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

No. 21-1271

IN THE

Supreme Court of the United States

TIMOTHY K. MOORE, in his official capacity as

Speaker of the North Carolina House of

Representatives, et al.

Petitioners,

v.

REBECCA HARPER, et al.

Respondents.

On Writ of Certiorari to the

North Carolina Supreme Court

BRIEF OF PROFESSOR EVAN BERNICK

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

HELEN E. WHITE

PROTECT DEMOCRACY

PROJECT

2020 Pennsylvania Ave.

NW, #163

Washington, DC 20006

ANTON METLITSKY

Counsel of Record

BRUCE PETTIG

O’MELVENY & MYERS LLP

7 Times Square

New York, NY 10036

(212) 326-2000

ametlitsky@omm.com

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

Page

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

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

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

I. The Text and Original Understanding of

the Elections Clause Show that It Does Not

Delegate Authority over Elections to

“Independent” Legislatures. ................................ 3

A. The Framers Specified that Federal

Election Rules Would Be Written by

State “Legislatures” to Prohibit

Unilateral, Unchecked Executive

Control over Elections. ................................... 4

B. The Elections Clause Used Language

Materially Identical to the Elections

Provision of the Articles of

Confederation, Which Unambiguously

Contemplated State Constitutional

Restrictions. .................................................... 7

C. Post-Ratification State Practice

Confirms that the Elections Clause Was

Never Understood to Free State

Legislatures from State Constitutional

Strictures. ..................................................... 12

D. Petitioners’ Supposed Blockbuster

Evidence Is Fraudulent. ............................... 21

II. Subsequent Historical Practice Confirms

that State Legislative Regulation of

Elections Is Subject to State Constitutional

Limits and Judicial Review. .............................. 25

CONCLUSION ........................................................ 31

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Page(s)

Cases

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n,

576 U.S. 787 (2015) ............................18, 19, 20, 28

Bourland v. Hildreth,

26 Cal. 161 (Cal. 1864) ....................................... 27

Chiafalo v. Washington,

140 S. Ct. 2316 (2020)........................17, 25, 26, 31

District of Columbia v. Heller,

554 U.S. 570 (2008) ............................................. 16

Gregory v. Ashcroft,

501 U.S. 452 (1991) ............................................. 17

Hawke v. Smith,

253 U.S. 221 (1920) ............................................. 20

Highland Farms Dairy, Inc. v. Agnew,

300 U.S. 608 (1937) ............................................. 20

In re Opinions of Justices,

45 N.H. 595 (1864) .............................................. 27

In re Plurality Elections,

8 A. 881 (R.I. 1887) ............................................. 28

Jackson v. Ogilvie,

426 F.2d 1333 (7th Cir. 1970)............................... 5

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Lehman v. McBride,

15 Ohio St. 573 (Ohio 1863) ............................... 27

Morrison v. Lamarre,

65 A.2d 217 (R.I. 1949) ....................................... 30

Morrison v. Springer,

15 Iowa 304 (Iowa 1864) ..................................... 27

N.L.R.B. v. Noel Canning,

573 U.S. 513 (2014) ............................................. 25

Opinion of the Judges,

30 Conn. 591 (Conn. 1862) ................................. 27

Parsons v. Ryan,

60 P.2d 910 (Kan. 1936) ..................................... 28

People ex rel. Twitchell v. Blodgett,

13 Mich. 127 (Mich. 1865) .................................. 26

Seila L. LLC v. Consumer Fin. Prot.

Bureau,

140 S. Ct. 2183 (2020)......................................... 17

Smiley v. Holm,

285 U.S. 355 (1932) ....................................... 19, 20

State ex rel. Chandler v. Main,

16 Wis. 398 (Wis. 1863) ...................................... 27

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

State ex rel. Schrader v. Polley,

127 N.W. 848 (S.D. 1910) ................................... 27

Trump v. Mazars USA, LLP,

140 S. Ct. 2019 (2020)......................................... 25

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

514 U.S. 779 (1995) ............................................. 16

Vanhorne’s Lessee v. Dorrance,

2 U.S. (2 Dall.) 304 (C.C.P. 1795) ....................... 20

Wilmington Tr. Co. v. Baldwin,

195 A. 287 (Del. Super. Ct. 1937) ....................... 13

Zivotofsky v. Kerry,

135 S. Ct. 2076 (2015)......................................... 25

Constitutional Provisions

U.S. Const. amend. XVII ............................................ 5

U.S. Const. art. I, § 2, cl. 4 ......................................... 5

U.S. Const. art. I, § 3................................................ 19

U.S. Const. art. I, § 3, cl. 1 ....................................... 18

U.S. Const. art. I, § 4.............................................. 8, 9

U.S. Const. art. I, § 4, cl. 1 ................................... 3, 11

U.S. Const. art. I, § 5, cl. 5 ....................................... 28

v

TABLE OF AUTHORITIES

(continued)

Page(s)

U.S. Const. art. IV ...................................................... 7

U.S. Const. art. IV, § 4 ......................................... 7, 20

U.S. Const. art. V ..................................................... 20

Ala. Const. of 1819, art. III, § 7 ............................... 13

Ala. Const. of 1819, sched., § 7 ................................ 13

Ark. Const. art. II, § 5 (1836)................................... 31

Articles of Confederation, art. V ............................ 8, 9

Del. Const. of 1792, art. VIII, § 2............................. 12

Ill. Const. art. III, § 8 ............................................... 31

Ill. Const. art. VIII, § 5 (1818) ................................. 31

Ill. Const. of 1818, Art. VIII, § 5 .............................. 13

Ill. Const. of 1818, sched., § 9 .................................. 13

Ind. Const. of 1816, art. VI, § 6 ............................... 13

Ind. Const. of 1816, art. XII, § 8 .............................. 13

La. Const. of 1812, art. VI, § 13 ............................... 13

Md. Const. of 1810, art. XIV .................................... 13

Miss. Const. of 1817, sched., § 7 .............................. 13

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TABLE OF AUTHORITIES

(continued)

Page(s)

Mo. Const. of 1820, art. XIII, § 6 ............................. 13

Mo. Const. of 1820, sched., § 9 ................................. 13

N.Y. Const. of 1821, art. II, § 4 ................................ 13

Ohio Const. of 1803, art. IV, § 2 .............................. 13

R.I. Const. art. I, § 2 (1843)...................................... 31

S.C. Const. of 1776, art. XV ....................................... 8

Va. Const. of 1776 ...................................................... 8

Other Authorities

2 The Records of the Federal

Convention of 1787 (Max Farrand

ed., 1911) ............................................................. 11

3 The Records of the Federal

Convention of 1787 (Max Farrand

ed., 1911) ....................................................... 23, 24

Andrew C. McLaughlin, Sketch of

Charles Pinckney’s Plan for a

Constitution, 1787, 9 Am Hist. Rep.

735 (1904) ............................................................ 23

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of

Legal Texts 112 (2012) .......................................... 6

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Bruce Ackerman & Neal Katyal, Our

Unconventional Founding, 62 U.

