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.

Supreme Court briefSep 6, 2022

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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,

REBECCA HARPER, et al.

Respondents.

On Writ of Certiorari

to the North Carolina Supreme Court

BRIEF OF AMICUS CURIAE

THE CLAREMONT INSTITUTE’S CENTER FOR

CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONERS

JOHN C. EASTMAN

Counsel of Record

ANTHONY T. CASO

CONSTITUTIONAL COUNSEL GROUP

174 W. Lincoln Ave, #620

Anaheim, CA 92805

(714) 943-9983

jeastman@ccg1776.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICUS CURIAE.............................1

SUMMARY OF ARGUMENT .....................................1

ARGUMENT ...............................................................3

I. The Power Conferred on the State

“Legislatures” by the Elections Clause, Like

That Conferred by the Electors Clause, Is

Plenary. ............................................................. 3

II. Properly Understood, the Constitution’s

Assignment of Authority to the “Legislature of

the State” Is Not An Assignment to Legislative

Authority of the State, as Prior Decisions of

this Court Have Suggested. ........................... 10

III.At the Very Least, Hildebrant, Smiley, and

Arizona Should be Cabined to the Methods for

Lawmaking Contained in State Constitutions,

Not to Substantive Constraints Contained

Therein. ........................................................... 23

CONCLUSION .......................................................... 25

TABLE OF AUTHORITIES

Cases

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935)................................................ 16

Arizona State Legislature v. Arizona Indep.

Redistricting Comm’n,

576 U.S. 787 (2015)........................................ passim

Arizona v. The Inter Tribal Council of Arizona, Inc.,

570 U.S. 1 (2013)......................................................1

Bush v. Gore,

531 U.S. 98 (2000)...................................... 4, 6, 7, 10

Bush v. Palm Beach Cnty. Canvassing Bd.,

531 U.S. 70 (2000)....................................................4

Chisholm v. Georgia,

2 U.S. (2 Dall.) 419 (1793) ..................................... 21

Commonwealth ex rel. Dummit v. O’Connell,

181 S.W.2d 691 (Ky. Ct. App. 1944) ........................9

Ft. Leavenworth R. Co. v. Lowe,

114 U.S. 525 (1885)................................................ 14

Gundy v. United States,

139 S.Ct. 2116 (2019)...............................................1

Hawke v. Smith,

253 U.S. 221 (1920)................................................ 13

In re Opinion of Justices,

45 N.H. 595 (1864) ...................................................8

In re Plurality Elections,

8 A. 881 (R.I. 1887) ..................................................7

iii

Knox v. Serv. Employees Int’l Union,

567 U.S. 298 (2012)..................................................1

Leser v. Garnett,

258 U.S. 130 (1922)................................................ 13

Luther v. Borden,

48 U.S. 1 (1849)...................................................... 15

McPherson v. Blacker,

146 U.S. 1 (1892)............................................ passim

New York v. United States,

505 U.S. 144 (1992)................................................ 17

Paul v. United States,

371 U.S. 245 (1963)................................................ 14

Smiley v. Holm,

285 U.S. 355 (1932)........................................ passim

State ex rel. Beeson v. Marsh,

34 N.W.2d 279 (Neb. 1948)......................................8

State of Ohio ex rel. Davis v. Hildebrant,

241 U.S. 565 (1916)........................................ passim

State of Rhode Island v. Palmer [Nat’l Prohibition

Cases],

253 U.S. 350 (1920)................................................ 13

State of Virginia v. State of W. Virginia,

78 U.S. 39 (1870).................................................... 15

Term Limits v. Thornton,

514 U.S. 779 (1995)................................................ 21

Statutes

Act of Feb. 28, 1795, 1 Stat. 424, 3rd Cong., Sess. II,

Ch. 36 ..................................................................... 15

Cal. Gov’t Code § 111 ................................................ 14

Other Authorities

1 MAX FARRAND, THE RECORDS OF THE FEDERAL

CONVENTION OF 1787 (1911) .................................. 24

121 S. Rep. No. 43-395 (1874) .....................................9

3 THE DOCUMENTARY HISTORY OF THE FIRST FEDERAL

ELECTIONS, 1788-90 (Merrill Jensen et al. eds.,

1976) ....................................................................... 19

A Const. Convention Not the Legislature of A State.,

12 U.S. Op. Atty. Gen. 428 (1868) ......................... 14

Act for the Admission of W. Virginia into the Union.,

10 U.S. Op. Atty. Gen. 426, 428 (1862) ........... 14, 15

Amar, Vikram David and Amark Akhil Reed,

Eradicating Bush-League Arguments Root and

Branch: The Article II Independent-StateLegislature Notion and Related Rubbish, 2021

Sup. Ct. Rev. 1 (2021) ........................................ 5, 23

Blaustein, Richard, Fringe No More? Independent

State Legislature Theory, Washington Lawyer

(Sept./Oct. 2022) ......................................................5

Clark, Walter, The Electoral College and Presidential

Suffrage, 65 U. Pa. L. Rev. 737 (1917) ....................9

D.W. Bartlett, Digest of Election Cases, H.R. Misc.

