages from the Governors

(1777-1822) (Charles Lincoln, ed. 1909) ........ 12, 13

Del. 1776 Decl. of Rights, §6 ..................................... 10

Holland, The Delaware State Constitution, in The

Oxford Commentaries on State Constitutions of

the United States (2011) ....................................... 10

Journal of Debates and Proceedings in the

Convention of Delegates, Chosen to Revise the

Constitution of Massachusetts (Boston Daily

Advertiser, rev. ed. 1853)........................................ 8

v

Lawson, Supremacy Clause, in Heritage Guide

to the Constitution (2d ed. 2014) ............................ 7

Morley, The Independent State

Legislature Doctrine,

90 Fordham L. Rev. 501 (2021) ...... 2, 15, 17, 18, 20

Morley, The Independent State Legislature

Doctrine, Federal Elections, and State

Constitutions, 55 Ga. L. Rev. 1 (2020).......... passim

Morley, The Intratextual Independent

“Legislature” and the Elections Clause,

109 Nw. U. L. Rev. Online 131 (2015) .......... 5, 6, 15

Shapiro, The Independent State Legislature

Theory, Textualism, and State Law,

91 U. Chi. L. Rev. __ (forthcoming 2023) . 14, 15, 19

Smith, History of the Article II Independent

State Legislature Doctrine,

29 Fla. St. U. L. Rev. 731 (2001) ................ 2, 11, 15

Smith, Revisiting the History of the

Independent State Legislature Doctrine,

53 St. Mary’s L. J. 445 (2022) ....................... 7, 8, 15

The Articles of Confederation, Const. Ann.,

bit.ly/3pW6Bha ....................................................... 7

Tribe, Erog v. Hsub and its Disguises: Freeing

Bush v. Gore from Its Hall of Mirrors,

115 Harv. L. Rev. 170 (2001) ................................ 19

Weingartner, Liquidating the Independent State

Legislature Theory, 46 Harv. J.L. & Pub. Pol’y

__ (forthcoming 2022)............................................ 11

Wilson, The Legislative Department, Lectures on

Law (1791), bit.ly/3TkrZdD .................................... 9

1

INTEREST OF AMICUS CURIAE *

The Honest Elections Project is a nonpartisan organization devoted to supporting the right of every

lawful voter to participate in free and honest elections.

Through public engagement, advocacy, and public-interest litigation, the Project defends the fair, reasonable measures that legislatures put in place to protect

the integrity of the voting process. The Project supports commonsense voting rules and opposes efforts to

reshape elections for partisan gain. It has a significant

interest in this case, as it implicates the legislature’s

preeminent role in setting the rules for elections.

INTRODUCTION &

SUMMARY OF ARGUMENT

Some scholars, including those who claim to care

about the Constitution’s original public meaning, criticize what they call the “independent state legislature” doctrine. According to Vikram and Akhil Amar,

the original meaning of state “legislature” was “an entity created and constrained by the state constitution.”

Amars, Eradicating Bush-League Arguments Root

and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish, 2021 Sup. Ct. Rev.

1, 19 (2021). So “Article II was intended to vest ultimate control in … the people of the state,” not in state

legislatures. Amar, Bush v. Gore and Article II: Pressured Judgment Makes Dubious Law, 48 Fed. Law.

* Per this Court’s Rule 37.6, this brief was not authored in

whole or in part by any party, and no one other than amicus or

its counsel made a monetary contribution to its preparation or

submission. The parties consent to its filing.

2

27, 32 (2001). Hayward Smith even claims that the

founders “rejected a decisive role for state legislatures.” Smith, History of the Article II Independent

State Legislature Doctrine, 29 Fla. St. U. L. Rev. 731,

783 (2001) (emphasis added). Like the Amars, Smith

thinks the Constitution “intended … to empower the

people of each state as much as, if not more than, the

legislatures.” Id.