Chi. L. Rev. 475 (1995) ......................................... 5

Clinton Rossiter, 1787: The Grand

Convention 331 (1966) ........................................ 24

Eliza Sweren-Becker & Michael

Waldman, The Meaning, History,

and Importance of the Elections

Clause, 96 Wa. L. Rev. 997 (2021) ............... 11, 14

Hayward H. Smith, Revisiting the

History of the Independent State

Legislature Doctrine, 53 St. Mary’s

L.J. 445, 475-76 (2022) ................................ passim

Honorable Amy Coney Barrett,

Assorted Canards of Contemporary

Legal Analysis: Redux, 70 Case W.

Res. L. Rev. 855 (2020) ....................................... 16

James Madison, Appendix 2, Note of

Mr. Madison to the Plan of Charles

Pinckney, May 29, 1787, in The

Papers of James Madison (Henry D.

Gilpin ed., 1840) .................................................. 23

John Franklin Jameson, Studies in the

History of the Federal Convention of

1787, 1 Ann. Rep. Am. Hist. Ass’n 87

(1903) ............................................................. 23, 24

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Letter from Charles Pinckney to John

Quincy Adams (Dec. 12, 1818), in 3

The Writings of James Madison 22

(Gaillard Hunt ed., 1902) ................................... 22

Letter from James Madison to

Lafayette (Nov. 1826), reprinted in 3

Letters and Other Writings of James

Madison 542 (Philadelphia, J.B.

Lippincott & Co. 1865)........................................ 28

Letter from Jared Sparks to James

Madison (May 5, 1830), in 3 The

Records of the Federal Convention of

1787 (Max Farrand ed., 1911) ............................ 23

Lynn Uzzell, The Deep South’s

Constitutional Con, 53 St. Mary’s

L.J. 711 (2022) .................................................... 22

Michael T. Morley, The Independent

State Legislature Doctrine, Federal

Elections, and State Constitutions,

55 Ga. L. Rev. 1 (2020) ........................... 15, 16, 17

Michael Weingartner, Liquidating the

Independent State Legislature

Theory, 46 Harv. J.L. & Pub. Pol’y

(forthcoming 2023) ....................................... passim

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

Paul Leicester Ford, Pinckney’s Draft of

a Constitution, 60 The Nation, Jun.

14, 1895 ............................................................... 24

Randy E. Barnett & Evan Bernick, The

Letter and the Spirit: A Unified

Theory of Originalism, 107 Geo. L.H.

1 (2018) .................................................................. 1

Randy E. Barnett & Evan Bernick, The

Original Public Meaning of the

Fourteenth Amendment: It’s Letter &

Spirit (Harvard 2021) ........................................... 1

Randy E. Barnett & Evan D. Bernick,

No Arbitrary Power: An Originalist

Theory of the Due Process of Law, 60

Wm. & Mary L. Rev. 1599 (2019) ......................... 6

S. Sidney Ulmer, James Madison and

the Pinckney Plan, 9 S. Carolina L.

Rev. 415 (1957) ............................................. 23, 24

The Declaration of Independence (1776)................... 5

The Federalist No. 37 (James Madison) ................. 25

The Federalist No. 49 (James Madison) ................... 7

The Federalist No. 59............................................... 28

x

TABLE OF AUTHORITIES

(continued)

Page(s)

Vikram David Amar & Akhil Reed

Amar, Eradicating Bush-League

Arguments Root and Branch: The

Article II Independent-StateLegislature Notion and Related

Rubbish, 2021 S. CT. REV. 1 ............................. 4, 6

William Baude, Constitutional

Liquidation, 71 Stanford L. Rev. 1

(2019) ..................................................25, 26, 27, 28

Zachary D. Clopton & Steven E. Art,

The Meaning of the Seventeenth

Amendment and a Century of State

Defiance, 107 Nw. U. L. Rev. 1181

(2013) ................................................................. 4, 5

1

INTEREST OF AMICUS CURIAE1

Evan Bernick is a constitutional law scholar committed to the view that “the meaning of the Constitution remains the same until it is properly changed,

with an Article V amendment being the only proper

method of revision.” Randy E. Barnett & Evan Bernick, The Letter and the Spirit: A Unified Theory of

Originalism, 107 Geo. L.J. 1, 3 (2018); see also Randy

E. Barnett & Evan Bernick, The Original Public

Meaning of the Fourteenth Amendment: It’s Letter &

Spirit (Harvard 2021). Professor Bernick seeks to aid

the Court in its effort to determine the original public

meaning of the constitution by offering expert research and analysis of Founding-era history related

to the Elections Clause.

SUMMARY OF ARGUMENT

The original public meaning of the Elections

Clause precludes Petitioners’ atextual and ahistorical

claim that state legislatures wield arbitrary power,

unbound by their state constitutions, to enact legislation to regulate federal elections.

As colonial citizens, the Framers watched the King

dissolve parliament and then refuse to call a new election in order to aggrandize his own power. The ratifying public was acutely aware that concentrated

power over elections could threaten their entire experiment in republican government and regarded all

1 No counsel for a party authored this brief in whole or in part,

and no entity or person, other than amicus curiae and his counsel, made a monetary contribution intended to fund the preparation or submission of this brief. All parties have consented to the

filing of this brief.

2

legislative power as inherently limited. The Constitution therefore assigned power over federal elections

not to “States” generally, as states might choose to

continue unilateral executive control over elections.

Instead, the Framers assigned that power to the

states’ legislative processes, directing state “Legislatures” to “prescribe,” through normal legislative processes specified and limited by state constitutions, the

“time, place, and manner” of congressional elections.

This language first appeared in the Article of Confederation governing the selection of federal delegates. Under the Articles, nine (of thirteen) states’

constitutions directly regulated the “manner” of selecting federal delegates. When adopting the Constitution, the Framers retained the same language and

structure in the Elections Clause. The Framers, who

were obviously intimately familiar with both their

own state constitutions and the Articles—and who deliberately departed from the Articles at numerous

points—would not have adopted the language of the

Articles if they had wanted to radically change the

practice. Nor was there was any suggestion at the

convention that this language should bear a new and

different meaning.

Unsurprisingly, as more states held constitutional

conventions in the aftermath of the ratification of the

federal Constitution, states continued to add and

adopt constitutional provisions governing federal

elections. By 1830, more than half the states had

state constitutions that regulated federal elections—

despite having no federal constitutional obligation to

do so. This early historical evidence confirms the original understanding of the Elections Clause, and conclusively refutes Petitioners’ theory. The judgment of

3

the North Carolina Supreme Court should be affirmed.

ARGUMENT

The Elections Clause provides that: “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.” U.S. Const.

art. I, § 4, cl. 1. When state legislatures legislate, they

do so as empowered and limited by their state constitutions. Yet according to Petitioners, the Framers’

use of the word “Legislature” in the first portion of the

Elections Clause was intended to free state legislatures of those ordinary constraints when they enact

laws governing federal elections. Petitioners offer no

persuasive textual account of that counterintuitive

theory. And their theory is completely foreclosed by

the Elections Clause’s drafting history and early state

practice. And if the text and history leave any doubt

(and they do not), the meaning of the phrase has been

liquidated through more than two hundred years of

consistent state constitutional regulation of federal

elections.