Doc. No. 41-152 (1870) .............................................9

Eastman, John C., Open to Merit of Every

Description? An Historical Assessment of the

Constitution’s Qualifications Clauses, 73 Denver

University Law Review (Fall 1995) ........................1

Federalist 59 (Rossiter, ed., 1961) ............................ 19

Federalist 69 (Rossiter, ed., 1961) ............................ 21

Federalist 73 (Rossiter, ed., 1961) ............................ 21

Friedman, Richard D., Trying to Make Peace with

Bush v. Gore, 29 Fla. St. U. L. Rev. 811 (2001) .... 10

Hale, Matthew, THE HISTORY OF THE COMMON LAW

OF ENGLAND (London, J. Nutt 1713) ..................... 21

Morley, Michael T., The Intratextual Independent

‘Legislature’ and the Elections Clause, 109 Nw. U.

L. Rev. Online 131 (Jan. 19, 2015) ................ 5, 9, 17

Senate Rep. 1st Sess. 43d Cong. No. 395 ............... 4, 7

Shapiro, Carolyn, The Independent State Legislature

Theory, Federal Courts, and State Law, 90 U. Chi.

L. Rev. __ (forthcoming 2023)..................................5

Smith, Hayward H., History of the Article II

Independent State Legislature Doctrine, 29 Fla. St.

Univ. L. Rev. 731 (2001) ........................................ 19

Rules

Rule 37.3(a)..................................................................1

Sup. Ct. Rule 37.2(a) ...................................................1

Sup. Ct. Rule 37.6........................................................1

Constitutional Provisions

Minn. Const. art. IV, § 1 ........................................... 20

Minn. Const. art. IV, § 11 ......................................... 20

Minn. Const. art. V, § 1 ............................................. 20

Neb. Const. art. III, § 1 ............................................. 20

U.S. Const. Amdt. XVII ................................. 11, 13, 17

U.S. Const. Art. I, § 1 ................................................ 21

U.S. Const. Art. I, § 2 ................................................ 13

U.S. Const. Art. I, § 3, cl. 1 ........................... 11, 13, 17

U.S. Const. Art. I, § 3, cl. 2 ....................................... 23

U.S. Const. Art. I, § 4, cl. 1 ............................... passim

U.S. Const. Art. I, § 8, cl. 17 ............................... 11, 17

U.S. Const. Art. II, § 1, cl. 2 .............................. passim

U.S. Const. Art. IV, § 3, cl. 1 ............................... 12, 14

U.S. Const. Art. IV, § 4............................ 12, 15, 17, 23

U.S. Const. Art. V ...................................................... 12

U.S. Const. Art. VI, cl. 3 ............................................ 13

INTEREST OF AMICUS CURIAE1

The Center for Constitutional Jurisprudence is the

public interest law arm of the Claremont Institute,

whose stated mission is to restore the principles of the

American founding to their rightful and preeminent

authority in our

national life. The Center has previously appeared before this Court in several cases addressing core constitutional principles of federalism

and separation of powers, similar to those at issue in

this case. See, e.g., Gundy v. United States, 139 S.Ct.

2116 (2019); Arizona v. The Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013). Its affiliated scholars

have likewise written extensively about the Constitution’s federalism and separation-of-powers principles,

including in the context of the Elections Clause at issue here. See, e.g., John C. Eastman, Open to Merit of

Every Description? An Historical Assessment of the

Constitution’s Qualifications Clauses, 73 Denver University Law Review (Fall 1995).

SUMMARY OF ARGUMENT

The Constitution contains two provisions related

to the “manner” of conducting federal elections. The

first, Article I, § 4, cl. 1 (the “Elections Clause”), assigns to the “Legislature” of each State the power to

direct the “time, place, and manner” for conducting

elections to members of the House of Representatives.

The second, Article II, § 1, cl. 2 (the “Electors Clause”),

1 Pursuant to this Court’s Rule 37.3(a), this amicus brief is filed

with the consent of the parties. Pursuant to Rule 37.6, Amicus

Curiae affirms that no counsel for any party authored this brief

in whole or in part and that no person or entity other than Amicus Curiae, its members, or its counsel made a monetary contribution to fund the preparation and submission of this brief.

similarly assigns to the “Legislature” of each State the

power to direct the “manner” of choosing presidential

electors. The latter authority is “plenary,” as is the

former with respect to the division of authority within

the State, though it is subject to an override by Congress.

This Court’s decisions in State of Ohio ex rel. Davis

v. Hildebrant, 241 U.S. 565 (1916), Smiley v. Holm,

285 U.S. 355 (1932), and Arizona State Legislature v.

Arizona Indep. Redistricting Comm’n, 576 U.S. 787

(2015), misconstrued the Constitution’s clear assignment of authority to the “legislature” to instead mean

“the legislative authority,” wherever it is vested by a

state’s own constitution. But when performing federal

functions, the legislatures of the several states are not

operating pursuant to state authority, but rather pursuant to federal authority, and cannot be constrained

by anything in state law or even a state constitution

to the contrary.

This case moves the needle even further from the

explicit text of Article I (and the parallel text in Article

II). There is simply no plausible argument that the judicial branch of the states is in any way exercising a

legislative authority. Instead, the court below, contrary to the Constitution’s unambiguous assignment

of power to the state legislature, set the “manner” for

conducting congressional elections itself, thereby removing the power over elections from the most accountable branch of government (the legislature) to

the least accountable branch of government (the judiciary).

ARGUMENT

The Power Conferred on the State “Legislatures” by the Elections Clause, Like That

Conferred by the Electors Clause, Is Plenary.

