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 briefOct 26, 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.,
v.
REBECCA HARPER, ET AL.,
Petitioners,
Respondents.
On Writ of Certiorari to
the Supreme Court of North Carolina
BRIEF OF DEMOCRACY AND RACE SCHOLARS
AS AMICI CURIAE IN SUPPORT OF
RESPONDENTS
GUY-URIEL E. CHARLES
T. ALORA THOMASLUNDBORG
HARVARD LAW SCHOOL
1563 Massachusetts Ave.
Cambridge, MA 021387
Additional counsel listed
on inside cover
NEIL STEINER
DECHERT LLP
1095 Ave. of the Americas
3 Bryant Park
New York, NY 10036
ANGELA M. LIU*
DECHERT LLP
35 West Wacker Dr.
Suite 3400
Chicago, IL 60601
(312) 646-5816
angela.liu@dechert.com
* Counsel of Record
STEFANIE A. TUBBS
CHRISTOPHER J. MERKEN
JENNIFER HARCHUT
DECHERT LLP
Cira Centre
2929 Arch St.
Philadelphia, PA 19104
October 26, 2022
GREGORY P. LUIB
DECHERT LLP
1900 K St., N.W.
Washington, DC 20006
JACOB R. PORTER
DECHERT LLP
515 Congress Ave.
Suite 1400
Austin, TX 78701
TABLE OF CONTENTS
INTEREST OF THE AMICI CURIAE ....................... 1
SUMMARY OF ARGUMENT ..................................... 3
ARGUMENT ............................................................... 5
I. The Elections Clause Does Not Free State
Legislatures from the Fundamental Structural
Check and Balance of State-Court Review. .......... 5
A. State Courts Have General Jurisdiction
Regardless of the Elections Clause. ................. 5
B. The ISLT Would Upend Deeply Rooted
Principles of Federalism. .................................. 9
C. The Long-Standing Role of State Courts in
Reviewing Election Laws Lays Bare the Lack
of Historical Support for the ISLT. ................ 12
i. Historically, State Courts Exercised Judicial
Authority in the Election Law Context. ... 13
ii. The Historical Exercise of Judicial Review of
Congressional Elections Before OnePerson, One-Vote Confirms the Invalidity
of the ISLT. ................................................ 18
iii. The Historical Exercise of Judicial
Authority Over Congressional Elections
Since One-Person, One-Vote Confirms the
ISLT’s Invalidity. ...................................... 20
II. Petitioners’ Articulation of the ISLT Lacks a
Limiting Principle and Would Lead to Chaos. ... 24
A. Petitioners Fail to Provide a Limiting
Principle and Require the Court to Overrule
Precedent. ....................................................... 24
ii
B. Adopting the ISLT Would Lead to Chaos in
the Administration of, and Litigation
Surrounding, Elections. .................................. 28
CONCLUSION .......................................................... 33
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Adams v. DeWine,
195 N.E.3d 74 (Ohio 2022)................................... 22
Aldinger v. Howard,
427 U.S. 1 (1976) .................................................... 7
Ariz. State Legis. v. Ariz.Indep. Redistricting
Comm’n,
576 U.S. 787 (2015) ........................ 8, 24, 25, 26, 27
Baker v. Carr,
369 U.S. 186 (1962) ........................................ 18, 20
Bank Markazi v. Peterson,
578 U.S. 212 (2016) ................................................ 6
Blanchard v. Stearns,
46 Mass. 298 (1842) ............................................. 15
Bond v. United States,
564 U.S. 211 (2011) ............................................ 5, 6
Bourland v. Hildreth,
26 Cal. 161 (1864) .......................................... 14, 19
Brown v. Saunders,
166 S.E. 105 (Va. 1932) ........................................ 19
Carstens v. Lamm,
543 F. Supp. 68 (D. Colo. 1982) ........................... 26
iv
City of Owensboro v. Hickman,
14 S.W. 688 (Ky. 1890)......................................... 16
State ex rel. Davis v. Hildebrant,
114 N.E. 55 (Ohio 1916) ......................................... 8
De Walt v. Bartley,