The Amars and Smith are mistaken. What they

call a “doctrine” is really the plain meaning of the

Elections and Electors Clauses. The founders vested

the power to regulate federal elections in the state

“Legislature.” U.S. Const., art. I, §4, cl. 1; art. II, §1,

cl. 2. They knew how to vest powers in “each state as

an entity,” but they chose to vest this power in “a particular organ of state government” instead. Morley,

The Independent State Legislature Doctrine, 90 Fordham L. Rev. 501, 503 (2021). “By its plain terms,” the

Constitution dictates that “a legislature’s power in

this area … cannot be taken from them or modified

even through their state constitutions.” Carson v. Simon, 978 F.3d 1051, 1059-60 (8th Cir. 2020) (cleaned

up). The contrary scholarship misreads the constitutional text, history, and precedent.

This Court enforces the Constitution regardless of

predicted consequences, but the consequences here

would be net positive. State legislatures will remain

constrained by the federal constitution, state constitutional requirements concerning voter qualifications,

and congressional supervision. Federal courts will

provide the same modest check they already provide

3

in our constitutional system. And state courts and executives will be free to interpret and administer—but

not rewrite—the legislature’s written election code.

Meanwhile, this Court will vindicate the founders’

“structural allocation of primary authority over federal elections to the political branches—specifically, to

representative legislative assemblies.” Morley, The

Independent State Legislature Doctrine, Federal Elections, and State Constitutions, 55 Ga. L. Rev. 1, 34

(2020). Vindicating that structural principle requires

reversal here.

ARGUMENT

I.

Scholarly critics of the founders’ choice to

empower state legislatures misread the

text, history, and precedent.

“A discretionary power over elections must be

vested somewhere,” 1 Story, Commentaries on the

Constitution §816 (4th ed. 1873), and the founders

chose to vest it in state legislatures. Critics of the

founders’ choice have branded this principle the

“independent state legislature” doctrine. But the

elections clauses are not some judge-made “doctrine”;

their exclusive delegation to state legislatures is right

there in the constitutional text. See DNC v. Wis. State

Leg., 141 S. Ct. 28, 34 n.1 (2020) (Kavanaugh, J.,

concurring in denial of application to vacate stay);

Republican Party of Pa. v. Boockvar, 141 S. Ct. 1, 2

(2020) (Alito, J., concurring in denial of motion to

expedite). It is firmly rooted in our history. See

Morley, 55 Ga. L. Rev. at 37-65. And it is grounded in

“more than a century” of this Court’s precedents.

Republican Party of Pa. v. Degraffenreid, 141 S. Ct.

4

732, 733 (2021) (Thomas, J., dissenting from denial of

certiorari) (citing McPherson v. Blacker, 146 U.S. 1, 25

(1892).

A. Text

Article I’s Elections Clause and Article II’s Electors Clause authorize the state “Legislature” to regulate the “Manner” of conducting congressional elections and appointing presidential electors. U.S.

Const., art. I, §4, cl. 1; art. II, §1, cl. 2. The term “legislature” was not “of uncertain meaning when incorporated into the Constitution.” Hawke v. Smith, 253

U.S. 221, 227 (1920). The legislature was “the representative body which ma[kes] the laws of the people.”

Smiley v. Holm, 285 U.S. 355, 365 (1932). Indeed,

“every state constitution from the Founding Era that

used the term legislature defined it as a distinct multimember entity comprised of representatives.” Ariz.

State Leg. v. Ariz. Indep. Redistricting Comm’n, 576

U.S. 787, 828 (2015) (Roberts, C.J., dissenting). Thus

the term should be interpreted “as referring solely and

exclusively to the multimember body of representatives within each state generally.” Id. at 134.

Founding-era sources confirm that the Constitution adopts this plain meaning of “legislature.” The

Letters from a Federal Farmer, which were published

during

the

ratification

debates,

interpret

“Legislature” in the Elections Clause to mean

“institutional state legislatures.” See Morley, 55 Ga.

