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,
v.
REBECCA HARPER, ET AL.,
___________
Respondents.
On Writ of Certiorari to the
Supreme Court of North Carolina
___________
BRIEF OF AMICUS CURIAE CONFERENCE OF
CHIEF JUSTICES
IN SUPPORT OF NEITHER PARTY
___________
EVAN CAMINKER
UNIV. OF MICHIGAN LAW
SCHOOL**
701 South State Street
Ann Arbor, MI 48109
(734) 763-5221
**University affiliation
provided for
identification purposes
only
September 6, 2022
CARTER G. PHILLIPS*
VIRGINIA A. SEITZ
KATHLEEN M. MUELLER
SIDLEY AUSTIN LLP
1501 K Street, NW
Washington, DC 20005
(202) 736-8000
cphillips@sidley.com
Counsel for Amicus Curiae
* Counsel of Record
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
iii
INTEREST OF THE AMICUS CURIAE .............
1
SUMMARY OF ARGUMENT ..............................
2
ARGUMENT .........................................................
6
I. THE ELECTIONS CLAUSE DOES NOT
PROHIBIT STATE COURTS FROM REVIEWING STATE LAWS REGULATING
CONGRESSIONAL ELECTIONS ................
6
A. The Elections Clause Does Not Displace
State Constitutional Rules Governing
State Regulations of Federal Elections ...
7
B. The Elections Clause Does Not Deprive
State Legislatures of Their Authority to
Provide for State Court Judicial Review
of Congressional Election Regimes as
Part of Their Prescribed Time, Place, and
Manner Regulations ................................
15
II. ANY FEDERAL COURT REVIEW OF
STATE COURT DECISIONS INTERPRETING STATE LAWS GOVERNING FEDERAL ELECTIONS MUST BE TIGHTLY
CIRCUMSCRIBED AND APPLY CLEAR
LIMITS ..........................................................
18
A. Because the Constitution Assigns Final
Decisions about State Law to State
Courts, Any Federal Judicial Review Under the Elections Clause Must Be Highly
Deferential................................................
18
B. State Courts Using Traditional Judicial
Approaches When Interpreting State
Laws and Conducting Judicial Review
(i)
ii
Under State Constitutions Are Engaged
in Judicial, Not Legislative, Acts ............
20
C. Any Federal Judicial Review of State Decisions About State Election Law Should
Involve a Clear and Workable Standard
To Prevent Unnecessary Intrusions on
State Sovereignty .....................................
23
CONCLUSION .....................................................
28
CASES
iii
TABLE OF AUTHORITIES
Page
Abrams v. Johnson, 521 U.S. 74 (1997) ......
17
Anderson v. Celebrezze, 460 U.S. 780
(1983) .........................................................
17
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787 (2015) .. 3, 11, 14
Bush v. Gore, 531 U.S. 98 (2000) .................
20
Carson v. Simon, 978 F.3d 1051 (8th Cir.
2020) ..........................................................
27
Chavez v. Brewer, 214 P.3d 397 (Ariz. Ct.
App. 2009) .................................................
26
Erie R.R. v. Tompkins, 304 U.S. 64 (1938) ..
19
Green v. Lessee of Neal, 31 U.S. (6 Pet.) 291
(1832) ......................................................... 4, 19
Gregory v. Ashcroft, 501 U.S. 452 (1991)..... 2, 7
Growe v. Emison, 507 U.S. 25 (1993) ...... 3, 15, 17
Highland Farms Dairy, Inc. v. Agnew, 300
U.S. 608 (1937) ..........................................
7
Howlett v. Rose, 496 U.S. 356 (1990) ........... 8, 9
Ind. ex rel. Anderson v. Brand, 303 U.S. 95
(1938) .........................................................
20
Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803) ......................................................... 2, 16
M.J. Farms, Ltd. v. Exxon Mobil Corp., 998
So. 2d 16 (La. 2008), amended on
reh’g (Sept. 19, 2008).................................
21
Murdock v. City of Memphis, 87 U.S. (20
Wall.) 590 (1874) .......................................
19
People v. Hall, 215 N.W.2d 166 (Mich.
1974) ..........................................................
22
The Pocket Veto Case, 279 U.S. 655 (1929) .
10
Reynolds v. Sims, 377 U.S. 533 (1964) ........
17
Rucho v. Common Cause, 139 S. Ct. 2484
(2019) .............................................. 3, 4, 14, 17
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010) ............ 25, 26
iv
TABLE OF AUTHORITIES – continued
Page
Smiley v. Holm, 285 U.S. 355 (1932) ... 3, 9, 13, 14
State v. Berger, 781 S.E.2d 248 (N.C.
2016) ..........................................................
16
State v. Sutherland, 106, 804 P.2d 970 (Kan.
1991) ..........................................................
22
State v. Webb, 398 So. 2d 820 (Fla. 1981) ...
21
Vanhorne’s Lessee v. Dorrance, 2 U.S. (2
Dall.) 304 (C.C.P. 1795) ............................
7
Walker v. Martin, 562 U.S. 307 (2011) ........
20
Whitman v. Am. Trucking Ass’ns, Inc., 531
U.S. 457 (2001) ..........................................
18
CONSTITUTION AND STATUTES
U.S. Const. amend. X ................................... 2, 8
U.S. Const. art. I, § 3, cl. 6 ...........................
10
U.S. Const. art. I, § 4, cl. 1 ........................ 2, 6, 11
U.S. Const. art. VI, cl. 2 ...............................
8
1 Pa. Cons. Stat. § 1921(a) ...........................
22
N.C. Gen. Stat. § 1-267.1(a) .........................
16
N.C. Gen. Stat. § 120-2.3 .............................
16
N.C. Gen. Stat. § 120-2.4(a) .........................
18
N.C. Gen. Stat. § 120-2.4(a1) ....................... 16, 18
Tex. Gov’t Code Ann. § 311.023 ...................
22
SCHOLARLY AUTHORITIES
Vikram David Amar & Akhil Reed Amar,
Eradicating Bush-League Arguments
Root and Branch: The Article II Independent-State-Legislature Notion and Related
Rubbish, 2021 S. Ct. Rev. 1 ......................
9
v
TABLE OF AUTHORITIES – continued
Page
Jessica Bulman-Pozen & Miriam Seifter,
The Democracy Principle in State Constitutions, 119 Mich. L. Rev. 859 (2021) .......
12
Martha J. Dragich, State Constitutional Restrictions on Legislative Procedure: Rethinking the Analysis of Original Purpose,
Single Subject, and Clear Title Challenges, 38 Harv. J. on Legis. 103
(2001) .........................................................