I. The Text and Original Understanding of the

Elections Clause Show that It Does Not Delegate Authority over Elections to “Independent” Legislatures.

The text and historical evidence demonstrates the

Founding generation understood state constitutions

to constrain the legislatures they create—even when

they regulate federal elections. State constitutionalism was the “heart and soul, legally, of the American

4

revolution” and ensured state legislatures operated

only within the bounds of the authority constitutionally delegated to them by the people. See Vikram David Amar & Akhil Reed Amar, Eradicating BushLeague Arguments Root and Branch: The Article II

Independent-State-Legislature Notion and Related

Rubbish, 2021 S. CT. REV. 1, 19. Accordingly, in the

decades after ratification, states across the country

added layers of state constitutional protections for

federal elections in keeping with the original understanding of the Elections Clause. This intricate quilt

of overlapping powers and constraints thus secures

federal elections from the kind of factional manipulation that might threaten the animating and exceptional idea of the American Experiment: rule by the

people, through representatives chosen through free

and fair elections.

A. The Framers Specified that Federal Election Rules Would Be Written by State

“Legislatures” to Prohibit Unilateral, Unchecked Executive Control over Elections.

Common law and colonial practice shows that the

Framers were acutely concerned about preventing

electoral manipulation by any actor in the system. At

common law, elections were called by executive writ

of election. In England, where the writ originated,

“[t]raditionally, the monarch called for the election of

a new Parliament by issuing the writ.” Zachary D.

Clopton & Steven E. Art, The Meaning of the Seventeenth Amendment and a Century of State Defiance,

107 Nw. U. L. Rev. 1181, 1202-03 (2013). To no one’s

surprise, this royal power was not always employed to

democratic ends. King James II infamously cancelled

5

writs of election in a vain attempt to stall the Glorious

Revolution, see Bruce Ackerman & Neal Katyal, Our

Unconventional Founding, 62 U. Chi. L. Rev. 475, 559

(1995), and—better known to the Framers—King

George III withheld the writ in colonial elections, see

Clopton & Art, supra, at 1203 & nn.87-88.

Indeed, the founding generation was so wary of the

writ’s abuses that the Declaration of Independence

specifically decried King George’s actions on this

score, charging that he “dissolved Representative

Houses repeatedly, for opposing with manly firmness

his invasions on the rights of the people,” and “refused

for a long time, after such dissolutions, to cause others

to be elected.” The Declaration of Independence ¶ 3

(1776).

The fear of executive exercise of authority over

elections explains why the Framers specified that the

responsible state authority is the “Legislature” (and

only the Legislature). Had the Elections Clause

merely devolved authority to regulate elections on

“the State,” many states may well have found it expedient to permit the governors to regulate the timing

of elections through issuance of executive writs of

election. Thus, the Framers ensured that federal elections could never be regulated through executive writ,

and must instead be controlled by the state “Legislatures” “prescrib[ing]” “[r]egulations” through ordinary legislation. And the Framers gave executive

writs an extremely limited scope—they were authorized only for purposes of calling elections to fill congressional vacancies, and even then left governors no

discretion in determining whether to issue the writ.

See U.S. Const. art. I, § 2, cl. 4 (directing that the writ

“shall issue”); id. amend. XVII (same); see Jackson v.

6

Ogilvie, 426 F.2d 1333, 1336 (7th Cir. 1970) (“The language is mandatory.”); Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal

Texts 112 (2012) (“Mandatory words impose a duty ...

shall is mandatory.” (emphasis in original)). The

Framers’ distrust of executive authority fully explains

why they specified that federal elections regulations

should be enacted by state “Legislatures” through legislation.

But the Framers were also concerned with legislative abuses. Petitioners’ theory that the Framers

used the word “Legislature” in the Elections Clause to

free state legislatures from state constitutional constraints cannot withstand historical scrutiny. The

Founding generation viewed ALL state power as inherently limited, and thus carefully constructed republican constitutions that checked and balanced

power. See Amar & Amar, supra at 19. These constitutions were designed to prevent what in the Founders’ republicanism was regarded as among the primary constitutional evils—the exercise of arbitrary

power, understood as power that serves no legitimate,

public-oriented end of government. See Randy E. Barnett & Evan D. Bernick, No Arbitrary Power: An

Originalist Theory of the Due Process of Law, 60 Wm.

& Mary L. Rev. 1599, 1663-65 (2019).

Text cannot be understood without historical context. To be sure, Petitioners’ theory makes no sense

as a textual matter. Use of the word “Legislature” in

the first portion of the Elections Clause no more implies independence from state constitutional constraints than the word “Congress” in the second portion of that clause implies independence from federal

constitutional constraints. But it becomes downright

7

bizarre when one considers that the Founding generation regarded legislative power with suspicion, and

that suspicion was integral to the Constitution’s design. That is why they highlighted “the tendency of

republican governments … to an aggrandizement of

the legislative at the expense of the other departments.” The Federalist No. 49 (James Madison) (Jacob E. Cooke ed., 1961). That is why they specifically

guaranteed “to every State in this Union a Republican

Form of Government.” U.S. Const. art. IV, § 4. And

that is why they imposed a number of novel restrictions on state governments that were responsive

to perceived legislative abuses under the Articles. See

Art. IV. Congress does not hide elephants in mouseholes; still less does the Constitution conceal stores of

arbitrary power within carefully reticulated republican structures.

To the extent there were any doubt about the original understanding of the Elections Clause, however,

that Clause’s drafting history and early state practice

definitively resolves it. As explained below, the Elections Clause’s original public meaning is unambiguous, and entirely irreconcilable with Petitioners’ theory.

B. The Elections Clause Used Language Materially Identical to the Elections Provision of the Articles of Confederation,

Which Unambiguously Contemplated

State Constitutional Restrictions.

The Articles of Confederation provided that “delegates shall be annually appointed in such manner as

the legislature of each State shall direct,” but “with a

power reserved to each State to recall … and to send

8

others.” Articles of Confederation, art. V. As shown

below, state practice before and after the Articles’

adoption shows that state legislatures writing election rules under Article V were bound by state constitutions. That is crucial here, because the language of

Article V is materially identical to the language the

Framers later adopted as the first portion of the Elections Clause. Compare Articles of Confederation, art.

V (delegates chosen “in such manner as the legislature of each State shall direct”), with U.S. Const. art.

I, § 4 (federal election rules “shall be prescribed in

each State by the Legislature thereof”). The fact that

state constitutions were understood to bind state legislatures in the exercise of authority under Article V

is strong evidence that the Elections Clause’s substantially similar language was understood the same

way.

1. Under the Articles of Confederation, state constitutions were understood to bind state legislatures

when they acted under Article V.

Only two state constitutions—Virginia and South

Carolina—predated the Articles’ drafting. And both

of those state constitutions expressly regulated the

“manner” of selecting the state’s federal delegates.

See Va. Const. of 1776 (requiring delegates be selected

by “joint ballot of both Houses of Assembly”); S.C.