L. Rev. at 29. Chancellor Kent’s Commentaries on

American Law reach the same conclusion. Id. And

5

every state constitution from the era defined “legislature” as “a distinct multimember entity comprised

of representatives with the authority to enact laws.”

Morley, The Intratextual Independent “Legislature”

and the Elections Clause, 109 Nw. U. L. Rev. Online

131, 147, & n. 101 (2015). Cooley’s 1890 treatise

understood this specific reference to state legislatures

as an exclusive grant of authority: “So far as the

election of representatives in Congress and electors of

president and vice president is concerned, the State

constitutions cannot preclude the legislature from

prescribing the ‘times, places, and manner of holding’

the same.” Morley, 55 Ga. L. Rev. at 9 (citing Cooley,

A Treatise on the Constitutional Limitations Which

Rest Upon the Legislative Power of the States of the

American Union 754 n.1 (6th ed. 1890)).

This definition lines up with the Constitution’s

other uses of “legislature.” Take Article V, for

example. That provision empowers the “Legislature”

of each state to ratify constitutional amendments. Yet

that authority “transcends any limitations sought to

be imposed by the people of a State.” Leser v. Garnett,

258 U.S. 130, 137 (1922). Similarly, absent a convention, Article V allows States to ratify a constitutional

amendment only by a vote of its institutional legislature—a public referendum will not do. Hawke, 53

U.S. at 225, 227. Indeed, “[t]he language of the article”

was so “plain” that it “admits of no doubt in its

interpretation.” Id.

The Amars and Smith would read “legislature” to

mean “the people,” but their reading would render the

word meaningless. The Constitution could have said—

6

as critics wish—that federal election rules “are to be

prescribed ‘by each State,’ which would have left it up

to each State to decide which branch, component, or

officer of the state government should exercise that

power.” Moore v. Harper, 142 S. Ct. 1089, 1090 (2022)

(Alito, J., dissenting from denial of stay). “But that is

not what the Elections Clause says.” Id. Instead, it

vests that power in the state legislature. Critics of

that decision cannot overcome the founders’ intentional choice by rewriting “the constitutional term ‘the

Legislature’ to mean ‘the people.’” Arizona State Leg.,

576 U.S. at 825 (Roberts, C.J., dissenting).

The Constitution’s Supremacy Clause does not

help the critics. Cf. Amars 19. Because the Supremacy

Clause makes the federal constitution supreme over

contrary statutes, critics claim that the founders

would have expected state constitutions to be supreme

over contrary state laws regulating federal elections.

But the problem with that view is that “States lack

inherent power to regulate federal elections.” Morley,

109 Nw. U. L. Rev. Online at 132. That power comes

not from the States’ residual sovereignty, but from “a

direct grant of authority” in the federal constitution.

Bush v. Palm Beach Cnty. Canvassing Bd., 531 U.S.

70, 76 (2000). The elections clauses are “‘express delegations of power’ that confer upon state legislatures

the power to ‘provide a complete code’ for federal elections.” Morley, 109 Nw. U. L. Rev. Online at 132 (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779,

805 (1995); Smiley, 285 U.S. at 366). The Supremacy

Clause makes this constitutional grant override contrary state constitutions, not the other way around.

7

The Articles of Confederation do not help the

critics either. Cf. Smith, Revisiting the History of the

Independent State Legislature Doctrine, 53 St. Mary's

L. J. 445, 480-84 (2022). True, the States regulated

federal elections, including with their state constitutions, under the Articles. But unlike the Constitution,

the Articles had no supremacy clause. See The Articles

of Confederation, Const. Ann., bit.ly/3pW6Bha (noting

that while the Articles required States to “abide by the

determinations of” congress, “the effect of that

provision was limited”). Lacking such a clause, state

law was king. So it was of course “understood that

‘legislatures’ were … subject to substantive regulations by state constitutions.” Smith, 53 St. Mary’s L.