The Elections Clause, U.S. Const. Art. I, § 4, cl. 1,

assigns to the “Legislature” of each State the power to

direct the “time, place, and manner” for conducting

elections to members of the House of Representatives.

The Electors Clause, U.S. Const. Art. II, § 1, cl. 2, similarly assigns to the “Legislature” of each State the

power to direct the “manner” of choosing presidential

electors.

In McPherson v. Blacker, 146 U.S. 1, 25 (1892),

this Court recognized that the power assigned to the

state legislatures under the Article II Electors Clause

to direct the “manner” of choosing presidential electors—a provision parallel in text and purpose to the

Elections Clause at issue here—was “plenary.” “[T]he

whole subject” of the appointment of electors “is committed” to the Legislature, the Court held. Id. “The

constitution does not provide that the appointment of

electors shall be by popular vote,” it added. “It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature

exclusively to define the method of effecting the object.” Id. (emphasis added).

Significantly, the McPherson Court also recited

with approval a lengthy passage from an 1874 report

made by Senator Oliver Morton, Chairman of the Senate Committee on Privileges and Elections. In that report, Senator Morton noted that, under Article II,

“[t]he appointment of these electors is thus placed absolutely and wholly with the legislatures of the several states.” Id. at 34 (quoting Senate Rep. 1st Sess.

43d Cong. No. 395). “This power is conferred upon the

legislatures of the states by the constitution of the

United States,” the report continued, “and cannot be

taken from them or modified by their state constitutions any more than can their power to elect senators

of the United States.” Id. at 35. “Whatever provisions

may be made by statute, or by the state constitution,

to choose electors by the people, there is no doubt of

the right of the legislature to resume the power at any

time, for it can neither be taken away nor abdicated.”

Id. The Court also noted that the words “in such manner as the legislature thereof may direct” “operat[e] as

a limitation upon the State in respect of any attempt

to circumscribe the legislative power….” Id. at 24 (citing Art. II, § 1, cl. 2).

In Bush v. Palm Beach Cnty. Canvassing Bd., 531

U.S. 70, 76 (2000) (per curiam), this Court unanimously approved of that latter language from McPherson and remanded to the Florida Supreme Court to

clarify whether that court’s prior decision had failed

to heed McPherson’s admonition but instead “saw the

Florida Constitution as circumscribing the legislature’s authority under Art. II, § 1, cl. 2.” Then, in Bush

v. Gore, this Court referred to the holding in McPherson “that the state legislature’s power to select the

manner of appointing electors is plenary,” and reiterated that “there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated.” Bush v. Gore, 531

U.S. 98, 104 (2000) (per curiam, quoting McPherson,

146 U.S. at 35 (cleaned up)). Chief Justice Rehnquist,

joined by Justices Scalia and Thomas, wrote a separate concurring opinion to note as an additional

ground for the decision what had been explained in

McPherson: “Art. II, § 1, cl. 2 ‘convey[s] the broadest

power of determination’ and ‘leaves it to the legislature exclusively to define the method of appointment.”

531 U.S. at 113 (Rehnquist, C.J, concurring) (quoting

McPerson, 146 U.S. at 27). Accordingly, the Florida

Supreme Court’s departure from the election code

adopted by the Legislature “impermissibly distorted”

the Legislature’s election laws “beyond what a fair

reading required, in violation of Article II.” Id.

Following the contested 2020 election, a number of

legal commentators have denigrated this constitutional assignment of authority to the “Legislatures” of

the states as a “novel,” “unprecedented,” “fringe,” even

“unconstitutional” “independent state legislature theory.” See, e.g., Carolyn Shapiro, The Independent State

Legislature Theory, Federal Courts, and State Law, 90

U. Chi. L. Rev. __ (forthcoming 2023)2; Vikram David

Amar and Akhil Reed Amar, Eradicating BushLeague Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish, 2021 Sup. Ct. Rev. 1 (2021); Richard Blaustein,

Fringe No More? Independent State Legislature Theory, Washington Lawyer (Sept./Oct. 2022). It is anything but. See, e.g., Michael T. Morley, The Intratextual Independent ‘Legislature’ and the Elections

Clause, 109 Nw. U. L. Rev. Online 131, 138 (Jan. 19,

2015) (describing the “independent state legislature

doctrine” as “longstanding”). Contrary to the policy

preferences of these commentators, the framers of the

2 Available at https://ssrn.com/abstract=4047322.

Constitution quite explicitly and deliberately assigned these important political tasks to the branch of

state government most directly accountable to the

people.

Professors Vikram Amar and Akhil Amar have

also contended that in the passages cited in both the

Bush v. Gore majority per curiam opinion and the concurrence by Chief Justice Rehnquist, McPherson did

not actually mean what it said. This, they claim, because the McPherson Court elsewhere stated that

“[t]he legislative power is the supreme authority except as limited by the constitution of the State.” Amar,

supra, at 31. Read in context, that quotation means

exactly the opposite of what the Amars claim. Here’s

the full passage:

The state does not act by its people in their collective capacity, but through such political

agencies as are duly constituted and established. The legislative power is the supreme authority, except as limited by the constitution of

the state, and the sovereignty of the people is

exercised through their representatives in the

legislature, unless by the fundamental law

power is elsewhere reposed. The constitution of

the United States frequently refers to the state

as a political community, and also in terms to

the people of the several states and the citizens

of each state. What is forbidden or required to

be done by a state is forbidden or required of the

legislative power under state constitutions as

they exist. The clause under consideration does

not read that the people or the citizens shall appoint, but that ‘each state shall;’ and if the

words, ‘in such manner as the legislature thereof

may direct,’ had been omitted, it would seem

that the legislative power of appointment could

not have been successfully questioned in the absence of any provision in the state constitution

in that regard. Hence the insertion of those

words, while operating as a limitation upon the

state in respect of any attempt to circumscribe

the legislative power, cannot be held to operate

as a limitation on that power itself.