25
Roland G. Fryer Jr. and Richard Holden,
Measuring the Compactness of political
Redistricting Plans, 54 J. Law & Econ 493
(2011) .........................................................
24
John Harrison, Severability, Remedies, and
Constitutional Adjudication, 83 Geo.
Wash. L. Rev. 56 (2014) ............................
17
Linda Ross Meyer, Connecticut’s AntiOriginalist Constitutions and its Independent Courts, 40 Quinnipiac L. Rev.
(forthcoming 2022) ....................................
22
William E. Nelson, Changing Conceptions of
Judicial Review: The Evolution of Constitutional Theory in the States, 1790-1860,
120 U. Pa. L. Rev. 1166 (1972) .................
8
Richard H. Pildes, Judging ‘New Law’ in
Election Disputes, 29 Fla. St. U. L. Rev.
691 (2002) .................................................. 21, 23
Saikrishna B. Prakash & John C. Yoo, The
Origins of Judicial Review, 70 U. Chi. L.
Rev. 887 (2003). .........................................
8
Hayward H. Smith, Revisiting the History of
the Independent State Legislature Doctrine¸ 53 St. Mary’s L.J. 445 (2022) .......... 9, 10
vi
TABLE OF AUTHORITIES – continued
Page
Jeffrey S. Sutton et al., 51 Imperfect Solutions: State and Federal Judges Consider
the Role of State Constitutions in Rights
Innovation, 103 Judicature 33 (2019) ......
22
Robert A. Schapiro, Article II as Interpretive
Theory: Bush v. Gore and the Retreat from
Erie, 34 Loyola U. Chi. L.J. 89 (2002) ......
21
Michael Weingartner, Liquidating the Independent State Legislature Theory, 46
Harv. J.L. & Pub. Pol’y (forthcoming
2023), draft available at https://bit.ly/3LyWSqq.............................................. 9, 10, 11, 13
OTHER AUTHORITIES
Page
The Federalist No. 78 (Alexander
Hamilton) ..................................................
8
Jeffrey S. Sutton, 51 Imperfect Solutions:
States and the Making of American Constitutional
Law
(Oxford
Press
2018) ...................................................... passim
INTEREST OF THE AMICUS CURIAE1
Founded in 1949, amicus curiae Conference of Chief
Justices (the “Conference”) is comprised of the Chief
Justices or Chief Judges of the courts of last resort in
all 50 states, the District of Columbia, the Commonwealths of Puerto Rico and the Northern Mariana Islands, and the Territories of American Samoa, Guam,
and the Virgin Islands. For over 70 years, the Conference has been a leading national voice on important
issues concerning the administration of justice in state
courts, the operation of state courts and judicial systems, and the role of state courts in our federal system.
The Conference files briefs amicus curiae only when
critical interests of the state courts are at stake. This
case involves the authority of state courts to interpret
and review the constitutionality of state laws regulating the time, place, and manner of federal elections,
and this Court’s resolution may determine the constraints, if any, that the U.S. Constitution places on
such state-court review. The Conference has a strong
interest in the States’ sovereign right to determine the
structure of their state governments, including the authority of state courts and the role of state constitutions within that structure. The Conference recognizes
that the States, including state courts, are limited by
the U.S. Constitution, and the Conference has a significant interest in ensuring that those limits are
properly interpreted to respect the independent sovereignty of the States; that state courts are the ultimate
1 No counsel for either party authored this brief in whole or in
part. No person or entity, other than amicus curiae or its counsel,
contributed to the preparation of submission of this brief. Both
petitioners and respondents consented to the filing of this brief.
(1)
2
interpreters of the meaning of state law; and that
power not expressly assigned to the federal government is “reserved to the States respectively, or to the
people.” U.S. Const. amend. X.
The Conference also has a keen interest in obtaining
clear guidance from this Court about whether and to
what extent the Elections Clause, U.S. Const. art. I, §
4, cl. 1, affects state courts’ capacity and responsibility
to interpret state laws regulating federal elections and
to engage in judicial review based on state constitutional provisions.
This brief has been reviewed and approved by the
Amicus Committee of the Conference, chaired by the
Chief Justice of Kentucky, and composed of the current or former Chief Justices of Delaware, Indiana,
Missouri, North Dakota, Texas, and Utah. The Conference does not take a position on the proper disposition
of this case. Instead, it supports an interpretation of
the Elections Clause that reflects the proper role of
state courts in our federal system.
SUMMARY OF ARGUMENT
The Elections Clause does not bar state court review
of state laws governing federal elections under state
constitutional provisions.
I.
The U.S. Constitution provides each State with authority over “the structure of its government.” Gregory
v. Ashcroft, 501 U.S. 452, 460 (1991). Both before and
after the Framing of the U.S. Constitution, the States
authorized judicial review under state charters; and,
at the time of the Framing, that state practice was
adopted in the U.S. Constitution, see Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and in numerous
state constitutions. See Jeffrey S. Sutton, 51 Imperfect
3
Solutions: States and the Making of American Constitutional Law 13 (Oxford Press 2018). Further, many
state constitutions from the Founding era contained
provisions regulating elections. This historical context
strongly supports state court review of state election
laws under state constitutions. And while the text of
the Elections Clause requires that state legislatures
prescribe the laws governing federal elections, it does
not otherwise displace the States’ established authority to determine the final content of their election laws,
including through normal judicial review for constitutionality.
This conclusion is confirmed by the rest of the Elections Clause: the Clause specifies that Congress can
override state election laws governing federal elections, yet Congress’s enactments are presumed to remain subject to constitutional review. State election
laws likewise remain subject to state court review under the state (and federal) constitutions.
State judicial review does not derogate from the primacy of the state legislature’s role. The legislature enacts state election laws and often plays a significant
role in shaping the state’s constitution. And this
Court’s precedent has explicitly and implicitly authorized significant checks on legislative power to make
election laws, including a gubernatorial veto (see Smiley v. Holm, 285 U.S. 355 (1932)), state judicial review
(Rucho v. Common Cause, 139 S. Ct. 2484 (2019)), judicial remedial authority (Growe v. Emison, 507 U.S.
25 (1993)), and state plebiscites (Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787
(2015)).
Even if this Court were to interpret the Elections
Clause to insulate state legislatures from unwelcome
state court review, the Clause plainly would not prohibit the legislature from prescribing laws that include
4
such review. That is what the North Carolina General
Assembly did here: It prescribed state court review for
redistricting laws under the state constitution and established the state court’s remedial authority, including interim redistricting plans. This legislative decision cannot be characterized as unconstitutional delegation. Judicial review is a check on lawmaking, but it
is an exercise of judicial power, not lawmaking power;
and it was expressly authorized by the legislature.