J. at 482. But the Supremacy Clause fundamentally

altered that structure, making federal law under the

new Constitution “supreme over competing sources of

state law.” Lawson, Supremacy Clause, in Heritage

Guide to the Constitution (2d ed. 2014).

B. History

Critics also get the history wrong. Most glaring is

the dog that didn’t bark: No scholar has documented

a robust, founding-era practice of state courts using

state constitutions to nullify duly-enacted statutes

regulating federal elections. See Printz v. United

States, 521 U.S. 898, 918 (1997) (dismissing recent

practice in favor of “almost two centuries of apparent

… avoidance”). And scholars simply ignore the many

times that “federal and state authorities” denied the

existence of that authority. See generally Morley, 55

Ga. L. Rev. at 37-92.

8

Start with the Massachusetts constitutional convention of 1820. When a delegate introduced a

provision attempting to “limit” the state legislature’s

“exercise of … discretion” in redistricting, another

delegate—Justice Story—explained that the convention had no “right to insert in [the state] constitution

a provision which controls or destroys a discretion ...

which must be exercised by the Legislature, in virtue

of powers confided to it by the constitution of the

United States.” Id. at 39-40 (quoting Journal of

Debates and Proceedings in the Convention of

Delegates, Chosen to Revise the Constitution of

Massachusetts 3 (Boston Daily Advertiser, rev. ed.

1853)). The amendment was subsequently defeated on

that basis. Id.

The best the critics do is point to various “free and

equal” provisions in early state constitutions, which

did purport to regulate federal elections. See Smith,

53 St. Mary’s L. J. at 491. But those early clauses are

best understood to regulate voter qualifications under

Article I, §2, not the manner of conducting congressional elections or appointing presidential electors.

Unlike the elections clauses, the Voter Qualifications

Clause contains no reference to state “legislatures.”

Instead, it gives “authority for determining elector

qualifications to the states” themselves. Clegg, Elector

Qualifications, in Heritage Guide.

“Free and equal” election clauses were explicitly

linked to the Voter Qualifications Clause. When Pennsylvania’s 1790 constitution provided that “elections

shall be free and equal,” Pa. Const. Art. IX, §5 (1790),

James Wilson tied this clause to “the qualifications of

9

electors.” Wilson, The Legislative Department, Lectures on Law (1791), bit.ly/3TkrZdD. The Pennsylvania supreme court later confirmed this reading. In

Patterson v. Barlow, that court upheld a special voter

registry law in Philadelphia. In doing so, it explained

that the free and equal elections clause simply secures

the right to vote to qualified voters. See 60 Pa. 54, 63

(1869) (explaining that making an election “unequal”

means enacting “different rules as to different classes

of persons claiming to vote”).

Or consider Vermont. In Article VIII of its first

constitution, Vermont explicitly tied the goal that “all

elections ought to be free” to voter qualifications; the

relevant provision guaranteed that “all freemen,

having a sufficient, evident, common interest with,

and attachment to the community” had the right to

vote. Vt. Const. Art. VIII (1793). Just a few years

later, the council of censors confirmed this meaning.

Addressing the people of Vermont, the council

explained that Article VIII barred the legislature from

giving the state supreme court the power to “dis[en]franchise a freeman for any evil practice which shall

render him notoriously scandalous”—in other words,

to disqualify qualified voters. An Address of the

Council of Censors to the People of Vermont (17991800), in Records of the Council of Censors of the State

of Vt. 156 (Gillies and Sanford, eds. 1991).

Tennessee is another good example. Article XI, §5

of its first constitution provided “[t]hat all Elections

shall be free and equal.” Tenn. Const. Art. XI, §5

(1796). This language was reaffirmed unchanged at

the 1835 state constitutional convention. Tenn. Const.