McPherson, 146 U.S. at 25 (emphasis added). This

Court expressly noted that if the federal Constitution

had only authorized the “state” to determine the manner for appointing electors, it would be the legislature

that would do the work in the absence of provisions in

the state constitution directing otherwise. But the insertion of the words, “in such manner as the legislature thereof may direct,” the Court noted, operates as

a “limitation upon the state in respect of any attempt

to circumscribe the legislative power.” Id. In other

words, because the federal Constitution clearly assigns the authority to the state legislature as a body,

the power so delegated to the state legislature could

not be constrained even by the state’s own constitution—exactly what the McPherson Court stated later

in the opinion in the passages cited by the Bush v.

Gore majority and concurring opinions. See id. at 35

(“This power is conferred upon the legislatures of the

states by the constitution of the United States, and

cannot be taken from them or modified by their state

constitutions any more than can their power to elect

senators of the United States.”) (quoting Senate Rep.

1st Sess. 43d Cong. No. 395)).

Several state courts have drawn the same conclusion from the Constitution’s text as did the McPherson

Court. In In re Plurality Elections, 8 A. 881, 882 (R.I.

1887), for example, the Supreme Court of Rhode Island addressed whether members of Congress could

be elected by a plurality, as specified by an Act of the

Legislature, or could only be elected with a majority

vote, as specified in the state’s constitution. It held

that the majority requirement in the state constitution was of “no effect” with respect to federal elections

because it would “impose a restraint upon the power

of prescribing the manner of holding such elections

which is given to the legislature by the constitution of

the United States without restraint, so long as and to

the extent that congress refrains from making regulations in the same manner.” Id. at 882.

In State ex rel. Beeson v. Marsh, 34 N.W.2d 279

(Neb. 1948), the Nebraska Supreme Court reached a

similar conclusion with respect to the Electors Clause.

It rejected a bid by electors for the Progressive Party

to be placed on the ballot under a state constitutional

provision requiring that “[a]ll elections shall be free.”

Following McPherson, it held that the provision in the

state constitution “may not operate to ‘circumscribe

the legislative power’ granted by the Constitution of

the United States.” Id. at 246 (quoting McPherson).

Other state courts have reached the same conclusion. In In re Opinion of Justices, 45 N.H. 595 (1864),

the New Hampshire Supreme Court upheld an act of

the legislature permitting absent civil war soldiers to

vote from their military location despite a provision in

the state constitution to the contrary. “The authority

of the State legislature” under the Elections Clause “is

derived from the … Constitution of the United

States,” it held, and “is not an exercise of their general

legislative authority under the Constitution of the

State, but of an authority delegated by the Constitution of the United States.” “The constitution and laws

of this State are entirely foreign to the question.” Id.

at 601. See also Commonwealth ex rel. Dummit v.

O’Connell, 181 S.W.2d 691, 692, 695 (Ky. Ct. App.

1944) (upholding a similar absentee voter law allowing World War II soldiers to vote in congressional and

presidential elections despite the right to vote absentee “being denied by the State Constitution”).

Congress, too, has recognized that under the Elections Clause, the legislature of a state can allow for

votes to be cast in federal elections in a manner that

would be prohibited by the state constitution for state

elections. In Baldwin v. Trowbridge, the House upheld the validity of votes cast in a congressional election pursuant to a state law that authorized voting by

military members who were absent from their districts on Election Day, despite a state constitutional

provision requiring that all votes be cast in person.

D.W. Bartlett, Digest of Election Cases, H.R. Misc.

Doc. No. 41-152, at 46-47 (1870) (cited in Morley, supra, at 150). And the U.S. Senate Committee on Privileges and Elections likewise concluded that a state

legislature's power under the Electors Clause to regulate presidential elections cannot be:

[T]aken from [state legislatures] or modified by

their State constitutions any more than can

their power to elect Senators of the United

States. Whatever provisions may be made by

statute, or by the State constitution, to choose

electors by the people, there is no doubt of the

right of the legislature to resume the power at

any time, for it can neither be taken away nor

abdicated.

121 S. Rep. No. 43-395, at 9 (1874) (cited in Morley,

supra, at 150). See also, e.g., Walter Clark, The Electoral College and Presidential Suffrage, 65 U. Pa. L.

Rev. 737, 741 (1917) (“[T]he exercise of such power [to

regulate presidential elections] is given to the state

legislature subject to no restriction from the state constitution.”); Richard D. Friedman, Trying to Make

Peace with Bush v. Gore, 29 Fla. St. U. L. Rev. 811,

835 (2001) (“Suppose, then, that the state constitution

forbade felons to vote. If the legislature, operating under the authority granted it by Article II rather than

by the state constitution, decided that this limitation

should not apply in voting for presidential electors,

the legislative choice should prevail.”).