Const. of 1776, art. XV (similar). Had the Framers or

the ratifying public understood the Articles to nullify

provisions in each of the two state constitutions in existence at the time, there would likely have been some

evidence of that monumental shift. And yet there is

none, and those state constitutional provisions continued to apply under the Articles. See Hayward H.

Smith, Revisiting the History of the Independent State

9

Legislature Doctrine, 53 St. Mary’s L.J. 445, 475-76

(2022).

As other states adopted constitutions in the aftermath of the Articles, they, too, included constitutional

provisions regulating the selection of federal delegates. In the years between 1776 and the constitutional convention in 1787, Delaware, Georgia, New

York, Massachusetts, Pennsylvania, Maryland, and

New Hampshire all adopted constitutions that, like

Virginia’s and South Carolina’s directly regulated the

“manner” of selecting federal delegates. Id. at 476-80.

Those constitutional provisions would be void if the

Articles’ assignment of power over the “manner” of selecting delegates to state “legislatures” displaced any

state constitutional constraints on those legislatures.

Yet, delegates even arrived for their federal service

with credentials confirming they had been selected in

manners consistent with their state constitutions. Id.

at 479-80.

2. The first portion of the Elections Clause provides that “[t]he 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. This simply imports the same

language from Article V of the Articles of Confederation. See Smith, supra, at 480-84. Both under Article

V and the Elections Clause, the “legislatures” in “each

state” were tasked with primary responsibility for determining the “manner” of choosing federal representatives. Compare U.S. Const. art. I, § 4, with Articles

of Confederation, art. V.

Understood in light of early state practice under

the Articles, Petitioners’ reading of the Elections

10

Clause requires us to imagine that the Framers of

that Clause radically reshaped state constitutionalism in the federal electoral arena without altering the

relevant language. That is implausible. If the Framers meant the first portion of the Elections Clause to

be understood differently from Article V, they would

not have used the same language. To the contrary,

the Framers—as well as the state delegates called to

ratify the Constitution—were undoubtedly aware of

the prevailing state practice under the Articles. The

fact that they chose to borrow Article V’s language for

the Elections Clause demonstrates that they understood the Elections Clause to allow state constitutional constraints on legislation, just as Article V indisputably did.

Certainly, the constitutional debates offer no support for the notion that this part of the Elections

Clause marked some major departure from the Articles. See Smith, supra, at 480-84. That is hardly surprising given that Article V and the Elections Clause

were each drafted by individuals who also framed

state constitutions that regulated selection of federal

delegates under the Articles. See id. at 482-83 (describing the involvement John Dickinson, Roger Sherman, James Madison, and Gouverneur Morris). The

first part of the clause, therefore, was understood by

the Framers and Founding-era public to simply continue the structure established under the Articles:

State legislatures set the “manner” of selecting federal representatives, subject to the lawmaking process established and constrained by the state constitution.

3. The second portion of the Elections Clause was,

of course, very different from the Articles, and indeed

11

was a constitutional sea change. That provision is

thus not as directly relevant to the question presented

here as the Elections Clause’s first part. Nevertheless, that second portion likewise undermines Petitioner’s argument.

The second portion granted Congress new power

to “make or alter” states’ time, place and manner “regulations.” U.S. Const. art. I, § 4, cl. 1. That new

power was necessary, Madison explained, because

“[s]tate [l]egislatures will sometimes fail or refuse to

consult the common interest at the expense of their

local conveniency or prejudices.” Eliza SwerenBecker & Michael Waldman, The Meaning, History,

and Importance of the Elections Clause, 96 Wash. L.

Rev. 997, 1007 (2021) (quoting 2 The Records of the

Federal Convention of 1787, at 240-41 (Max Farrand

ed., 1911)). In other words, corrupt state legislators

might be so singularly focused on state interests that

they would undermine national elections to get their

way. See id. 1005-08 (detailing other Framers’ similar views and related justification for this part of the

clause). Some backstop, with the interest of the whole

nation in mind, was therefore necessary to avoid localized legislative factions derailing the national government for their own gain. Cue Congress’s power

over federal elections.

In crafting the Elections Clause, the Framers were

therefore chiefly concerned with the threat concentrated state power—legislative power emphatically

included—over elections could pose to the national

government. See also supra at 4-7 (describing the

Framers’ fears of abuses of executive writs of election). Petitioners’ theory, though, is that while the

12

Framers expressly granted Congress broad new powers to check state legislatures’ excesses in the writing

of federal election rules, they at the same time silently

freed those same state legislatures from existing

state-level constraints on their powers over the selection of federal representatives. This theory is implausible, and should be rejected.

C. Post-Ratification State Practice Confirms

that the Elections Clause Was Never Understood to Free State Legislatures from

State Constitutional Strictures.

1. A survey of the flurry of state constitutions

adopted in the wake of ratification confirms that Petitioners’ reading stands at odds with the original

public meaning of the Constitution.

For example, following his work drafting the Elections Clause, John Dickinson returned to Delaware

and led that state’s constitutional convention. See

Smith, supra, at 484-85. There, Delaware adopted a

constitutional provision specifying that congressional

elections should occur in the same place and manner

as state legislative elections. Del. Const. of 1792, art.

VIII, § 2. Neither Dickinson nor Delaware were outliers. In the decade after ratification, Georgia (1789),

Pennsylvania (1790), Kentucky (1792), and Tennessee (1796) each adopted state constitutions requiring

“all elections” be “by ballot.” Smith, supra, at 487493. Over that same period, New Hampshire, (1792),

Delaware (1792), Vermont (1793), Kentucky (1792

and 1799), and Tennessee (1796), all adopted constitutional provisions that—like the North Carolina provision at issue here—required “all elections” be “free.”

13

Id. On Petitioners’ view, each of these provisions

would have been unconstitutional.

Expanding the time horizon, as Petitioners do (at

12), to 1830, only expands the body of evidence contrary to their position. Ohio (1803), Louisiana (1812),

Indiana (1816), Alabama (1819) and New York (1821)

all followed other states by adopting state constitutional provisions requiring “all elections” be “by ballot.”2 Illinois (1818) and Missouri (1820) each adopted

constitutions requiring that “elections” be “free and

equal.” Mo. Const. of 1820, art. XIII, § 6 (“all elections

shall be free and equal”); Ill. Const. of 1818, art. VIII,

§ 5 (declaring “[t]hat elections shall be free and

equal”). 3

Maryland’s 1810 constitution expressly

granted the “right of suffrage” “by ballot” in elections

for “electors of the President and Vice-President of the

United States, for [r]epresentatives of this [s]tate in

the Congress of the United States [and specified state

offices].” Md. Const. of 1810, art. XIV. And, in 1830,

James Madison—a member of the Committee on Unfinished Parts that drafted the analogously-worded

2 Ohio Const. of 1803, art. IV, § 2; La. Const. of 1812, art. VI, §

13; Ind. Const. of 1816, art. VI, § 6; Ala. Const. of 1819, art. III,

§ 7; N.Y. Const. of 1821, art. II, § 4.

3 In addition, the schedules to state constitutions in Mississippi,

Missouri, Alabama, Illinois, and Indiana outlined election procedures specifically for those states’ first congressional elections.