146 Pa. 529 (1892)................................................ 17
Dearborn Twp. v. Dail,
334 Mich. 673 (1952) .............................................. 7
Dells v. Kennedy,
49 Wis. 555 (1880) ................................................ 15
State ex rel. Ellis v. Brown,
33 S.W.2d 104 (Mo. 1930) .................................... 17
Evenwel v. Abbott,
578 U.S. 54 (2016) ............................................... 11
Ex parte Mackey,
15 S.C. 322 (1881) .......................................... 19, 20
In re Fairchild,
45 N.E. 943 (N.Y. 1897) ....................................... 20
Fisher’s Negroes v. Dabbs,
14 Tenn. 119 (1834) ............................................... 7
Gentsch v. State ex rel. McGorray,
72 N.E. 900 (Ohio 1904) ....................................... 14
Green v. Lesse of Neal,
31 U.S. (6 Pet) 293 (1832) .................................... 10
v
Growe v. Emison,
507 U.S. 25 (1993) .......................................... 11, 13
Hall v. Moreno,
270 P.3d 961 (Colo. 2012) .................................... 21
Harkenrider v. Hochul,
No. 60, --- N.E.3d ---, 2022 WL 1236822
(N.Y. Apr. 27, 2022) ............................................ 22
Jepsen v. Vigil-Giron,
No. D0101 CV 2001 02177, 2002 WL 35459960
(N.M. 1st Jud. Dist. Jan. 4, 2002) ....................... 21
Johnson v. Wis. Elections Comm’n,
967 N.W.2d 469 (Wis. 2021) .................... 21, 25, 26
Kamper v. Hawkins,
3 Va. 20 (Va. Gen. Ct. 1793) .................................. 7
Kinneen v. Wells,
11 N.E. 916 (Mass. 1887) ..................................... 15
State ex rel. Klein v. Hillenbrand,
131 N.E. 29 (Ohio 1920) ....................................... 15
Koenig v. Flynn,
285 U.S. 375 (1932) .............................................. 25
League of Women Voters of Fla. v. Detzner,
172 So. 3d 363 (Fla. 2015) ............................. 22, 23
League of Women Voters of Pa. v. Commonwealth of
Pa.,
178 A.3d 737 (Pa. 2018) ....................................... 22
vi
Levitt v. Maynard,
202 A.2d 478 (N.H. 1964)..................................... 21
State ex rel. McGrael v. Phelps,
128 N.W. 1041 (Wis. 1910) .................................. 16
Mims v. Arrow Fin. Servs., LLC,
565 U.S. 368 (2012) ................................................ 8
Monroe v. Collins,
17 Ohio St. 665 (1867).......................................... 14
Moran v. Bowley,
179 N.E. 526 (Ill. 1932) ........................................ 19
Morris v. Powell,
25 N.E. 221 (Ind. 1890) ........................................ 17
New State Ice Co. v. Leibmann,
285 U.S. 262 (1932) ............................................. 11
New York State Rifle & Pistol Ass’n, Inc. v. Bruen,
142 S. Ct. 2111 (2022) .................................... 12, 13
Ogden v. Witherspoon,
3 N.C. 227 (1802).................................................... 6
Perkins v. Luca,
246 S.W. 150 (Ky. 1922)....................................... 18
Perry v. Del Rio,
67 S.W.3d 85 (Tex. 2001) ..................................... 21
People ex rel. Twitchell v. Blodgett,
13 Mich. 127 (1865) .............................................. 14
vii
Railroad Comm’n of Texas v. Pullman Co.,
312 U.S. 496 (1941) .............................................. 10
In re Reapportionment Comm’n,
268 A.3d 1185 (Conn. 2022) ................................. 21
Respublica v. Oswald,
1 U.S. 319 (Pa. 1788) ............................................. 7
Reynolds v. Sims,
377 U.S. 533 (1964) ........................................ 18, 20
Rison v. Farr,
24 Ark. 161 (1865) .................................................. 7
Rucho v. Common Cause,
139 S. Ct. 2484 (2019) ...................................... 4, 22
State ex rel. Runge v. Anderson,
76 N.W. 482 (Wis. 1898) ...................................... 16
Smiley v. Holm,