McPherson’s analysis with respect to the plenary

power of the state legislatures under the Electors

Clause of Art. II, § 1, cl. 2, as well as those of the several state courts and of Congress discussed above, is

persuasive. And because the text of the Elections

Clause is nearly identical to that of the Electors

Clause (albeit subject to a congressional override in

the former), the analysis is equally persuasive with

respect to the power of the state legislatures under the

Elections Clause. It is a plenary power granted to the

Legislatures of the states, “and cannot be taken from

them or modified by their state constitutions any more

than can their power to elect senators of the United

States.” McPherson. 146 U.S. at 35.

II. Properly Understood, the Constitution’s Assignment of Authority to the “Legislature of

the State” Is Not An Assignment to Legislative Authority of the State, as Prior Decisions of this Court Have Suggested.

Chief Justice Roberts correctly noted in the Appendix to his dissenting opinion in Arizona State Legislature v. Arizona Indep. Redistricting Comm’n that the

federal Constitution assigns to the Legislatures of

each state numerous specific tasks:

•

Art. I, § 3, cl. 1: “The Senate of the United

States shall be composed of two Senators from

each State, chosen by the Legislature thereof, for

six Years; and each Senator shall have one

Vote.” (Emphasis added, modified by Amdt. 17);

•

Art. I, § 3, cl. 2: “… if Vacancies happen by Resignation, or otherwise, during the Recess of the

Legislature of any State, the Executive thereof

may make temporary Appointments until the

next Meeting of the Legislature, which shall

then fill such Vacancies.” (Emphasis added,

modified by Amdt. 17);

•

Art. I, § 4, cl. 1: “The Times, Places and Manner

of holding Elections for Senators and Representatives, shall be prescribed in each State by

the Legislature thereof; but the Congress may

at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” (Emphasis added);

•

Art. I, § 8, cl. 17: “Congress shall have power …

to exercise like Authority [i.e., exclusive jurisdiction] over all Places purchased by the Consent of the Legislature of the State in which the

Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful

Buildings....” (Emphasis added);

•

Art. II, § 1, cl. 2: “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 the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under

the United States, shall be appointed an Elector.” (Emphasis added);

•

Art. IV, § 3, cl. 1: “New States may be admitted

by the Congress into this Union; but no new

State shall be formed or erected within the Jurisdiction of any other State; nor any State be

formed by the Junction of two or more States,

or Parts of States, without the Consent of the

Legislatures of the States concerned as well as

of the Congress.” (Emphasis added);

•

Art. IV, § 4: “The United States shall guarantee

to every State in this Union a Republican Form

of Government, and shall protect each of them

against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.” (Emphasis added);

•

Art. V: “The Congress, whenever two thirds of

both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on

the Application of the Legislatures of two thirds

of the several States, shall call a Convention for

proposing Amendments, which, in either Case,

shall be valid to all Intents and Purposes, as

Part of this Constitution, when ratified by the

Legislatures of three fourths of the several

States, or by Conventions in three fourths

thereof, as the one or the other Mode of Ratification may be proposed by the Congress; ….”

(Emphasis added);

•

Art. VI, cl. 3: “The Senators and Representatives before mentioned, and the Members of the

several State Legislatures, and all executive

and judicial Officers, both of the United States

and of the several States, shall be bound by

Oath or Affirmation, to support this Constitution; ….” (Emphasis added).

See Arizona, 576 U.S. at 850 (Roberts, C.J., dissenting; Appendix).

Leaving aside for the moment the Article I Elections Clause at issue here (and the parallel Electors

Clause in Article II), the Legislatures of the several

states act unilaterally in each case, without their decisions being subjected to a gubernatorial veto, or popular referendum, or any other constraints in their respective state constitutions. See, e.g., State of Rhode

Island v. Palmer [Nat’l Prohibition Cases], 253 U.S.

350, 386 (1920) (“The referendum provisions of state

constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in

the ratification or rejection of amendments to it.”); Leser v. Garnett, 258 U.S. 130, 137 (1922) (“the function

of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of

Congress in proposing the amendment, is a federal

function derived from the federal Constitution; and it

transcends any limitations sought to be imposed by

the people of a state.”); Hawke v. Smith, 253 U.S. 221,

227-28 (1920) (noting that, prior to the 17th Amendment, Senators were chosen by “the legislature” pursuant to Article I, Section 3, whereas members of the

House of Representatives were chosen “by the people”

pursuant to Article I, Section 2); A Const. Convention

Not the Legislature of A State., 12 U.S. Op. Atty. Gen.

428 (1868) (“A cession of jurisdiction over land purchased by the United States by a constitutional convention of a State is not a consent to the purchase by

the legislature of the State within the sense of [Article

I, § 8, cl. 17 of] the Constitution”)3; Ft. Leavenworth R.

Co. v. Lowe, 114 U.S. 525, 541 (1885) (noting that, in

the settlement of a boundary dispute between the

United States and Great Britain over territory within

the jurisdiction of the States of Maine and Massachusetts, it was deemed necessary to obtain the consent

of the Legislatures of those States, which was accomplished in Maine by Commissioners “appointed by her

legislature,” and in Massachusetts by Commissioners

appointed “by her governor, under the authority of an

act of her legislature”); Act for the Admission of W.

Virginia into the Union., 10 U.S. Op. Atty. Gen. 426,

428 (1862) (“The consent required by [Art. IV, § 3, cl.