This Court appears to have so recognized in Rucho,
when it emphasized that state judicial review would
provide a check on partisan gerrymandering in the
States. 139 S. Ct. at 2506-07. And state judicial review
under a state constitution intrudes no more on a state
legislature’s prerogatives than does review under the
U.S. Constitution, which all agree the Clause contemplates. Moreover, the state court’s authority to impose
a remedial plan was also prescribed by the legislature;
the court’s authority was confined to interim plans and
constituted an appropriate exercise of judicial, not legislative, power under this Court’s precedents.
II.
Even if this Court determines that the Elections
Clause authorizes federal judicial review of state court
decisions about state elections law, such review should
be rare, highly deferential, and under a clear standard
to avoid undue intrusion on the state courts’ prerogatives. The Constitution assigns the final determination
of state law to state courts, see Green v. Lessee of Neal,
31 U.S. (6 Pet.) 291, 297 (1832). This Court has only
rarely intruded on state courts’ decisions interpreting
state law. So long as the state court is using traditional
tools of judicial decision making, its decision should be
final unless it is not plausibly defensible under that
approach and itself infringes federal constitutional interests.
5
Like their federal counterparts, state courts approach judicial decision making using a set of established tools. While they may not always use precisely
the same interpretive frameworks as do federal
courts—e.g., they may use different resources in determining the legislators’ or Framers’ intent in drafting a
law or constitutional provision—they nonetheless are
engaged in judicial review, not legislative acts, when
they determine the content and constitutionality of
state laws. The Elections Clause does not eliminate
this consequence of our federal system, and it does not
authorize the federal courts to impose their approaches or outcomes on state courts’ interpretation of
state laws and state constitutions. Any federal review
therefore must be exceedingly deferential.
The Conference is equally focused on the need for
clear guidance about any constraints imposed on state
courts by federal judicial review under the Elections
Clause. Absent a clear standard, state courts will be
unsure whether to apply otherwise applicable state
laws and constitutional provisions, a consequence
damaging to state sovereignty and judicial independence.
This concern is not addressed by the suggestion that
state court judicial review is prohibited by the Elections Clause if it involves state constitutional provisions that are deemed too general or that impose substantive rather than procedural requirements. Such
formulations do not provide state judges (or federal
judges reviewing their decisions) with sufficient clarity
to determine which constitutional provisions may be
enforced, and the uncertainty will lead to disruptive
litigation as state courts attempt to discern in expedited election-related proceedings which provisions
they must disregard. Moreover, state courts have con-
6
strued and developed precedent under so-called general constitutional provisions for decades, just as federal courts have done. Nothing in the Elections Clause
suggests that state judicial review—unlike federal judicial review—should be cabined in this manner.
The Elections Clause does not affect States’ decisions to authorize judicial review of state laws, including under state constitutions. At a minimum, the Elections Clause should not be interpreted to authorize
federal supervision of state court decisions about the
content of state law except under a clear and highly
deferential standard that respects the role of States
and state courts in our federal system.
ARGUMENT
The Elections Clause of the U.S. Constitution provides that the “Times, Places and Manner of holding
Elections for Senators and Representatives, shall be
prescribed in each State by the Legislature thereof.”
U.S. Const. art. I, § 4, cl. 1. At issue here is whether,
and if so, to what extent, the Elections Clause ousts
state courts from their traditional role in reviewing
election laws under state constitutions.
I. THE ELECTIONS CLAUSE DOES NOT PROHIBIT STATE COURTS FROM REVIEWING
STATE LAWS REGULATING CONGRESSIONAL ELECTIONS
A state court may properly assess the state legislature’s voting rules (including districting) for congressional elections under the state constitution for two
reasons. As a general matter, the Elections Clause
does not override States’ sovereign choices about how
to internally distribute and constrain authority to
shape federal election regulations. And more specifically, the Elections Clause does not preclude States
7
and state legislatures from providing a role for courts
as part of their prescribed time, place, and manner
regulations.
A. The Elections Clause Does Not Displace
State Constitutional Rules Governing
State Regulations of Federal Elections
The Constitution’s guarantee of state sovereignty
means that each State retains the ability to choose
“the structure of its government,” Gregory, 501 U.S. at
460, including the role and authority of state courts.
“Through the structure of its government, and the
character of those who exercise government authority,
a State defines itself as a sovereign.” Id. See also Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612
(1937) (“How power shall be distributed by a state
among its governmental organs is commonly, if not always, a question for the state itself.”).
Since the Framing, States have adopted constitutions that create state legislatures and define those
legislatures’ powers and that set forth the supreme
law of the State. As this Court has explained, all legislatures are “Creatures of the Constitution” and “owe
their existence to” it; and therefore “all their acts must
be conformable to it, or else they will be void.”
Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 308
(C.C.P. 1795) (Patterson, J.).
Judicial review—review of a legislature’s act for its
compliance with other laws and the constitution—preceded the Founding and is embedded in the U.S. Constitution and numerous state constitutions of the
Founding era. “The first use of the power occurred in
the state courts and arose under the state constitutions.” J. Sutton, 51 Imperfect Solutions, supra at 13
(citing Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. Chi. L. Rev. 887, 929-
8
39 (2003)). “State courts in at least seven states invalidated state or local laws under their State constitutions before 1787.” Id.
Thus, the Framers surely recognized that in a republican government, the judiciary would construe and
constrain the legislature’s enactments. See The Federalist No. 78 (Alexander Hamilton). Scholarly authority
confirms “that the state judiciaries had asserted, and
were properly endowed with, the power to refuse to enforce unconstitutional statutes.” S.B. Prakash & J.
Yoo, 70 U. Chi. L. Rev. at 933-35. See also William E.
Nelson, Changing Conceptions of Judicial Review: The
Evolution of Constitutional Theory in the States, 17901860, 120 U. Pa. L. Rev. 1166, 1169-70 (1972).