See Ind. Const. of 1816, art. XII, § 8; Miss. Const. of 1817, sched.,

§ 7; Ill. Const. of 1818, sched., § 9; Ala. Const. of 1819, sched.,

§ 7; Mo. Const. of 1820, sched., § 9. Those schedules were considered part of the original constitution of the state, see e.g., Wilmington Tr. Co. v. Baldwin, 195 A. 287, 290 (Del. Super. Ct.

1937), thus demonstrating that the public understood that state

constitutions could regulate federal elections.

14

Electors Clause—and sitting Chief Justice John Marshall voted to adopt the Virginia constitution, which

expressly regulated the apportionment of congressional districts. See Smith, supra, at 485-87. Madison and Marshall’s 1830 votes were especially significant because they were cast after objections from a

minority of the delegation that this provision violated

the Elections Clause. See id. at 486-87.

States were, of course, under no obligation to use

their state constitutions to regulate federal elections.

Yet, of the 21 states that adopted constitutions between 1789 and 1830, more than half (13) adopted

state constitutional provisions that regulated federal

elections, including several that were ratified with

the help and guidance of the drafter of the Elections

Clause.

2. Petitioners efforts to explain away the Respondents’ robust state-practice evidence miss the mark.

a. Petitioners first erroneously claim that Respondents overstate the number of early state constitutions that regulate federal elections. 4 Despite

4 Amicus Honest Elections Project (at 9-10) similarly tries to discredit the “all elections shall be free and equal” provisions by

suggesting that these expansive provisions were understood to

concern only voter qualifications. It offers no plausible support

for that patently atextual claim. Amicus points to evidence that

several states understood these provisions to prohibit unwarranted disenfranchisement. See HEP Br. at 9-10. But that does

not mean they only implicate a state’s voter qualifications rules.

For example, the Framers were acutely aware that abuse of the

power to set the “place” of holding elections could disenfranchise

certain classes of persons. See Sweren-Becker & Waldman, supra, at 1013.

15

claiming to carry the textualist mantle, Petitioners

assert that the many state constitutional provisions

that regulate “all elections” somehow do not actually

regulate “all” elections, but instead apply only to state

elections. Pet. Br. 38-39; see also Michael T. Morley,

The Independent State Legislature Doctrine, Federal

Elections, and State Constitutions, 55 Ga. L. Rev. 1,

38 & n.168 (2020). Of course, Petitioners point to

nothing in the text of any of these state constitutions

that supports this counterintuitive reading of “all,”

which ordinarily means all and not just some.

Nor do they point to any evidence that anyone at

the time understood the word “all” to have such an

unusually cramped, technical meaning in this context. In requiring that “all elections” be “by ballot” in

some states and “by voice” in others, those state constitutions were wading into the most charged election

law topic of the day. See Smith, supra, at 490. Had

those constitutional provisions been understood not to

apply to federal elections, surely there would be some

evidence of divergent practices in some holdout jurisdictions within those states. Yet, as Petitioners concede (at 37), no such evidence exists. Rather, “in the

Early Republic, as today, the uniform practice was for

state and federal elections to follow the same rules.”

Pet Br. 37. Under this reading of these state constitutions, more than half of all state constitutions

adopted between 1787 and 1830 directly regulated

federal elections—despite being under no obligation

to do so.

Petitioners, moreover, have no answer to the several states—like Maryland and Virginia—that expressly regulated federal elections constitutionally.

See supra at 13-14. Certainly, Petitioners make no

16

effort to explain their theory for how both James Madison and Chief Justice John Marshall so badly misunderstood the Elections Clause when they voted to

adopt the Virginia Constitution. See supra at 13-14.

b. Faced with widespread state practice that undermines their position, Petitioners are left only with

Joseph Story’s anomalous comments at the 1820 Massachusetts convention—decades after the text was

first framed and ratified. Pet. Br. 2, 15; see also Morley, supra, at 39-40. But Petitioners agree this Court

has refused to “stake [its] interpretation” of the Constitution on outlier state practices or idiosyncratic individual views. Pet. Br. 38 (quoting District of Columbia v. Heller, 554 U.S. 570, 632 (2008)). Yet that is

precisely what Petitioners ask this Court to do.

Story’s comments are too little, too late to shed

light on the original public meaning of the Elections

Clause. Joseph Story, of course, was “not a member

of the Founding generation.” U.S. Term Limits, Inc.

v. Thornton, 514 U.S. 779, 856 (1995) (Thomas, J., dissenting). “Rather than representing the views of the

founding generation,” Story’s views thus “represent

only his own understanding.” Id. And, as Justice

Thomas has explained, “in a range of cases concerning

the federal/state relation”—like this one—this Court

has found Story’s views to be “more nationalist than

the Constitution warrants.” Id. His views therefore

cannot displace those of the Founding-era public. See,

e.g., Honorable Amy Coney Barrett, Assorted Canards

of Contemporary Legal Analysis: Redux, 70 Case W.

Res. L. Rev. 855, 864 (2020) ( “Originalists . . . care

about what people understood the words to mean at

the time that the law was enacted because those people had the authority to make law.”).

17

A look at the actual Framers’ conduct at state constitutional conventions betrays Petitioners’ cherrypicking. While relying heavily on Joseph Story’s

views from 1820, Petitioners never address John

Dickinson’s role in framing the Articles, the Elections

Clause, and multiple state constitutions regulating

the selection of federal representatives. See supra at

12-14. The Forrest Gump of these constitutional provisions is conspicuously absent from Petitioners’ brief.

Petitioners similarly omit any discussion of James

Madison’s own 1830 vote to adopt a Virginia constitution that directly and expressly regulated congressional apportionment, despite an objection from another delegate based on the Petitioners’ reading of the

Elections Clause. See Smith, supra, at 486-87. Unlike Story, Madison was not only a member of the

Founding generation—he was a member of the committee that drafted the analogously worded Electors

Clause. See supra at 13-14. And, unlike Story, his

vote was consistent with widespread state practice

dating back to the Articles of Confederation. See supra at 8-14. And, finally, unlike Story, this Court has

repeatedly held Madison’s views on the structure of

the national government to be highly instructive of

the original public meaning—as he was both a chief

architect of and campaigner for the Constitution. See,

e.g., Gregory v. Ashcroft, 501 U.S. 452, 457 (1991); see

also Chiafalo v. Washington, 140 S. Ct. 2316, 2320,

2326 (2020); Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2197 (2020).

c. Petitioners also rely heavily on early practice relating to the appointment of Senators. See Pet. Br.

30-35; see also Morley, supra, at 61-65. But that reliance misunderstands the relationship between the

18

appointment of Senators and the meaning of the Elections Clause.

To start, Petitioners appear, at various points, to

suggest that states were interpreting the Elections

Clause when appointing Senators in the Founding

Era and the fifty-year period following ratification.

But until the ratification of the Seventeenth Amendment in 1913, the selection of Senators was expressly

committed to the sole discretion of state legislatures

by a separate, senate-specific federal constitutional

provision. Until then, Senators were directly “chosen

by the Legislature” of each state under Article I, Section 3. See U.S. Const. art. I, § 3, cl. 1. Early state

practice concerning the method of choosing is thus interpreting this clause, not solely the Elections Clause.