1 of] the Constitution [for the formation of new States

out of the territory of existing States] is not the consent of the State generally, nor of its governor, nor its

3 To be sure, state legislatures frequently provide their “consent”

for the transfer of “exclusive” legislative authority to the federal

government by way of statute, see, e.g., Cal. Gov’t Code § 111,

cited in Paul v. United States, 371 U.S. 245, 266 n.33 (1963); see

also McPherson, 146 U.S. at 29-32 (citing numerous state statutes), but none of the cases mentioning that fact that we have

identified address whether a statute (complete with approval of

the Governor) rather than a joint resolution was required. See

infra at 19.

judiciary, nor its convention, but ‘the consent of the

legislatures of the States concerned.’”)4; Act of Feb. 28,

1795, 1 Stat. 424, 3rd Cong., Sess. II, Ch. 36, cited in

Luther v. Borden, 48 U.S. 1, 43 (1849) (authorizing the

President to call forth the militia in response to domestic violence “upon the application of the legislature or of the executive” (as provided in Art. IV, § 4)).

The 1862 opinion of the Attorney General with respect to the legislature’s “consent” to allow for the formation of West Virginia is instructive. In that opinion,

the Attorney General expressly equated the unilateral

authority given to the Legislatures of the states in Article IV, Section 3, Clause 1 to decide whether to “consent” to the creation of new states from within their

territory to two other clauses: the power given to the

legislatures under Article I, Section 3 to “choose the

Senators absolutely;” and the power of the state legislatures under Article II to “direct the manner in which

the electors of President and Vice-President shall be

chosen.” 10 U.S. Op. Atty. Gen. at 428. “[T]hese are

constitutional functions which cannot be exercised by

4 The Attorney General was of the view that the new State of

West Virginia could not be formed based on the consent of a “legislature” convened only in the counties that refused to secede

from the union, but that the consent of the legislature of the

whole state was required. The Supreme Court ultimately disagreed and recognized the creation of West Virginia in State of

Virginia v. State of W. Virginia, 78 U.S. 39 (1870). The case of

West Virginia is somewhat sui generis, of course, given the overlapping jurisdictional confusion arising from the attempt by Virginia to secede from the Union, but the Attorney General’s opinion nevertheless confirms that it is the legislature, and not any

other body of state government, which must give consent to the

formation of a new state.

substitute, nor usurped by any other functionary,” the

Attorney General wrote. Id.

A century-old decision of this Court is believed to

have held otherwise with respect to the Elections

Clause. State of Ohio ex rel. Davis v. Hildebrant, 241

U.S. 565 (1916), was decided at the advent of the progressive era and involved one of that era’s signature

reforms, the referendum. The actual holding of the

case centered on an Act of Congress, which purported

to authorize that the “manner” of conducting congressional elections could be set by popular referendum

rather than by the legislature itself, as the text of Article I explicitly provides. Here’s the critical discussion

from that opinion:

Congress, in 1911, in enacting the controlling

law concerning the duties of the states, through

their legislative authority, to deal with the subject of the creation of congressional districts, expressly modified the phraseology of the previous acts relating to that subject by inserting a

clause plainly intended to provide that where,

by the state Constitution and laws, the referendum was treated as part of the legislative

power, the power as thus constituted should be

held and treated to be the state legislative

power for the purpose of creating congressional

districts by law.

Id. at 568 (emphasis added). Accordingly, the case

should rightly be viewed as one involving Congress’s

supervisory power under Article I, § 4 to “make or alter” the time, place, and manner regulations established by the state legislature. Although the Court did

not confront the serious non-delegation and commandeering problems presented by the Act,5 it held that

action by referendum, as authorized by Congress, did

not run afoul of the Article IV Republican Guaranty

Clause. Whether the case can also be interpreted as

holding that the assignment of power in the Elections

Clause to the state legislatures is to be interpreted

more broadly as the legislative power is a lot murkier.

See, e.g., Morley, supra, 109 Nw. U. L. Rev. Online at

143 (“the Hildebrant Court failed to recognize that a

distinct Elections Clause claim existed, and instead

transmuted the plaintiff's claim under that provision

into a nonjusticiable Guarantee Clause argument”).

Two other decisions of this Court are less murky,

however. In Smiley v. Holm, this Court explicitly held

that “the exercise of the authority [given to the Legislature by the Elections Clause] must be in accordance

with the method which the state has prescribed for

legislative enactments.” 285 U.S. at 367. It distinguished the numerous other federal constitutional

provisions assigning unilateral authority to the state

legislatures as involving something other than a lawmaking power—as an “electoral body” when choosing

Senators under article I, § 3 (prior to adoption of the

17th Amendment); as a “ratifying body” in the case of

5 See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495, 529 (1935) (“Congress is not permitted to abdicate or to

transfer to others the essential legislative functions with which

it is thus vested”); New York v. United States, 505 U.S. 144, 166

(1992) (“even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it

lacks the power directly to compel the States to require or prohibit those acts.”).

proposed amendments to the Constitution under article V; or as a ”consenting body,” as in relation to acquisition of lands by the United States under article

1, § 8, cl. 17. Because the Elections Clause, in contrast,

authorized the legislatures to do a quintessentially

lawmaking thing, then the procedural requirements

for ordinary lawmaking contained in the State’s own

constitution, including being subject to gubernatorial

veto, should control, the Court held. 285 U.S. at 367.