The Elections Clause requires that state legislatures
enact state laws governing federal elections and authorizes Congress to override such state laws. However, the Clause does not otherwise displace the
States’ authority to structure their governments, including the process for determining state law. The
States’ power to authorize state courts to interpret all
state statutes definitively and to determine whether
those statutes comply with state constitutions is neither a “power[] … delegated to the United States by
the Constitution, nor [a power] prohibited to the
States,” U.S. Const., amend. X. Thus, the States’ power
to structure their governments to include judicial review is also protected by the Tenth Amendment.2
2 Petitioners’ claim that the Elections Clause overrides the
States’ freedom to subject all state statutes to judicial review because elections statutes fulfill a “federal function,” see Pet. Brief
22-23, ignores their related claim that the Supremacy Clause,
U.S. Const. art. VI, cl. 2, also vests the “duty” of applying federal
law in state Judges. Pet. Brief 19. This Court has made clear that
this duty applies only where the State chooses to “create a court
competent to hear the case in which the federal claim is presented.” Howlett v. Rose, 496 U.S. 356, 372 (1990). Put differently,
9
Framing-era history confirms that the Framers did
not create an exception to state constitutional supremacy, including the State’s power to establish judicial
review, in the Elections Clause. “Most of the state constitutions adopted between Independence and the
adoption of the United States Constitution purported
to regulate the selection of delegates to Congress.”
Hayward H. Smith, Revisiting the History of the Independent State Legislature Doctrine¸ 53 St. Mary’s L.J.
445, 479 (2022) (providing examples). Thus, at the
Framing, state constitutional restrictions on state legislatures were “well known.” Smiley, 285 U.S. at 368.
And four of the six state constitutions adopted or revised right after the Framing addressed elections;
more than half of the eleven states that ratified the
Constitution in 1787 and 1788 had state constitutions
that regulated state legislatures with respect to elections.3 Finally, since the Civil War, state courts have
routinely reviewed the lawfulness of state election
laws, including those governing federal elections, for
consistency with state constitutions. Michael
Weingartner, Liquidating the Independent State Legislature Theory, 46 Harv. J.L. & Pub. Pol’y (draft at
40-43) (forthcoming 2023), draft available at
“federal law takes the state courts as it finds them” with respect
to valid and neutral state jurisdictional rules. Id. The Elections
Clause’s “federal duty” takes state legislatures as their state constitutions design them.
3 Hayward H. Smith, , Revisiting the History, 53 St. Mary’s L.J.
at 456, 488 (Delaware Constitution of 1792 explicitly referred to
federal elections; and the several other state constitutions
adopted between 1789 and 1803 “were understood by the Founding generation to apply to all elections held in the state, including
federal elections”); Vikram David Amar & Akhil Reed Amar,
Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish,
2021 S. Ct. Rev. 1, 22-23 & n.59, 24.
10
https://bit.ly/3LyWSqq. This “long settled and established practice” should have “great weight in a proper
interpretation of constitutional provisions.” The Pocket
Veto Case, 279 U.S. 655, 689 (1929).
In this setting, the Framers’ decision to assign to the
state legislature the task of prescribing state laws governing congressional elections cannot reasonably be
read to eliminate state-court judicial review, including
review under state constitutions. “[U]nder the Articles
of Confederation, it was understood that legislatures
were normal legislatures, subject to substantive regulation by state constitutions.” H. Smith, Revisiting the
History, 53 St. Mary’s L.J. at 482. Similarly, the U.S.
Constitution protects the States’ authority to structure
their governments. The historical context reveals that
state constitutions were the supreme law of the States;
that judicial review by state courts, including for constitutionality, was well established at the Framing;
and that rules governing state and federal elections
routinely appeared in state constitutions. See M.
Weingartner, Liquidating the Independent State Legislature Theory, 46 Harv. J.L. & Pub. Pol’y (draft at 3637) (besides Delaware’s congressional-specific provision, other early constitution’s “provisions applied to
both state and federal elections alike; nearly every
state constitution set out voter qualifications, and
most included express protections for the right to vote
or guarantees of free and equal elections”) (footnote
omitted).
The Elections Clause’s structure further refutes the
suggestion that the textual reference to a State’s “legislature” displaces this foundational understanding of
federalism and overcomes the clear import of pre- and
post-Framing history. When the Framers intended to
give unreviewable authority to a specific branch of government, they did so clearly. See, e.g., U.S. Const. art.
11
I, § 3, cl. 6 (the Senate has the “sole power to try all
Impeachments”). The Elections Clause does not give
sole power to state legislatures to prescribe the
“Times, Places and Manner of holding Elections for
Senators and Representatives”; it also authorizes
“Congress” to “make or alter such Regulations.” U.S.
Const. art. I, § 4, cl. 1. All agree that the Elections
Clause’s reference to “Congress” does not preclude judicial review of Congress’s regulation of federal elections. Thus, the reference to the state “Legislature”
likewise should not be read to preclude state judicial
review of the laws enacted by state legislatures.
Moreover, the Constitutional Convention contains
no suggestion that the Framers intended to eliminate
the State’s pre-Framing authority to internally allocate power to determine congressional election regimes and instead to free legislatures from all state
constitutional rules. The Convention debates focused
on ensuring that state legislatures were checked and
constrained given significant distrust of their susceptibility to the influence of self-interest or political factions. See Ariz. State Legislature, 576 U.S. at 815 (“The
Clause was also intended to act as a safeguard against
manipulation of electoral rules by politicians and factions in the States to entrench themselves or place
their interests over those of the electorate.”).
Given these concerns and the provision for congressional override, “it is hard to imagine the Framers intended the Elections Clause to eliminate this important check on state legislatures.” M. Weingartner,
Liquidating the Independent State Legislature Theory,
46 Harv. J.L. & Pub. Pol’y (draft at 32-33), especially
as the Framers “had faith in the state courts as protectors of liberty. They created one Supreme Court but
left it to Congress to decide whether to create ‘inferior’
courts, which implies that they had little doubt that
12
state courts would enforce federal and state constitutional rights.” J. Sutton, 51 Imperfect Solutions, supra
at 180.
The responsive claim that the Elections Clause forecloses judicial review because it was intended to ensure that “the rules governing [federal] elections are
determined by ‘the will of the people,’” see Pet. Brief
20, is mistaken. Even assuming the Framers wanted
to ensure that regulations of congressional elections
reflect the popular will, the people of the States, both
at the Framing and now, have established state constitutions that reflect their determination that their
own popular will in this context is best mediated
through a more complex set of intragovernmental relationships. See Jessica Bulman-Pozen & Miriam
Seifter, The Democracy Principle in State Constitutions, 119 Mich. L. Rev. 859, 880 (2021) (“popular sovereignty is a defining principle of state constitutions,”
which “seek to reconcile popular sovereignty with representative democracy”). These intragovernmental
checks include gubernatorial vetoes (upheld in Smiley)
and judicial review under state constitutional provisions (upheld in Rucho) and more recently plebiscites
(upheld in Arizona State Legislature). If the constitutional norm purporting to justify legislative “primacy”
is the people’s ability to influence congressional election schemes, that norm favors letting the people decide how they want to guide or constrain state legislative decisions through judicial review based on their
state constitutions, which also reflect (then and now)
a form of popular will.4
4 This is especially so given that the overwhelming majority of
States have made their courts directly accountable to the people
through partisan or nonpartisan elections, reelections, retention
elections, or recall elections, and have made their constitutional
rulings more readily susceptible to overriding amendments. See
13
This Court’s precedents support the view that the
Elections Clause does not displace judicial review of
state election laws governing congressional elections.