10

Art. XI, §5 (1835). When it was amended in 1870,

Tennessee confirmed that the right to “free and equal”

elections was about voter qualifications:

That elections shall be free and equal and the

right of suffrage, as hereinafter established,

shall never be denied to any person entitled

thereto, except upon a conviction by a jury of

some infamous crime, previously ascertained

and declared by law, and judgment thereon by

court of competent jurisdiction.

Tenn. Const. Art. I, §5 (1870). This Court read it the

same way. Baker v. Carr read Tennessee’s “free and

equal” language to “provid[e] that no qualifications

other than age, citizenship and specified residence

requirements shall be attached to the right of

suffrage.” 369 U.S. 186, 272 (1962).

Delaware was the same way. Article I, §3 of its

1792 constitution provided that “All elections shall be

free and equal.” Del. Const. Art. 1, §3 (1792). This

language built on and replaced similar language in

Delaware’s 1776 declaration of rights. Holland, The

Delaware State Constitution, in The Oxford Commentaries on State Constitutions of the United States 36

(2011). The declaration provided that “all elections

ought to be free and frequent and every freeman,

having sufficient evidence of a permanent common

interest with, and attachment to the community, hath

a right to suffrage.” Del. 1776 Decl. of Rights, §6.

Again, the “free and equal” language was tied to voter

qualifications.

11

Michael Weingartner, in his recent article, makes

a similar mistake by pointing to the voter-qualification regulations in Georgia’s constitution. Weingartner writes that “State constitutions featured in

some of the earliest contested House elections, and in

each case, there was no doubt they controlled.” Weingartner, Liquidating the Independent State Legislature Theory, 46 Harv. J.L. & Pub. Pol’y __, 56

(forthcoming 2022). In contesting his election against

Anthony Wayne, for example, James Jackson successfully “argu[ed] that several voters had cast their

ballots outside of their home counties in violation of

the Georgia Constitution, which required that voters

‘have resided six months within the county.’” Id. But,

once again, Weingartner mistakes the source of that

power. The referenced residency requirement came

from a provision of the Georgia constitution that

spelled out voter qualifications. See Ga. Const. of

1789, art. IV, §1 (providing that voters must be

“citizens,” be “inhabitants of this State,” be “twentyone years” old, have recently paid taxes, and have

“resided six months within the county”). This

provision plainly stemmed from Georgia’s authority

under the Voter Qualifications Clause, not the

Georgia legislature’s authority under the Elections

Clause.

The critics also misunderstand why, in 1789, New

York’s council of revision vetoed the legislature’s bill

providing the method of appointing U.S. Senators.

Smith claims that the council rejected the bill as

“inconsistent with the public good.” Smith, 29 Fla. St.

at 761. But the council’s veto message makes clear

that it believed the bill was “inconsistent with the

12

public good” precisely because it limited the state

legislature’s power in violation of the federal constitution:

The Council object against the said bill

becoming a Law of this State as inconsistent

with the public good—

1st. Because the Constitution of the United

States directs, that senators be chosen from

each State, by the Legislature thereof. If by

the Legislature is intended the members of

the two Houses not acting in their legislative

capacity, no law is necessary to prescribe the

mode of election, concurrent resolutions

extending in this case as well to the mode of

election as to the choice of persons; and the

bill, as far as it goes operates as a

restriction upon the constitutional rights

of the two Houses. If the Legislature are only

known in their legislative capacity the

Senators can constitutionally be appointed by

law only, and no considerations arising from

inconvenience, will justify a deviation from

the constitution of the United States.

2d. Because this bill, when two senators are to

be chosen, enacts that in case of the

disagreement of the two Houses, in the

nomination, each House shall out of the

nomination of the other choose one, and that

such persons shall be the senators to

represent this State; and thus by compelling

each House to choose one of two persons,

13

neither of whom may meet with their

approbation, establishes a choice of senators

by the separate act of each branch of the

Legislature; in direct opposition to the

Constitution of the United States, which in

the third section of the first article declares

that they shall be chosen by the Legislature.