There are several problems with the Smiley decision that we believe render it erroneous, or at least

inapplicable to the dispute at issue here. Most importantly, the Court reasoned that because Congress

itself, pursuant to its override authority, could only

“make or alter” time-place-manner restrictions with

the approval of the President (or, if vetoed, by overriding the veto), then the same must be true for the state

legislatures’ authority as well. Id. But the critical

phrase which compels that conclusion for congressional override, “by law,” does not exist in the clause

granting authority to the state legislatures. The Smiley Court held that its appearance in the latter clause

implied a similar constraint in the former, but the opposite is true as a textual matter. That the “by law”

constraint is imposed on Congress but not on the state

legislatures strongly indicates that the legislatures

were given authority to act unilaterally, just as they

were given authority to act unilaterally in the half

dozen other instances where the Constitution uses

nearly identical phrasing.

Another significant shortcoming of the Smiley decision is that it does not address at all the compelling

language in McPherson asserting that when acting

pursuant to the parallel Electors Clause (which, by

authorizing the state legislature to direct the ”manner” of choosing presidential electors, is every bit as

much an exercise of “lawmaking” authority, under the

Smiley Court’s reasoning, as that Court held to be authorized by the Elections Clause), the legislature’s authority is plenary and cannot be constrained even by

the State’s own constitution. See supra, pp. 3-4.

Third, the Smiley Court also found compelling that

through much of the nation’s history, the state legislatures had submitted their time-place-manner election bills to their governors for approval. Smiley, 285

U.S. at 369-70; see also Hayward H. Smith, History of

the Article II Independent State Legislature Doctrine,

29 Fla. St. Univ. L. Rev. 731, 759-61 (2001) (noting

that legislative acts in 1788 by Massachusetts and

New York were submitted to the Governor (in Massachusetts) and the Council of Revision (in New York)

for approval). That historical evidence is much less

compelling than the Smiley Court believed, however.

When the New York Legislature’s bill “prescribing the

manner of holding Elections for Senators” was vetoed

by the Council of Revision and the attempt to override

the veto was unsuccessful, the New York Legislature

simply appointed senators by concurrent resolution.

Smith, History, supra, at 761 (citing 3 THE DOCUMENTARY HISTORY OF THE FIRST FEDERAL ELECTIONS,

1788-90, at 513 (Merrill Jensen et al. eds., 1976).

Moreover, the states would likely conform their federal election regulations to their state election regulations as a matter of convenience. Cf. Federalist 59, at

363 (Rossiter, ed., 1961) (recognizing that the assignment “in the first instance, to the local administrators” would, “in ordinary cases … be both more convenient and more satisfactory”). Because the latter

(an exercise of state constitutional authority) would

require the Governor’s signature in the examples

cited by the Smiley Court, it should not be surprising

that the federal regulations contained in the same bill,

the enactment of which was pursuant to federal constitutional authority, would be submitted to the Governor as well. But that tells us nothing about the necessity of doing so, only the convenience of doing so.

“The prescription of the written law cannot be overthrown because the states have laterally exercised, in

a particular way, a power which they might have exercised in some other way.” McPherson, 146 U.S. at

36.

Fourth, if the State constitutions are to have any

role at all, it would be in determining just what the

“legislature” of the State is. The Minnesota Constitution at issue in Smiley was at the time (and remains)

rather explicit and clear: “The legislature consists of

the senate and house of representatives.” Minn.

Const. art. IV, § 1. Although the Smiley Court mentioned this provision in passing, it focused on another

provision that gave a veto power to the Governor of

the State. Id. art. IV, § 11. But that clause does not

identify the Governor as a part of “the legislature”; he

is instead identified as an “Executive officer.” Id. art.

V, § 1.

To be sure, a state constitution might well define

“legislature” differently. Nebraska, for example, defines it as “one chamber.” Neb. Const. art. III, § 1. Although the people of Nebraska have, since 1912, reserved to themselves the power to propose and enact

laws directly and to approve or reject laws adopted by

the legislature (“initiative” and “referendum), id.,

they don’t thereby become part of the “one chamber”

legislature.

It might be contended that state constitutional

provisions requiring the submission of bills to the

Governor for approval or veto make the Governor a

part of the legislative process, just as the “King-inParliament” is (or at least was) treated as a third component of the English legislature. See Matthew Hale,

THE HISTORY OF THE COMMON LAW OF ENGLAND 2

(London, J. Nutt 1713)6 (describing that the “Statute

Laws, or Acts of Parliament,” are “a Tripartite Indenture, between the King, the Lords, and the Commons;

for without the concurrent Consent of all those Three

Parts of the Legislature, no such Law is, or can be

made.”); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 462

(1793) (Wilson, J.) (“The constituent parts of the Parliament are the King’s majesty, the Lord’s Spiritual,

the Lord’s Temporal, and the Commons”). But the medieval role of English monarchs as a third component

of the English Parliament is distinctly different from

the role of American presidents at the national level

or governors at the state level. It is much more accurate to describe the latter two cases as providing a limited “check” on the legislature, not as actually being a

part of the legislature. See Federalist 69, at 417 (“The

qualified negative of the President differs widely from

this absolute negative of the British sovereign”); Federalist 73, at 442-43 (noting that the qualified veto

“establishes a salutary check upon the legislative

body,” both to protect the executive branch against encroachments by the legislature and to protect the community against the effects of faction); see also U.S.