285 U.S. 355 (1932) .................................... 8, 24, 25
Southall v. Griffith,
37 S.W. 577 (Ky. 1896)......................................... 20
State v. Brill,
100 Minn. 499 (1907) ............................................. 6
State v. Jefferson Cnty. Comm’rs,
17 Fla. 707 (. 1880)......................................... 16, 17
State v. Nichols,
26 Ark. 74 (1870) .................................................... 5
viii
State of Ohio ex rel. Davis v. Hildebrant,
241 U.S. 565 (1916) .......................................... 8, 26
Stephenson v. Boards of Election Comm’rs,
76 N.W. 914 (Mich. 1898) .................................... 20
Storer v. Brown,
415 U.S. 724 (1974) .............................................. 32
Walbrecht v. Ingram,
175 S.W. 1022 (Ky. 1915)..................................... 18
State ex rel. Wallace v. Bone,
304 N.C. 591 (1982)................................................ 5
Warren v. City of Charlestown,
68 Mass. 84 (1854) ......................................... 18, 19
Watts v. Carter,
355 S.W. 2d 657 (Ky. 1962).................................. 20
Wattson v. Simon,
970 N.W.2d 56 (Minn. 2022) ................................ 21
State ex rel. Webber v. Felton,
84 N.E. 85, (Ohio 1908) .................................. 14, 15
Wilkins v. Davis,
139 S.E.2d 849 (Va. 1965).................................... 21
Williams v. Kerner,
195 N.E.2d 680 (Ill. 1963) .................................... 26
Williams v. Whiting,
11 Mass. 424 (1814) ............................................. 15
ix
Woart v. Winnick,
3 N.H. 473 (1826) ................................................... 6
Wolfe v. McCaull,
76 Va. 876 (1882) ................................................... 5
Constitutional Provisions
U.S. CONST. art. I, § 4 .......................................... 25, 30
COLO. CONST. art. V, § 44.4(5)(b) .............................. 23
CONN. CONST. art. III, § 6(d) ..................................... 23
IND. CONST. art 2, § 1 ................................................ 17
KY. CONST. § 6............................................................ 16
N.J. CONST. art. II, § 2............................................... 23
N.Y. CONST. art III, § 4.............................................. 23
N.Y. CONST. art III, § 5.............................................. 23
OHIO CONST. art XIX, § 3 .......................................... 24
UTAH CONST. art. I, § 17 ............................................ 29
VA. CONST. art II, § 6-A ............................................. 24
WASH. CONST. art. II, § 43 ......................................... 23
Statutes
MICH. COMP. LAWS ANN. § 168.759 et seq. (West
2020) ..................................................................... 29
TENN. CODE. ANN. §20-18-101 ................................... 24
x
UTAH CODE ANN. § 20A-3a-203(2)(b) (West 2020).... 28
VA. CODE ANN. § 30-399 ............................................ 24
Other Authorities
Tabatha Abu El-Haj, Changing the People: Legal
Regulation and American Democracy, 86 N.Y.U.
L. REV. 1 (2011) .................................................... 13
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 (2021) .......................................... 9, 10
William Baude, Constitutional Liquidation,
71 STAN. L. REV. 1 (2019) ............................... 12, 13
Guy-Uriel E. Charles & Luis Fuentes-Rohwer,
Chiafalo: Constitutionalizing Historical Gloss
in Law and Democratic Politics, 15 HARV. L. &
POL’Y REV. 15 (2020) ............................................ 12
ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 5.1
(8th ed. 2021).......................................................... 7
Dan T. Coenen, Constitutional Text, Founding-
Era History, and the Independent-StateLegislature Theory, 57 GA. L. REV.