Council of Revision Proceedings (July 15, 1789), in 2

Messages from the Governors (1777-1822) 303

(Charles Lincoln, ed. 1909) (emphases added). Far

from rebutting the principle of legislative exclusivity,

this episode further confirms the founding generation’s fealty to it.

C. Precedent

The critics have the biggest problem squaring

their theory with this Court’s precedents. In Palm

Beach County, a unanimous Court confirmed that the

Electors Clause is “a direct grant of authority” to the

state “legislature.” 531 U.S. at 76. And so while

federal courts typically “defe[r] to a state court’s

interpretation” of state law, state courts can violate

the Electors Clause if they apply state constitutions to

“‘circumscribe the legislative power.’” Id. at 76-77

(quoting McPherson, 146 U.S. at 25). These

statements make little sense if, as the critics claim,

state courts are free to invalidate legislatures’ regulations of federal elections.

But this Court’s unanimous opinion in Palm

Beach County is not the only precedent that the critics

would overrule; the critics also dismiss this Court’s

14

1892 decision in McPherson as “cryptic language” and

“ambiguous or contradictory dicta.” Amar 32; Shapiro,

The Independent State Legislature Theory, Textualism, and State Law, 91 U. Chi. L. Rev. __, 16

(forthcoming 2023). In McPherson, this Court

considered whether the “state legislature … could

divide authority to appoint [presidential] electors

across each of the State’s congressional districts.”

Ariz. State Leg., 576 U.S. at 839-40 (Roberts, C.J.,

dissenting). This Court upheld the law, emphasizing

that “the plain text of the Presidential Electors Clause

vests the power to determine the manner of

appointment in ‘the Legislature’ of the State.” Id.

“That power, the Court explained, ‘can neither be

taken away nor abdicated.’” Id. (quoting McPherson,

146 U.S. at 35; emphasis added). Indeed, the Court

concluded that the Electors Clause “leaves it to the

legislature exclusively to define the method of

effecting the object.” McPherson, 146 U.S. at 27. That

“clause’s grant of federal constitutional power

specifically to the state legislature ‘operat[es] as a

limitation upon the State in respect of any attempt to

circumscribe the legislative power,’ including through

the state constitution.” Morley, 55 Ga. L. Rev. at 84

(quoting McPherson, 146 U.S. at 25). Other than

Congress’s power “to determine the time of choosing

the electors and the day on which they are to give their

votes,” the state legislature’s power is “exclusive.”

McPherson, 146 U.S. at 35.

Critics also largely ignore this Court’s decision in

Leser. There, challengers questioned the validity of

the Nineteenth Amendment’s ratification “on the

grounds that some state constitutions barred their

15

legislatures from ratifying such an amendment.”

Morley, 90 Fordham L. Rev. at 537-38. This Court

rejected the challenge, holding that ratification is a

“federal function derived from the Federal

Constitution; and it transcends any limitations sought

to be imposed by the people of a State.” Leser, 258 U.S.

at 137. Again, that interpretation of Article V is

crucial because, like the elections clauses, Article V

singles out state “legislatures.” Yet the critics relegate

Leser to footnotes—if they mention it at all. E.g.,

Shapiro n.58; Amars n.85; Smith, 29 Fla. St. U. L.

Rev. at n.43; Smith, 53 St. Mary’s L. J. at n.450.

While the critics cite Smiley v. Holm, that decision

comes nowhere close to holding that state constitutions can override legislatures’ substantive regulations of federal elections. In Smiley, this Court held

that the governor of Minnesota could veto the

legislature’s congressional redistricting plan. 285 U.S.

at 373. State legislatures enacting laws under the

Elections Clause, this Court explained, can be forced

to follow the “manner … in which the Constitution of

the state has provided that laws shall be enacted.” Id.

at 367-68 (emphasis added). But Smiley “never held

that the term legislature should mean something

other than a state’s institutional, representative

lawmaking body”; it held “only that when such an

entity exercises authority under the Elections Clause,

it must do so subject to the standard lawmaking

process.” Morley, 109 Nw. U. L. Rev. Online at 144-45.