Const. Art. I, § 1 (“All legislative Powers herein

granted shall be vested in a Congress of the United

6 Available at http://perma.cc/9T49-HRQB.

States, which shall consist of a Senate and House of

Representatives”).

Fifth, Smiley’s holding, to the extent it treats the

legislatures of the states as exercising reserved powers defined by the state constitutions, is simply incompatible with this Court’s subsequent decision in Term

Limits v. Thornton, 514 U.S. 779 (1995). In that case,

this Court rejected attempts by the people of Arkansas

to impose term limits on their own members of Congress, holding that the power to add qualifications for

federal office was “not within the ‘original powers’ of

the States, and thus not reserved to the States by the

Tenth Amendment.” Id. at 800. The same is true of the

Elections (and Electors) Clauses. The power to set the

“time, place, or manner” of elections for federal congressional office, or to direct the “manner” of choosing

the electors for the federal office of the President, is no

part of the original powers of the states.

Sixth, Smiley overlooked numerous examples of

State courts and of Congress itself recognizing that

the plenary power afforded to the state Legislatures

by Article I, § 4 could not be constrained by the state

constitution. See supra at 7-9.

As problematic as the decisions in Smiley and Hildebrant are, the Court’s decision in Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 576

U.S. 787 (2015), was a major leap beyond those holdings. Instead of merely allowing that a state constitution could require an additional step before the legislature could act (subjecting legislative bills to a referendum in Hildebrant or to a governor’s veto in Smiley), Arizona allowed the “legislative authority” of the

people to eliminate the “Legislature” of the state from

the “time, place, and manner” process altogether. Id.

at 793. That holding simply cannot be squared with

the text of Article I’s Elections Clause (or Article II’s

Electors Clause), which quite unambiguously assign

the power to set the “manner” for federal elections to

the “legislature” of the state, not the people exercising

their reserved “legislative authority” or anyone else.

Indeed, when the framers wanted to assign power to

the people of the state or some other entity rather

than the “legislature,” they knew how to do so. See

U.S. Const. Art. I, § 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States”); Art. I,

§ 3, cl. 2 (“if Vacancies [in the Senate] happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make

temporary Appointments until the next Meeting of

the Legislature”); Art. IV, § 4 (“The United States …

shall protect each [State] against Invasion; and on Application of the Legislature, or of the Executive (when

the Legislature cannot be convened) against domestic

Violence”).

In sum, the several decisions holding (or appearing

to hold) that the Constitution’s explicit assignment of

authority to the “Legislatures” of the States must instead be read as an assignment to the “legislative authority” of the state, even when that is not the actual

“Legislature,” simply cannot be sustained by the Constitution’s controlling text. Those decisions should

therefore be revisited.

III. At the Very Least, Hildebrant, Smiley, and

Arizona Should be Cabined to the Methods

for Lawmaking Contained in State Constitutions, Not to Substantive Constraints

Contained Therein.

This case moves the needle even further from the

explicit text of Article I (and the parallel text in Article

II). There is simply no plausible argument that the judicial branch of the states are in any way exercising a

concurrent legislative authority (as was the case in

Smiley with respect to a gubernatorial veto), or a reserved legislative authority (as was the case in Hildebrant with respect to a referendum power), or even a

substitute legislative authority (as was the case in Arizona with respect to a separate reapportionment

commission). Instead, what the North Carolina Supreme Court did in the case below is substitute itself,

in its exercise of judicial authority, for the “legislature” of the state, in its exercise of legislative authority, as the body assigned to determine the “time, place,

and manner” for conducting federal elections. That removes the power over elections from the most accountable branch of government (the legislature) to the

least accountable branch of government (the judiciary), contrary to both the explicit language and deliberate democratic intent of the Constitution and its

framers. Cf., e.g., 1 MAX FARRAND, THE RECORDS OF

THE FEDERAL CONVENTION OF 1787, at 48 (1911)

(statement by James Mason supporting election by

the people for members of the House of Representatives, which “was to be the grand depository of the

democratic principle of the Govt”).

Thus, even if the holdings of Hildebrant, Smiley,

and Arizona are not to be revisited at this time, those

cases should at the very least be cabined to address

only the method by which the lawmaking power of the

legislature is exercised under the constitutions of the

several states, not other substantive constrains (particularly broad, amorphous constraints) contained in

those state constitutions. Otherwise, the power given

to the “legislatures” of the states by the Elections and

Electors Clauses would be instead exercised by the judicial branch of the states, using provisions of state

constitutions to constrain the powers delegated to the

state legislatures by the federal constitution. Such a

result is simply not compatible with the actual text of

the Elections and Electors Clauses.

CONCLUSION

The Elections Clause of Art. I, § 4, cl. 1 (and the

parallel Electors Clause of Art. II, § 1, cl. 2) unambiguously assign to the “Legislatures” of the States the

power to determine the manner for conducting federal

elections. That power is “plenary,” and because it is

conferred by the federal constitution, it cannot be constrained by anything in state law or state constitutions

to the contrary. The decision of the North Carolina Supreme Court below, substituting is “manner” of congressional apportionment for the “manner” adopted

by the legislature of the State, should therefore be reversed.

September 2022

Respectfully submitted,