In Smiley, this Court held that “there is nothing in article 1, section 4, which precludes a state from providing that legislative action in districting the state for
congressional elections shall be subject to the veto
power of the Governor as in other cases of the exercise
of the lawmaking power,” 285 U.S. at 372-73, emphasizing that the Elections Clause does not alter a State’s
constitutional rules for lawmaking. The Court relied
on the veto provision’s consistency with historic practice, explaining that the governor’s veto was a “well
known” check on legislatures at the time of the Framing and therefore “cannot be regarded as repugnant to
the grant of legislative authority,” id. at 368—even
though significantly fewer States at the Framing provided for gubernatorial veto (two) than provided for
state court review of federal elections regulations. See
supra at 9.5 Overall, the Court could “find no suggestion in the federal constitutional provision of an attempt to endow the Legislature of the state with power
to enact laws in any manner other than that in which
J. Sutton, 51 Imperfect Solutions, supra at 18 (“people at the state
level also have other remedies at their disposal: an easier constitutional amendment process and, for richer or poorer, judicial
elections”).
5 The suggestion that Smiley endorsed only constitutional
checks on procedure but not substance, Pet. Brief 24-25, ignores
the historical practice that informed the Court’s conclusion. Five
Framing-era state constitutions addressed the substantive issue
of whether votes should be registered by ballot or voice. “This was
one of the most important, and most contested, issues of election
administration in the post-Founding era, with many concerned
about the potential for fraud in ballot voting and for undue influence in voice voting.” M. Weingartner, Liquidating the Independent State Legislature Theory, 46 Harv. J.L. & Pub. Pol’y (draft at
36).
14
the Constitution of the state has provided that laws
shall be enacted.” 285 U.S. at 367-68.
The Court expanded upon that point in Arizona
State Legislature, 576 U.S. at 817-18, saying: “Nothing
in th[e] [Elections] Clause instructs … that a state legislature may prescribe regulations on the time, place,
and manner of holding federal elections in defiance of
provisions of the State’s constitution.”6
Most recently, in Rucho, 139 S. Ct. 2484, this Court
acknowledged that a State may authorize its courts to
review state laws governing federal elections to determine compliance with state constitutional provisions
even though federal courts may not invoke the U.S.
Constitution to cabin political gerrymandering. The
Court explained that it did “not condone excessive partisan gerrymandering,” and that such complaints
would not go unheard: “The States, for example, are
actively addressing the issue on a number of fronts,”
including in “[p]rovisions in … state constitutions
[which] can provide standards and guidance for state
courts to apply” in redistricting cases. Id. at 2506-07.
To illustrate, the Court noted that “the Supreme Court
of Florida struck down that State’s congressional districting plan as a violation of the” state constitution,
and that “in November 2018, voters in Colorado and
Michigan approved constitutional amendments creating multimember commissions that will be responsible
in whole or in part for creating and approving district
maps for congressional and state legislative districts.”
Id. at 2507.
6 The Chief Justice’s dissent, while maintaining that a state
legislature may not be entirely excluded from a State’s lawmaking process, did not suggest that such lawmaking must be protected from state court review under substantive state constitutional provisions. See Ariz. State Legislature, 576 U.S. at 825-26
(Roberts, C.J., dissenting).
15
The Court has also endorsed the “legitimacy of state
judicial redistricting,” Growe, 507 U.S. at 34, in the
context of congressional as well as state representative
elections, an endorsement wholly inconsistent with
the view that the Elections Clause allows only the
state legislature to determine congressional districting
schemes. The Court unanimously held that, while the
Clause “leaves with the States primary responsibility
for apportionment of their federal congressional and
state legislative districts,” a State may fulfill its responsibility “through its legislature or other body,” including through a state court. Id. (emphasis added).
Neither the textual reference to the “Legislature,”
nor contemporary historical understandings and practices, nor the Framers’ intentions, nor structural
norms, nor this Court’s precedent supports the view
that the Elections Clause displaces the States’ power
to authorize their state courts to review their legislature’s regulations of congressional elections for conformity with their state constitutions, and to issue appropriate remedies. Most state constitutions give state
courts this role, and the Framers enshrined in the U.S.
Constitution the States’ right to decide for themselves
how to check-and-balance the exercise of state power.
State court review of state laws governing congressional elections under state constitutions does not violate the Elections Clause.
B. The Elections Clause Does Not Deprive
State Legislatures of Their Authority to
Provide for State Court Judicial Review
of Congressional Election Regimes as
Part of Their Prescribed Time, Place, and
Manner Regulations
State courts are generally authorized to entertain
suits raising constitutional challenges to their state
statutes, including those governing federal elections.
16
Sometimes legislatures authorize such review through
grants of general jurisdiction (sometimes confirmed
with special venue or other procedural provisions).
Sometimes there are jurisdictional grants that specifically authorize judicial review of federal districting
schemes and/or other elections rules. North Carolina
falls into the latter category.7 Even if the Elections
Clause could be interpreted to protect state legislatures from unwanted state judicial review under state
constitutions, the Clause surely does not forbid state
legislatures from choosing to “prescribe” state court review under state constitutional provisions.
The contention that by doing so the state legislature
unconstitutionally delegated its lawmaking authority
to the state courts cannot withstand scrutiny. State
court adjudication, while a form of check on the legality of lawmaking, is not itself lawmaking. It is the exercise of judicial power. Marbury v. Madison, 5 U.S. (1
Cranch) 137; see State v. Berger, 781 S.E.2d 248, 250
(N.C. 2016) (the “judicial branch interprets the laws
and, through its power of judicial review, determines
whether they comply with the constitution”). When a
state legislature authorizes state courts to act, it authorizes courts to exercise judicial rather than legislative power. Such a grant of jurisdiction to engage in
traditional judicial review is not a delegation of legislative power.8 And of course Rucho affirmatively embraced state-court, state-constitutional review of state
7 See N.C. Gen. Stat. §§ 1-267.1(a), 120-2.3, 120-2.4(a1).
8 State courts granted authority to engage in judicial review are
not receiving “quintessentially legislative power.” Pet. Brief 45.