Not only was the appointment of Senators additionally regulated by an entirely different Clause, but

that Clause and the Elections Clause have entirely

different structures, which makes sense of any difference in early understandings of the two. In particular, the Elections Clause requires state legislatures to

write federal election rules through ordinary legislation, whereas the Senator-Appointment Clause required state legislatures to exercise a special federal

function different from ordinary legislation—i.e., to

appoint senators themselves.

Specifically, the Elections Clause directs that

state legislatures (and, if it so chooses, Congress) are

to prescribe, make, or alter “Regulations.” This language shows that the Framers envisioned legislatures

and Congress acting in their usual lawmaking capacity, subject to all usual limitations thereon. See Ariz.

State Legislature v. Ariz. Indep. Redistricting Comm’n

19

(“AIRC”), 576 U.S. 787, 806-08 (2015); id. at 844 (Roberts, C.J., dissenting). As this Court has explained,

“[p]rescribing regulations to govern the conduct of the

citizen, under the first clause, and making and altering such rules by law, under the second clause, involve action of the same inherent character,” i.e., “the

making of laws.” Smiley v. Holm, 285 U.S. 355, 367

(1932); see AIRC, 576 U.S. at 806. These words together “place[] the intent of the whole provision”—to

direct the exercise of lawmaking authority—“in a

strong light.” Smiley, 285 U.S. at 367; see also Michael Weingartner, Liquidating the Independent

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

(forthcoming 2023), at 28.5 By contrast, at the Founding, Senators, unlike the President and members of

the House, were not elected via any sort of popular

representative process. Instead, Article I, Section 3

empowers state legislatures to “cho[ose]” two Senators themselves. U.S. Const. art. I, § 3.

This difference in language, structure, and design

makes all the difference in this case. It may make

sense to suppose that when the federal constitution

conscripts state legislatures for a uniquely federal

function—i.e., not to enact legislation but to appoint

Senators—the ordinary state constitutional strictures

that apply to ordinary legislation may not apply. But

when a state legislature carries out its quintessential

lawmaking function, it must do so “in accordance with

the method which the State has prescribed for legislative enactments,” AIRC, 576 U.S. at 807 (quoting

5 Draft available at https://papers.ssrn.com/sol3/papers.cfm?ab-

stract_id=4044138.

20

Smiley, 285 U.S. at 367), including constitutional constraints on its authority. State legislatures “owe their

existence to” constitutions, Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 308 (C.C.P. 1795), and

thus the distribution of legislative power “by a state

among its governmental organs is commonly, if not

always, a question for the state itself,” Highland

Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612 (1937).6

Petitioners do not (at 32-35) ever address these obvious variations in structure or language, but these

differences render their heavy reliance on the early

understanding of legislative appointment of Senators

entirely irrelevant.7 At the same time, these structural and linguistic differences explain the difference

6 This is so whether “Legislature” is understood broadly to mean

“the power that makes laws” or narrowly to refer to an institutional lawmaking body, compare AIRC, 576 U.S. at 813-14, with

id. at 828 (Roberts, C.J., dissenting). Rejecting the independent

state legislature theory does not entail rejecting the proposition

that “‘the Legislature’ in the Elections Clause is the representative body which makes the laws of the people.” Id. at 827 (Roberts, C.J., dissenting).

7 Petitioners’ passing reliance on Article V and the Republican

Guarantee Clause is misplaced for the same reason. Pet. Br. 19,

23. Article V provides that constitutional amendments may be

“ratified by the Legislatures of three fourths of the several

States.” U.S. Const. art. V (emphasis added). As this Court has

explained more than once, “the ratifying function” stands in

stark contrast to “the ordinary business of legislation,” because

it is an instance in which state legislatures are exercising their

unique power to vote to amend federal constitutional law. AIRC,

576 U.S. at 806 (quoting Hawke v. Smith, 253 U.S. 221, 229

(1920)). The Republican Guarantee Clause, likewise, provides

for the protection of states “against domestic Violence” “on Application of the Legislature, or of the Executive (when the Legislature cannot be convened).” U.S. Const. art. IV, § 4. Making an

21

in early historical practice—as explained at length

above, regardless how early states treated the appointment of Senators, they routinely adopted state

constitutions that governed federal-election-related

legislation. At the end of the day, there is simply no

plausible way to reconcile Petitioners’ theory with

that early historical practice and understanding.

D. Petitioners’ Supposed Blockbuster Evidence Is Fraudulent.

Finally, Petitioners have fallen prey to the trap of

bad history in such an egregious fashion that it casts

doubt upon the overall rigor of their analysis. They

point (at 2, 15) to a piece of what they believe is blockbuster evidence—the Pinckney Plan—which they assert shows that an early draft of the Constitution assigned power under the Elections Clause to “States”

and that this was rejected in favor assigning power to

the “Legislature[s] thereof.” This, Petitioners claim,

shows “the Committee of Detail deliberately changed

the Constitution’s language to specify that state legislatures were to exercise that power, not any other

state entity and not the State as a whole.” Pet. Br. 2

(emphasis in original). As shown below, the Pinckney

Plan is fabricated.

To be clear: The Pinckney Plan would not matter

even if it were real. All it purports to show is that the

Framers reverted to the language of the Articles of

Confederation. That is affirmative evidence against

“application” for protection is not a traditional lawmaking function—a point underscored by the fact that the Constitution delegates it to “the Executive” as a backstop in the event of the legislature’s unavailability.

22

Petitioners’ position: If the Framers purposefully altered the draft’s language to adopt the Articles’ language, the only plausible conclusion is that they also

meant to adopt the prevailing understanding of that

language. And that prevailing understanding forecloses Petitioners’ reading for the reasons already explained. See supra at 7-10. Moreover, the Framers’

not adopting the Pinckney Plan’s language (were it

real) is fully explained without regard to the “independence” of state legislatures from constitutional

constraints—the Plan’s language would have permitted states to empower governors to call regular elections by “writ of election,” which the Framers explicitly sought to avoid. See supra 4-7. And, of course,

the Pinckney Plan argument is unresponsive to the

wealth of contrary early state practice described

above. See supra at 8-14.

But the more fundamental problem is that the

Pinckney Plan is a notorious fake. As one scholar recently put it, the plan is “the most intractable constitutional con in history.” See Lynn Uzzell, The Deep

South’s Constitutional Con, 53 St. Mary’s L.J. 711,

714 (2022). The “con” dates back to 1818, when John

Quincy Adams asked Charles Pinckney for a copy of

the draft constitution he submitted as Adams was

compiling the records of the Constitutional Convention.8 The “draft” he enclosed in response is what Petitioners now cite as the Pinckney Plan. But that

“draft” has since repeatedly been found to be not an

early draft of the Constitution, but an after-the-fact

8 See Letter from Charles Pinckney to John Quincy Adams (Dec.

12, 1818), in 3 The Writings of James Madison 22 (Gaillard Hunt

ed., 1902).