Smiley thus did not address “whether a state constitution may impose substantive limits on the content of

measures.” Morley, 55 Ga. L. Rev. at 78 (emphases

added). To the contrary, Smiley acknowledged that

16

the Constitution’s “comprehensive words” let state

legislatures “provide a complete code for congressional

elections.” 285 U.S. at 366. So while Smiley means

that state constitutions can impose enforceable procedures for enacting legislation that regulates federal

elections, it says nothing about state constitutions

regulating the substance. Morley, 55 Ga. L. Rev. at 25.

Smiley is also defensible on simpler grounds.

Later in the opinion, Smiley contemplates that States

can regulate federal elections through referenda

approved by the people. See 285 U.S. at 371-72. The

reason was not because the Constitution’s reference to

“legislature” really means “the people”; the reason

was that state constitutions typically define referenda

as “‘part of the legislative power of the state.’” Id. at

372 (emphasis added). But the same could be said of

gubernatorial vetoes. Cf. La Abra Silver Min. Co. v.

United States, 175 U.S. 423, 453 (1899) (noting that

the presidential veto “is legislative in its nature”);

State ex rel. Smiley v. Holm, 184 Minn. 228, 235, 238

N.W. 494, 498 (1931) (entertaining the notion that

“the veto power is a legislative power” under the

Minnesota constitution). On this understanding of

Smiley, the governor was acting as part of the

legislature when he vetoed that body’s election law.

Yet that understanding does not help the critics here.

No State considers its judiciary to be exercising legislative power when it interprets the state constitution

(or its executive to be exercising legislative power

when it administers state law).

17

II. Critics’ fears that honoring the founders’

choice will “wreak havoc” on elections are

overblown.

Critics and respondents alike warn that enforcing

the elections clauses as written “would wreak havoc

upon elections nationwide.” NC-League-BIO 35-36.

They claim that a ruling for the petitioners would

threaten “every state constitutional provision that

touches congressional elections.” Id. These sky-isfalling takes are not remotely realistic.

A. Honoring the founders’ choice will not

underempower other state actors.

Recognizing that “legislature” means the institutional legislature does not remove other state actors

from the electoral process. It merely constrains state

courts and executives from ignoring or invalidating

clear laws passed by the legislature.

State courts and executives can still interpret the

legislature’s regulations of federal elections. Interpretation is not usurpation; it is a traditional exercise of

judicial and executive power. “Under this approach,

since a legislature adopts only the text of a statute,

the Constitution requires election officials and courts

to apply that text, even if they ordinarily would take

into account extrinsic considerations like the state

constitution.” Morley, 90 Fordham L. Rev. at 505. In

other words, nonlegislative actors can offer good-faith

interpretations of ambiguous laws. But they cannot

invoke state constitutions as a basis to strike down or

willfully ignore clear laws.

18

Similarly, respondents’ claims that they could not

“successfully hold federal elections” if the legislature

is the only body allowed to regulate federal elections

is unserious. State-BIO 31. State and local officials

can still adopt and carry out rules or procedures

affecting federal elections, but “only if the legislature

has authorized them to do so.” Morley, 90 Fordham L.

Rev. at 509. Officials “may not take it upon themselves

to suspend or ignore state law.” Id. The notion that the

executive can enforce and administer, but not rewrite,

acts of the legislature is already the law in all fifty

States.

Nor will state legislatures operate without meaningful checks. As mentioned, given the different

wording of the Voter Qualifications Clause, state

constitutions can still constrain how the legislature

regulates the qualifications for voting. State legislatures also must honor federal law, including the Due

Process Clause, which both state and federal courts

can enforce. Indeed, “many state constitutions’ election-related provisions simply reiterate protections

already established under the U.S. Constitution,” the

latter of which “remain in force.” Morley, 55 Ga. L.