State legislatures and Congress are exercising legislative power
when they make state election laws that govern federal elections
or that override such laws, respectively. Yet neither state courts
17
regulations of federal elections. See Rucho, 139 S. Ct.
at 2507 (citing League of Women Voters of Fla. v.
Detzner, 172 So. 3d 363 (2015)).
Courts do not cease to act judicially when they interpret and apply general constitutional provisions such
as “ ‘free’ or ‘fair’ elections” or “equal protection.” Contra Pet. Brief 46. Federal courts have long crafted extensive and complex legal doctrines from similarly
general language without violating non-delegation
principles or acting as legislators.9
The related contention that the General Assembly
impermissibly delegated its prescribing authority by
granting state courts power to craft redistricting plans
is also wrong. State courts implement their own redistricting plans only in a remedial capacity; this is part
of the judicial power. See John Harrison, Severability,
Remedies, and Constitutional Adjudication, 83 Geo.
Wash. L. Rev. 56, 81-82 (2014) (“Judicial review is
based on the assumption that the courts have the
power to decide cases and to give parties remedies that
prevent or alleviate legally cognizable harms.”). And
this Court has already approved state courts’ crafting
of remedial redistricting plans for both congressional
and state legislative districts. See Growe, 507 U.S. at
34 (in parallel proceedings, federal courts should defer
to state courts’ remedial redistricting plans); Abrams
v. Johnson, 521 U.S. 74, 79 (1997) (rejecting argument
reviewing state election laws nor federal courts reviewing congressional enactments that override such laws are legislating.
Both are exercising judicial power.
9 Significantly, this Court has frequently applied general federal constitutional provisions while reviewing election regulations. See, e.g., Anderson v. Celebrezze, 460 U.S. 780, 793-94
(1983) (candidate filing deadline violates free association rights);
Reynolds v. Sims, 377 U.S. 533, 565-66 (1964) (undue population
discrepancies among electoral districts violate equal protection).
18
that district court’s redistricting plan “exceeded the remedial power authorized by our decisions . . . by failing
to follow policies of the state legislature”).10
II. ANY FEDERAL COURT REVIEW OF STATE
COURT
DECISIONS
INTERPRETING
STATE LAWS GOVERNING FEDERAL
ELECTIONS MUST BE TIGHTLY CIRCUMSCRIBED AND APPLY CLEAR LIMITS
A. Because the Constitution Assigns Final
Decisions about State Law to State
Courts, Any Federal Judicial Review Under the Elections Clause Must Be Highly
Deferential
The preceding analysis shows that subjecting state
laws regulating federal elections to state judicial review under state constitutions does not usurp a state
legislature’s authority to prescribe rules governing
federal elections. No federal interest fairly reflected in
the Elections Clause’s text, history, or structure warrants deviation from the well-settled presumption,
grounded in the U.S. Constitution, that state courts’
10 Even if incorrectly characterized as a delegation of legislative
power, the General Assembly’s grant of limited judicial redistricting authority would easily pass muster under the federal nondelegation doctrine (assuming it applies to the separation of powers
regime adopted by a particular state constitution), which requires
only that a federal statute provide an intelligible principle to
guide decision making. Whitman v. Am. Trucking Ass’ns, Inc., 531
U.S. 457, 472 (2010). That standard applies when Congress exercises its Elections Clause power to “make or alter” a State’s prescribed rules for congressional elections, and the Clause provides
no basis to use a different standard when state legislatures prescribe these rules in the first instance. Here, the General Assembly provided courts with a constrained and time-limited grant of
districting authority. See N.C. Gen. Stat. § 120-2.4(a), (a1).
19
decisions about the meaning of state law are authoritative. See Green, 31 U.S. (6 Pet.) at 298 (state court
interpretations of state law “should be considered as
final by this court”); Murdock v. City of Memphis, 87
U.S. (20 Wall.) 590, 611 (1874) (“This court has habitually accepted ‘as a rule of decision’ the adjudications
of the State courts on such questions [of state laws or
constitutions] in all cases arising within the respective
States”); Erie R.R. v. Tompkins, 304 U.S. 64, 78-79
(1938).
If this Court nonetheless concludes that the Elections Clause does permit federal courts to impose some
limit on state courts’ interpretations and applications
of state constitutional law to state laws establishing
the time, place or manner of congressional elections,
the standard of review must be exceedingly deferential. State sovereignty includes the power of each State
to structure its own government and determine the relationships between the legislative and judicial
branches. Where a State has established judicial review of its laws under the state constitution, federal
judicial review of state decisions about state law must
defer to state courts to avoid inappropriate intrusions
on state sovereignty.
If a state court has used the interpretive and decision making tools traditionally used by judicial officers
to reach judgments under state election laws, it cannot
be said that the court has trenched on the state legislature’s prerogatives under the Elections Clause. And
where a state court has used such traditional tools, a
federal court should let state court decisions reviewing
state election laws stand unless there exists no plausibly defensible basis for the court’s determination and
the decision infringes a clear federal interest.
This proposed standard is consistent with those employed in the other highly unusual contexts in which
20
federal courts review state court interpretations of
state law out of concern for the obstruction of a federally protected interest, such as when necessary to determine the “adequacy” of an independent state law
ground invoked by state courts to defeat a claim of federal right. See, e.g., Ind. ex rel. Anderson v. Brand, 303
U.S. 95, 100 (1938) (when addressing Contract Clause
claims and reviewing state court decisions as to
whether a contract was made under state law, “we accord respectful consideration and great weight to the
views of the state’s highest court”); Walker v. Martin,
562 U.S. 307, 320 (2011) (state procedural rules ostensibly barring federal court review of federal claims
“may be found inadequate when discretion has been
exercised to impose novel and unforeseeable requirements without fair or substantial support in prior
state law” or when state rules have been “applied infrequently, unexpectedly, or freakishly”) (cleaned up).
Here, the federal interest under the Elections Clause
involves protection of state laws enacted by a state legislature governing federal elections, and thus should
respect a State’s decision to structure its laws to include judicial review.11
B. State Courts Using Traditional Judicial
Approaches When Interpreting State
Laws and Conducting Judicial Review
Under State Constitutions Are Engaged
in Judicial, Not Legislative, Acts
Like their federal counterparts, state courts use the
traditional tools of judging to determine the meaning
11 The proposed standard is more deferential than that proposed in the concurrence in Bush v. Gore, 531 U.S. 98 (2000) (per
curiam), that is, whether the state court interpreted state law in
a manner “beyond what a fair reading” allows, id. at 115
(Rehnquist, C.J., concurring).