23

forgery concocted by Pinckney to enlarge his own perceived role in framing the Constitution by making his

purported “early draft” closely resemble the final version.9

Madison was immediately suspicious of the document and especially dubious of its draft of the Elections Clause. When Madison saw the plan included

in the papers for the Committee of Detail, he feared

“considerable error had crept into the paper.” 10

Pinckney notoriously opposed direct elections for

members of the House. See S. Sidney Ulmer, James

Madison and the Pinckney Plan, 9 S. Carolina L. Rev.

415, 428 (1957). Yet Pinckney’s purported early draft

proposed that “Each State” prescribe “the time &

manner of holding Elections by the People for the

house of Delegates.” 3 The Records of the Federal

Convention of 1787, at 597 (Max Farrand ed., 1911)

(hereinafter, “Farrand, Records”) (emphasis added).

Obviously incredulous that such a vocal opponent of

9 Although two historians claim to have recovered the original

plan Charles Pinckney actually submitted to the convention, neither such copy includes the language Petitioners quote. See

John Franklin Jameson, Studies in the History of the Federal

Convention of 1787, 1 Ann. Rep. Am. Hist. Ass’n 87, 117 (1903)

(purporting to have recovered a portion of the Pinckney Plan);

Andrew C. McLaughlin, Sketch of Charles Pinckney’s Plan for a

Constitution, 1787, 9 Am Hist. Rep. 735 (1904) (similar).

10 James Madison, Appendix 2, Note of Mr. Madison to the Plan

of Charles Pinckney, May 29, 1787, in The Papers of James Madison v, vi (Henry D. Gilpin ed., 1840); see also Letter from Jared

Sparks to James Madison (May 5, 1830), in 3 The Records of the

Federal Convention of 1787, at 482 (Max Farrand ed., 1911) (reporting that John Quincy Adams told him that Rufus King had

questioned the Pinckney Plan before his death).

24

popular elections would have proposed them in an initial draft of the constitution, Madison pointed out

this discrepancy on no less than five occasions in explaining why Pinckney’s 1818 draft was a sham. See

Ulmer, supra, at 428.

Petitioners (at 2, 15) quote and cite the Pinckney

Plan as it appears in Max Farrand’s The Records of

the Federal Convention of 1787. But they failed to

notice that Farrand himself noted when he published

that volume that “it is established beyond all doubt

that this draft does not represent Pinckney’s original

plan.” 3 Farrand, Records, at 603-04. Farrand’s disclaimer reflected over a century of historical consensus. Since the Founding Era, historians have consistently decried the Pinckney Plan as a “historical

lie[],” 11 a “fraudulent document,” 12 and a “so-called

draft [that] has been so utterly discredited that no instructed person will use it as it stands as a basis for

constitutional or historical reasoning.”13 Originalism

requires original documents; the Pinckney Plan is not

one.

***

The overwhelming weight of textual and historical

evidence thus shows that the Founding generation actively sought to check state legislatures’ power over

federal elections, including through state constitutions. In the face of that evidence, Petitioners can rely

only on a fraudulent document, atextual readings of

11 Paul Leicester Ford, Pinckney’s Draft of a Constitution, 60 The

Nation, Jun. 14, 1895, at 458, 459.

12 Clinton Rossiter, 1787: The Grand Convention 331 n.* (1966).

13 Jameson, supra, at 117.

25

state constitutions, the idiosyncratic views of cherrypicked individuals, and irrelevant state practice concerning an entirely separate constitutional provision.

The text and historical context thus both preclude Petitioner’s reading.

II. Subsequent Historical Practice Confirms

that State Legislative Regulation of Elections Is Subject to State Constitutional Limits and Judicial Review.

1. Even assuming arguendo that the text and original understanding of the Elections Clause were ambiguous, longstanding historical practice conclusively

refutes Petitioners’ arguments. “Long settled and established practice may have great weight in a proper

interpretation of constitutional provisions.” Chiafalo,

140 S. Ct. at 2326 (quotation marks omitted); see also,

e.g., Trump v. Mazars USA, LLP, 140 S. Ct. 2019,

2031 (2020); Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091

(2015); N.L.R.B. v. Noel Canning, 573 U.S. 513, 520

(2014). See generally William Baude, Constitutional

Liquidation, 71 Stanford L. Rev. 1 (2019). That is because, as Madison explained, “[a]ll new laws, though

penned with the greatest technical skill, and passed

on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until

their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” The

Federalist No. 37, at 236 (James Madison); cf. Baude,

supra, at 36-43 (comparing liquidation to traditional

understanding of stare decisis). Such “discussions

and adjudications” offer evidence of original meaning,

to be sure. More than that, however, courses of deliberate, constitutionally informed practice that have

culminated in a settlement can fill gaps in ambiguous

26

text in a way that carries binding force. Baude, supra,

at 54.

Over the past two centuries, states have consistently engaged in “discussions and adjudications”—

among other things, through (i) state courts reviewing

the constitutionality of state election laws and (ii)

states adopting by referendum constitutional amendments governing elections. Congress, too, frequently

weighed in while (i) evaluating constitutions of states

seeking admission to the Union and (ii) judging the

qualifications of its members (i.e., adjudicating contested elections). This “long established practice”

overwhelmingly confirms that the Elections Clause

confers authority on state legislatures subject to state

constitutional restraints and judicial review.

Chiafalo, 140 S. Ct. at 2326.

i. Judicial Review Under State Constitutional Provisions. Dating back to the Civil War era, state courts

have regularly reviewed—and sometimes struck

down—state laws regulating federal elections. These

include “laws relating to congressional redistricting,

voter registration, absentee voting, secret ballots, and

voting machines,” Weingartner, supra, at 41 &

nn.322-326, and more recently, laws concerning

“Voter ID, felon disenfranchisement, … polling hours,

… ballot access, and campaign finance,” id. at 42-43

& nn.331-339. To take one example, in 1865, the Supreme Court of Michigan struck down state legislation allowing soldiers to cast out-of-state votes as inconsistent with the state constitution’s requirement

of in-person voting. See People ex rel. Twitchell v.

Blodgett, 13 Mich. 127 (Mich. 1865). Everything

about the case—from its existence to its disposition—

is inconsistent with the idea that the Elections Clause

27

confers arbitrary power on state legislatures to regulate elections. The same is true of challenges to similar quintessential “manner” laws heard and decided

in other states around the same time.14

For another example, in 1910, the South Dakota

Supreme Court rejected an argument that the state’s

legislature could prescribe election regulations without abiding by South Dakota’s constitutional referendum requirement. State ex rel. Schrader v. Polley, 127

N.W. 848, 849-52 (S.D. 1910). It explained that notwithstanding the use of the word “Legislature” in the

Elections Clause, if the state constitution “has fixed

limits, the Legislature cannot transcend them, but

must act within the limits prescribed, and if it goes

beyond them its action is to that extent absolutely

void.” Smith, supra, at 531 (quoting Polley, 127 N.W.

849-52). The inconsistency of this reasoning with Petitioners’ theory is obvious. Here, and in dozens of

similar cases, see supra at 26, state courts explicitly

or implicitly rejected the notion that the federal Constitution displaces their power to review election

laws.

Against this evidence, Petitioners marshal merely

five state cases decided over the span of a century.