Rev. at 91. The Constitution also contemplates that

Congress, not the courts, will be the main check on

state legislatures. The Elections Clause empowers

Congress to “make or alter” the state legislatures’

regulations of congressional elections. U.S. Const.,

art. I, §4, cl. 1. And though the Electors Clause gives

Congress less power over presidential elections, the

Constitution still lets Congress dictate “the Time”

when electors are chosen and “the Day” when they

must vote. U.S. Const., art. II, §1, cl. 4. These many

19

checks guard against alarmist concerns about rogue

state legislatures changing the election rules late in

the game.

B. Honoring the founders’ choice will not

overempower federal courts.

Some critics find it ironic that federal courts

would enforce the election clauses when “the key point

of Article II’s election language (and the companion

language of Article I) was to empower states.” Amars

18. They also contend that federal courts lack an

immersive understanding of individual states’ “legal

culture, precedent, and constitutions,” which would

“detract from their ability to interpret … particular

state laws.” Shapiro 54. Neither point is persuasive.

The elections clauses do not “empower states”;

they empower state legislatures. So there is nothing

ironic about enforcing those clauses against state

courts and state executives who violate them. Once

that question-begging assumption is cleared away,

the notion that federal courts have “the institutional

function of checking the state court’s construction of

state election legislation to ensure that federal

constitutional ground rules (here, those of Article II)

are followed is unexceptional.” Tribe, Erog v. Hsub

and its Disguises: Freeing Bush v. Gore from Its Hall

of Mirrors, 115 Harv. L. Rev. 170, 193 (2001). Indeed,

the “federal judiciary ... must ensure compliance with

Article II and every other provision of the federal

Constitution that in some way constrains the process

for choosing presidential electors.” Id. at 188. Nor is

this duty particularly novel or complicated. This

20

Court can and does review state courts’ interpretations of state law under other provisions of the

Constitution. E.g., Bouie v. City of Columbia, 378 U.S.

347 (1964) (Due Process Clause); Morley, 90 Fordham

L. Rev. at 520-23 (collecting other examples).

And federal courts will play only a modest, netbeneficial role. Much election-related litigation would

still be decided in state courts. Morley, 90 Fordham L.

Rev. at 514. In cases where “the scope of an election

official’s authority under state law is unclear,” federal

courts can abstain and “allow the state judiciary to

resolve the issue” first. Id.; see R.R. Comm’n of Tex. v.

Pullman Co., 312 U.S. 496 (1941). And for those cases

properly in federal court, unelected federal judges—

further removed from political considerations than

their state counterparts—might be better situated to

neutrally evaluate election-related issues. Morley, 90

Fordham L. Rev. at 513. Federal judges can also

strengthen election integrity by serving as a check on

state judges who are tempted to stray from preexisting rules during contested partisan elections. Id.

at 527. In this way, federal courts can bolster the

“predictability consistency, and stability” of election

law. Id.

Indeed, this Court would go a long way toward

restoring confidence in our elections by resolving, once

and for all, “who has authority to set or change” the

rules governing federal elections. Degraffenreid, 141

S. Ct. at 734 (Thomas, J., dissenting from denial of

certiorari). When nonlegislative officials try to nullify

or ignore the legislature’s written election code, the

Constitution has a clear answer: the written election

21

code prevails. The state court here did not honor that

principle.

CONCLUSION

For these reasons and more, this Court should

reverse the decision below.

Respectfully submitted,

Cameron T. Norris

Counsel of Record

Thomas R. McCarthy

Tiffany H. Bates

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Suite 700

Arlington, VA 22209

(703) 243-9423

cam@consovoymccarthy.com

September 6, 2022

Counsel for Amicus Curiae