(forthcoming 2023), draft available at
https://ssrn.com/abstract=4223731 ................. 9, 31
Jacob M. Grumbach, Laboratories of Democratic
Backsliding, Working Paper (2022), available
at https://csap.yale.edu/sites/default/files/files/
grumbach-apppw-4-20-22.pdf .............................. 11
xi
SAMUEL ISSACHAROFF, PAMELA S. KARLAN, RICHARD
H. PILDES, NATHANIEL PERSILY & FRANITA
TOLSON, THE LAW OF DEMOCRACY: LEGAL
STRUCTURE OF THE POLITICAL PROCESS (6th ed.
2022) ............................................................... 31, 32
Leah M. Litman & Katherine Shaw, Textualism
Judicial Supremacy, and the Independent State
Legislature Theory, 2022 WIS. L. REV.
(forthcoming 2022), draft available at
https://ssrn.com/abstract=4141535 ................. 9, 10
Estelle H. Rogers, The National Voter Registration
Act Reconsidered, AM. CONST. SOC’Y FOR L. &
POL’Y (Nov. 2011), https://www.acslaw.org/wpcontent/uploads/2018/04/Rogers__NVRA_Reconsidered_1.pdf ................................ 28
Carolyn Shapiro, The Independent State Legislature
Theory, Federal Courts, and State Law, 90 U.
CHI. L. REV. (forthcoming 2023), draft available
at https://ssrn.com/abstract=4047322 ..... 10, 28, 30
Judith Shulevitz, An Election Without Chaos
Will Be a Miracle, THE ATLANTIC, Oct. 15, 2020,
https://www.theatlantic.com/ideas/archive/2020/1
0/five-hours-training-and-285-guarddemocracy/616719/ ............................................... 30
Todd Spangler, Secretary of State: All Michigan
Voters Will Get Absentee Ballot Applications at
Home, DETROIT FREE PRESS (May 20, 2020, 7:15
AM) ....................................................................... 29
xii
Franita Tolson, The “Independent” State Legislature
in Republican Theory, (2022), available at:
https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=4226098............................................ 27
1
INTEREST OF THE AMICI CURIAE 1
Amici curiae are law professors who specialize in
election law, the law of democracy, and the
intersection of law and race. 2 They have studied the
history of state legislatures and their roles in
redistricting, especially the structure and tradition of
redistricting. Amici submit this brief to help the
Court understand the historically hollow foundation
of the Independent State Legislature Theory (“ISLT”),
and to explain why Petitioners’ arguments supporting
the ISLT are fundamentally flawed.
Amicus Guy-Uriel Charles is the Charles J.
Ogletree Jr. Professor of Law at Harvard Law School.
Amicus Tabatha Abu El-Haj is a Professor of Law
at Drexel University’s Thomas R. Kline School of Law.
Amicus Rabia Belt is an Associate Professor of Law
and Associate Professor (by courtesy) of History at
Stanford Law School.
Amicus Yasmin Dawood is a Professor of Law and
Canada
Research
Chair
in
Democracy,
Constitutionalism, and Electoral Law at the
University of Toronto Faculty of Law.
1 No counsel for any party authored this brief in whole or in part.
No entity or person other than amici curiae or their counsel made
any monetary contribution toward the preparation and
submission of this brief. All parties have given blanket consent
the participation of amicus curiae.
University affiliation is provided for identification purposes
only; all amici are participating in their individual capacities and
not on behalf of their institutions.
2
2
Amicus Michael S. Kang is the Class of 1940
Professor of Law at Northwestern University Pritzker
School of Law.
Amicus Luis Fuentes-Rohwer is a Professor of Law
and the Class of 1950 Herman B. Wells Endowed
Professor at Indiana University Maurer School of
Law.
Amicus Bertrall Ross is the Justice Thurgood
Marshall Distinguished Professor of Law at the
University of Virginia School of Law, where he also
directs the Karsh Center for Law and Democracy.
Amicus Joshua Sellers is an Associate Professor of
Law at Arizona State University’s Sandra Day
O’Connor College of Law.
Amicus Franita Tolson is the George T. and
Harriet E. Pfleger Chair in Law at the University of
Southern California Gould School of Law.