Pet. Br. 42-43. Five cases cannot tip the historical

scales, see Baude, supra, at 16, especially not where

several are at best dubious support for Petitioners’

theory. See Smith, supra, at 519-521 (discussing In re

Opinions of Justices, 45 N.H. 595, 601 (1864)); id. at

14 See Bourland v. Hildreth, 26 Cal. 161 (Cal. 1864); Opinion of

the Judges, 30 Conn. 591 (Conn. 1862); Morrison v. Springer, 15

Iowa 304 (Iowa 1864); Lehman v. McBride, 15 Ohio St. 573 (Ohio

1863); State ex rel. Chandler v. Main, 16 Wis. 398 (Wis. 1863);

Weingartner, supra, at 41 & nn.320-321 (citing the foregoing).

28

530 (discussing In re Plurality Elections, 8 A. 881, 882

(R.I. 1887)); Parsons v. Ryan, 60 P.2d 910, 912 (Kan.

1936) (rejecting argument, likely on the merits, that

elector ballot eligibility law was “discriminatory, unfair, illegal, or unconstitutional”).

ii. State Ballot Initiatives. For more than a century, virtually all states have utilized ballot initiatives to adopt constitutional provisions regulating

federal elections. State constitutional amendments

adopted through popular referenda touch on many aspects of federal election regulation, “including registration, primaries, ballots, voting machines, absentee

voting, voter ID, and election integrity,” substantive

voting rights, and redistricting commissions.

Weingartner, supra, at 39-40 & nn.309-318; see also

AIRC, 576 U.S. at 822 (describing examples of initiatives in California, Ohio, and Oregon). In many instances, state legislatures have endorsed such

amendments by drafting and referring them for popular approval. See Weingartner, supra, at 45-46 &

nn.351-374. There is thus no question that state constitutional limits on federal election regulations have

long had “the acquiescence” both “of the people at

large” and their state representatives. Baude, supra,

at 19 (quoting Letter from James Madison to Lafayette (Nov. 1826), reprinted in 3 Letters and Other

Writings of James Madison 542 (Philadelphia, J.B.

Lippincott & Co. 1865)).

iii. Congressional Approval. Congress, which possesses “ultimate” authority to regulate elections of its

members, see The Federalist No. 59, at 362, has also

long acted consistent with the understanding that

state election laws are subject to state constitutions.

29

In reviewing state constitutional provisions for purposes of determining admission to the Union, Congress has never rejected a provision regulating federal

elections. See Weingartner, supra, at 53-55 & nn.417424. In exercising its power to judge the qualifications of its members, see U.S. Const. art. I, § 5, cl. 5,

the House has consistently accepted arguments to

seat or not seat representatives based on state constitutional provisions. See id. at 55-59.15 And, in exercising its own power under the Elections Clause, Congress has assumed the applicability of state constitutional restrictions: After the Civil War, Congress debated extensively whether to make state constitutional “by ballot” voting requirements—already enshrined in many antebellum constitutions, see Smith,

supra, at 489-90—a condition of readmission to the

Union. No one at the time suggested that such requirements would have violated the Elections Clause.

See Weingartner, supra, at 52-53.

2. Petitioners purport to justify disregarding two

hundred years of post-Founding history by focusing

on judicial review under so-called “substantive” constitutional provisions that they describe as “abstract

broadly worded commands,” such as the “free” and

“equal” election guarantees at issue in this case. See

Pet. Br. 3-4. In their account, cases arising under

15 The comparatively few cases in which the independent state

legislature theory was invoked are “equivocal at best as to Congress’s views.” Weingartner, supra, at 60. For example, Petitioner’s one contrary example, the Baldwin v. Trowbridge case,

Pet. Br. 43, is not to the contrary. See Smith, supra, at 523-25

(examining Trowbridge “was not as strong an endorsement of

the [Independent State Legislature] Doctrine as has been commonly thought,” and “[i]n one important respect, … actually undercuts the” notion that the doctrine was the prevailing view).

30

what they deem similar provisions are the only relevant evidence in this case. But Petitioners offer no

historical support for the substantive/procedural distinction that they frame in (ironically) highly abstract

terms. In other words, they do not explain why “substantive” regulations, Pet. Br. 3, were originally understood to offend the Elections Clause while other

constitutional provisions were not, or provide guidance as to how to tell the difference. Nor do they

ground their specific concerns about state judicial interpretation of “abstract broadly worded commands”

in text or history.

Certainly, the Elections Clause itself makes no

such distinction between substance and procedure or

abstractness or concreteness. See supra Part I.A.

Textually, “Legislature” either denotes an entity that

is constitutionally created, defined, and limited, or

one that is not. In conceding that “each State’s constitution may properly govern such … questions as

whether a bicameral vote is required to enact a law

[and] whether the legislation is subject to gubernatorial veto,” Pet. Br. 24, Petitioners effectively concede

that the latter position is unsupportable. The concession is fatal.

In fact, there is historical evidence of judicial, popular, and Congressional acceptance of constitutional

provisions similar to the North Carolina provisions at

issue here. To give an example of each: In Morrison

v. Lamarre, the Supreme Court of Rhode Island considered and rejected an argument that a law regulating voting machines violated a state constitutional requirement that “[a]ll free governments are instituted

for the protection, safety and happiness of the people.

All laws, therefore, should be made for the good of the

31

whole; and the burdens of the state ought to be fairly

distributed among its citizens.” 65 A.2d 217, 223 (R.I.

1949) (quoting R.I. Const. art. I, § 2 (1843)). In 2014,

Illinois adopted by popular ballot initiative a constitutional amendment prohibiting discrimination in

elections: “No person shall be denied the right to register to vote or to cast a ballot in an election based on

race, color, ethnicity, status as a member of a language minority, national origin, religion, sex, sexual

orientation, or income.” Ill. Const. art. III, § 8. And

Congress admitted Arkansas and Illinois to the Union

with constitutional provisions guaranteeing substantive rights like those at issue here. Arkansas’s 1836

constitution provided that “all elections shall be free

and equal.” Ark. Const. art. II, § 5 (1836). And Illinois’ 1818 constitution provided that “elections shall

be free and equal.” Ill. Const. art. VIII, § 5 (1818).

None of these developments would make any sense if

state legislatures were understood to be somehow

bounded by “procedural” restrictions but unbounded

by “substantive” constitutional restrictions on election regulations.

For the foregoing reasons, even if the Court concludes that the text and original understanding of the

Elections Clause are ambiguous, Petitioners’ construction should be rejected based on “[l]ong settled

and established practice.” Chiafalo, 140 S. Ct. at

2326.

CONCLUSION

The Court should affirm the decision of the North

Carolina Supreme Court.

32

Respectfully submitted.

HELEN WHITE

PROTECT DEMOCRACY

PROJECT

2020 Pennsylvania Ave.

NW, #163

Washington, DC 20006

October 26, 2022

ANTON METLITSKY

Counsel of Record

BRUCE PETTIG

O’MELVENY & MYERS LLP

7 Times Square

New York, NY 10036

(212) 326-2000

ametlitsky@omm.com