21
of ambiguous text or to fill in the gaps left by a statutory scheme or to resolve the meaning of a general constitutional provision. And again, like their federal
counterparts, when they do so, state courts are engaged in judging, not legislating or policymaking.
Each state court, of course, operates under the
unique state constitutional and statutory regime established by the people and governments of its State.
State constitutions may reflect different “conceptions
of separation of powers.” See Robert A. Schapiro, Article II as Interpretive Theory: Bush v. Gore and the Retreat from Erie, 34 Loyola U. Chi. L.J. 89, 109 (2002).
And while virtually all judges begin the interpretive
process with the text of a statute or constitutional provision, state courts differ with respect to their willingness to discover the intent of their legislatures or the
framers of their constitutions in other sources, such as
legislative history or statements of purpose.12 Some
state legislatures instruct their courts to use particular interpretative approaches.13 Some states have par-
12 Richard H. Pildes, Judging ‘New Law’ in Election Disputes,
29 Fla. St. U. L. Rev. 691, 720-21 (2002) (purposive and textual
interpretation reflect different views of the relationship between
courts and legislatures”). See also State v. Webb, 398 So. 2d 820,
824 (Fla. 1981) (“It is a fundamental rule of statutory construction that legislative intent is the polestar by which the court must
be guided, and this intent must be given effect even though it may
contradict the strict letter of the statute.”); M.J. Farms, Ltd. v.
Exxon Mobil Corp., 998 So. 2d 16, 27 (La. 2008), amended on reh'g (Sept. 19, 2008) (“We have often noted the paramount consideration in statutory interpretation is ascertainment of the legislative intent.”).
13 For example, the Pennsylvania Statutory Construction Act
directs courts that the “object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the
General Assembly” and lists specific factors courts should use to
22
ticular histories and traditions that support some approaches to statutory interpretation or constitutional
adjudication over others.14 And state legislatures are
generally presumed to be aware of their courts’ particular interpretive approaches.15 As a result, state
courts often do not interpret language that appears in
both state and federal constitutions in “lockstep” with
federal courts. See Jeffrey S. Sutton et al., 51 Imperfect
Solutions: State and Federal Judges Consider the Role
of State Constitutions in Rights Innovation, 103 Judicature 33, 45 (2019) (comment by Judge Sutton) (it
“makes no sense” for state and federal courts to provide identical interpretations where “[t]he state court’s
method of interpretation” differs from that of federal
courts). The same is true of statutory interpretation:
“When potential conflicts between federal and state
courts come down to little more than how best to read
ascertain intent if “the words of the statute are not explicit.” 1 Pa.
Cons. Stat. § 1921(a). See also Tex. Gov’t Code Ann. § 311.023,
Statute Construction Aids (“In construing a statute, whether or
not the statute is considered ambiguous on its face, a court may
consider among other matters the: (1) object sought to be attained; (2) circumstances under which the statute was enacted;
(3) legislative history; (4) common law or former statutory provisions, including laws on the same or similar subjects; (5) consequences of a particular construction; (6) administrative construction of the statute; and (7) title (caption), preamble, and emergency provision.”).
14 See generally Linda Ross Meyer, Connecticut’s Anti-Original-
ist Constitutions and its Independent Courts, 40 Quinnipiac L.
Rev. (forthcoming, 2022) (arguing that for particular historical
reasons courts should prioritize common-law reasoning over
originalism when interpreting Connecticut Constitution).
15 See, e.g., State v. Sutherland, 106, 804 P.2d 970, 977 (Kan.
1991) (“The legislature is aware of this court's established rules
of statutory construction.”); People v. Hall, 215 N.W.2d 166, 174
(Mich. 1974) (“This Court will presume that the legislature of this
State is familiar with the principles of statutory construction.”)
23
statutory texts—particularly those replete with seeming gaps and ambiguities—the difference in interpretation will frequently amount to a philosophical difference over how courts should generally go about interpreting statutes.” R. Pildes, Judging ‘New Law’ in
Election Disputes, 29 Fla. S. L. Rev. at 720. But state
courts engaged in this activity are judging, just as federal courts are.
State courts employing traditional modes of judicial
reasoning in unique state constitutional, statutory,
and historical contexts are engaged in judging even if
their chosen approaches and ultimate decisions are not
precisely the same as those that would be reached by
a federal court. And when they do so, state courts, like
federal courts, are not legislating or promoting their
own policy interests or preferences; they are exercising
judicial power and seeking to enforce the policies in the
laws of their states. Federal judicial review of state
court decisions about state election laws should respect the state judiciary’s framework and approach
and defer to the outcomes of those processes except in
extraordinary circumstances.
C. Any Federal Judicial Review of State Decisions About State Election Law Should
Involve a Clear and Workable Standard
To Prevent Unnecessary Intrusions on
State Sovereignty
Any federal limit on the authority of state courts to
resolve the meaning of state election laws must provide a clear and workable standard. Standards that
would authorize state courts to apply specific constitutional provisions but not general provisions, or allow
review under procedural constitutional requirements
but not substantive constitutional requirements, fail
to accord appropriate respect to the States’ decisions
about their individual judicial institutions or to state
24
courts’ decisions. Such standards also fail to provide
sufficient guidance to state courts reviewing state election laws or to federal courts reviewing those state
court decisions. They invite litigation seeking federal
court supervision over every state court decision reviewing the interpretation or application of a state
election law.
For example, in this case, it has been argued that the
Elections Clause prevents state courts from applying
“open-ended” guarantees such as “free” or “fair” elections or “permissible partisanship,” but might allow
state courts to enforce “specific” standards such as
“compactness.” See Pet. Brief 46-47. That labeling is
not workable even in this case.16 More generally, what
other constitutional guarantees should a state court
assume are placed out-of-bounds? Federal courts have
long crafted elaborate legal doctrines from equally
open-ended language, such as “freedom of speech” and
“impartial jury.” Is a provision open-ended under this
rule if it has been the subject of substantial constraining precedent by a state court? And courts of different
16 Here, the distinction is not self-evident: “compactness” for
districting purposes is often defined as “not oddly shaped,” which
is no more judgment-free than “fair.” See Roland G. Fryer Jr. &
Richard Holden, Measuring the Compactness of Political Redistricting Plans, 54 J. Law & Econ 493, 494 (2011) (“This last consideration—distinct from the mathematical notion of a finite subcover of a topological space—refers to how oddly shaped a political
district is. The Supreme Court has acknowledged the importance
of compactness in assessing districting plans for nearly half a century. Yet, despite its importance as a factor in adjudicating gerrymandering claims, the court has made it clear that no manageable standards have emerged (see the judgment of Justice Antonin Scalia in Vieth v. Jubelirer, 541 U.S. 267 [2004]). There is no
consensus on how to adequately measure compactness.”) (footnote omitted).
25
sovereigns might reasonably reach different conclusions about which clauses are open-ended, each based
on legitimate forms of legal reasoning.17
Likewise, how are courts to distinguish statutory
and constitutional requirements that are procedural
from those that are substantive? Smiley teaches that
state constitutional provisions authorizing the governor to veto bills that regulate the time, place or manner of federal elections are permissible under the Electors Clause. See supra at 13-14. Is that a procedural
limit on the state legislature’s authority and, if so,
why? What about state constitutional provisions requiring that bills address only a single subject or requiring that bills have a clear title, both of which influence legislative procedure but are designed to promote the substantive values of accountability and democracy?18 Indeed, decades of litigation addressing
what state rules are enforceable in federal courts sitting in diversity jurisdiction teaches that this distinction is elusive. See Shady Grove Orthopedic Assocs.,
P.A. v. Allstate Ins. Co., 559 U.S. 393, 414 (2010) (plurality) (saying that “undoubtedly some hard cases will
17 “Open-ended”
constitutional provisions do not necessarily
lend themselves to liberal rather than conservative rights. “Fair”
election provisions can support judicial rulings that prevent
fraud, as well those that protect voter access. See J. Sutton, 51
Imperfect Solutions, supra at 176 (“[t]here’s nothing about the
state constitutions that necessarily points toward liberal or conservative rights”).
18 See Martha J. Dragich, State Constitutional Restrictions on
Legislative Procedure: Rethinking the Analysis of Original Purpose, Single Subject, and Clear Title Challenges, 38 Harv. J. on
Legis. 103, 104 (2001) (single subject and clear title provisions are
“intended to promote open, orderly, and deliberative legislative
processes, and can be found in almost all state constitutions”)
(footnote omitted).
26
arise” in attempting to determine whether a rule “regulates substance or procedure”); id. at 419 (Stevens, J.,
concurring) (“The line between procedural and substantive law is hazy”) (quoting Erie, 304 U.S. at 92
(Reed, J., concurring in result)); id. (“in some situations, ‘procedure and substance are so interwoven that
rational separation becomes well-nigh impossible’”)
(internal quotation omitted)).
The Conference submits that it is not feasible to develop a clear standard to identify the constitutional
provisions that are too open-ended or too substantive
to apply to state regulation of federal elections. How
will a state court know if its interpretation of a statute
or constitutional provision has invaded the legislature’s authority to determine the time, place and manner of federal elections? Is the only criterion the plain
meaning of the provision’s text? May the court consider the historical events that led to the enactment of
the statute or constitutional provision, or legislative
developments that occurred after the statute or constitutional provision was enacted? If so, which sources
may be consulted and how much weight should be accorded to each? May the court consider the way other
state courts have interpreted similar provisions in
their constitutions?19 May it consider its own precedent interpreting the provision or other provisions in
the statute or constitution that use similar language
or raise analogous issues? May the court consider reasons why a particular interpretation is appropriate in
19 For example, see Chavez v. Brewer, 214 P.3d 397, 407 (Ariz.
Ct. App. 2009) (“Other states with similar constitutional provisions have generally interpreted a ‘free and equal’ election as one
in which the voter is not prevented from casting a ballot by intimidation or threat of violence, or any other influence that would
deter the voter from exercising free will, and in which each vote
is given the same weight as every other ballot.”)
27
light of other contextual and federalism-serving factors or conditions that might distinguish how laws
function in that state from sister states and from the
federal system? Unclear guidance (either through
case-by-case judgments or hard-to-describe general
guidelines) will leave state courts confused as to when
and how they must eschew state law to hew to Elections Clause boundaries.
Likewise, without clear guidance, federal courts will
face the same difficulties in reviewing claims that a
state court usurped the legislature’s power in violation
of the Elections Clause. As a result, federal courts
could face accusations of policy-driven decision making
akin to the allegations that have been levied at some
state courts.
Finally, any standard that does not provide a clear
bright line will result in a flood of new claims about
the enforcement of state laws governing federal elections. Litigants will challenge applications of state law
by state election officials and state trial courts. Some
litigants will undoubtedly seek initial review of state
officials’ decisions in federal district court. See, e.g.,
Carson v. Simon, 978 F.3d 1051 (8th Cir. 2020) (per
curiam) (suit to enjoin election official’s implementation of consent decree governing counting of absentee
ballots). Parties who are sued in state court and lose
constitutional challenges to state statutes or executive
regulations, or who lose statutory challenges to executive regulations, will frequently seek this Court’s review of their plausible Elections Clause claims. Only a
highly deferential standard that establishes a clear
standard can prevent repetitive, burdensome, high
stakes and expedited litigation involving the most delicate matter—who will be our elected leaders.
***
28
The Elections Clause does not derogate from state
courts’ authority to decide what state election law is,
including whether it comports with state and U.S.
Constitutions. But if this Court authorizes federal judicial review of state court decisions about the content
of state election law based on use of the word “Legislature” in the Elections Clause, that review should be
rare and extraordinarily deferential in light of its intrusion on a realm the U.S. Constitution assigns to
state courts. And the standard for federal review
should reflect a bright and administrable line; otherwise, federal courts, including this Court, will be
flooded with requests to second-guess state court decisions interpreting and applying state elections laws
during every election cycle, infringing on state sovereignty and repeatedly involving the federal judiciary
in election disputes. Under these circumstances, any
federal court supervision of state law interpretation
should consider only whether the state court has
reached a result that is not plausibly defensible as judicial decision making and that infringes a federal constitutional interest.
CONCLUSION
The Conference respectfully submits that this Court
should clarify that the Elections Clause does not oust
state courts from their traditional role in reviewing
election laws under state constitutions. And if the
Election Clause imposes any independent constraint
on state-court review of state election laws governing
federal elections—one that overrides the foundational
rule that state courts authoritatively determine the
meaning of state law—that review should apply a clear
standard and be highly deferential to state court decisions.
29
Respectfully submitted,
EVAN CAMINKER
UNIV. OF MICHIGAN LAW
SCHOOL**
701 South State Street
Ann Arbor, MI 48109
(734) 763-5221
CARTER G. PHILLIPS*
VIRGINIA A. SEITZ
KATHLEEN M. MUELLER
SIDLEY AUSTIN LLP
1501 K Street, NW
Washington, DC 20005
(202) 736-8000
cphillips@sidley.com
Counsel for Amicus Curiae
September 6, 2022
* Counsel of Record
**University affiliation provided for identification
purposes only
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.