3
SUMMARY OF ARGUMENT
The Independent State Legislature Theory
(“ISLT”), which Petitioners press this Court to adopt,
would undermine our constitutional system of checks
and balances by stripping away state courts’ authority
to review state election laws and regulations for
compliance with state constitutions for congressional
elections.
Eliminating state judicial review of
Elections Clause cases would give political actors—
some of whom will do anything to acquire and
maintain political power—judicially unreviewable,
and thus functionally unchecked, power over election
laws. This would leave the liberty protected by the
right to vote at the whim of the state legislatures.
Petitioners’ argument is contrary to our
constitutional structure and the Framers’ intent.
Indeed, it defies everything we know about the
Framers’ distrust of state legislatures and goes
against foundational principles of separation of
powers and federalism that have long guided our
constitutional system. Moreover, the ISLT’s practical
effects demonstrate its infeasibility. It would require
this Court to arbitrate a conflagration of election
administration disputes that would threaten our
fragile democracy and further risk this Court’s
precious and necessary legitimacy.
This Court should reject the ISLT for two reasons.
First, the ISLT would unconstitutionally free state
legislatures from the fundamental structural checks
and balances and federalism built into our
constitutional system, defying the history and
tradition of state-court judicial review. Second,
despite Petitioners’ assertion that their version of the
4
ISLT is limited in scope and applies only to state-court
review of time, place, and manner regulations in
federal elections, the lines Petitioners draw are
arbitrary and have no limiting principle. In practice,
the ISLT would throw election regulation and
administration into chaos. The ISLT naïvely relies on
the idea that some other entity would step in to fill the
void created by jettisoning state-court adjudication of
electoral disputes.
But there is no indication
Congress would step in, or that federal courts have the
capacity to handle an explosion of electoral disputes
on their dockets. In fact, this Court has already
concluded federal courts are ill-equipped to resolve
these issues. See generally Rucho v. Common Cause,
139 S. Ct. 2484 (2019).
Given the long-standing, important role state
courts have played in protecting the right to vote, this
Court should not divest state courts of the authority
to review election laws and regulations. Doing so
would undermine the fundamental right to vote in
America.
5
ARGUMENT
I.
The Elections Clause Does Not Free State
Legislatures from the Fundamental Structural
Check and Balance of State-Court Review.
A. State Courts Have General
Regardless of the Elections Clause.
Jurisdiction
The American constitutional system is built upon
the twin pillars of separation of powers and
federalism, which together protect liberty through a
“diffusion” of powers. See Bond v. United States, 564
U.S. 211, 221–22 (2011); see also State ex rel. Wallace
v. Bone, 304 N.C. 591, 598 (1982) (“In the compound
republic of America, the power surrendered by the
people, is first divided between two distinct
governments, and then the portion allotted to each
subdivided
among
distinct
and
separate
departments.” (quoting THE FEDERALIST, No. 51)).
The ISLT implicates both pillars. Separation of
powers is as important at the state level as the federal
level. The Constitution has left the exact allocation of
powers between the branches to state governments to
determine. See Wolfe v. McCaull, 76 Va. 876, 880
(1882) (“It is one of the fundamental principles of our
government, State and Federal, that the legislative
power should be separate from the judicial.”); State v.
Nichols, 26 Ark. 74, 77 (1870) (“[T]he people . . . are
fully authorized to deposit power in such branches as
to them may seem best.”). The ISLT demands that the
Court step in and disrupt the allocation of power at
the state level in the regulation of the time, place, and
manner of federal elections.
6
Separation of powers as defined in the U.S.
Constitution and many states’ constitutions “has been
Ogden v.
deemed . . . essential to liberty.”
Witherspoon, 3 N.C. 227 (1802); see Bank Markazi v.
Peterson, 578 U.S. 212, 238 (2016) (Roberts, C.J.,
dissenting)
(“As
Hamilton
wrote,
quoting
Montesquieu, ‘there is no liberty if the power of
judging be not separated from the legislative and
executive powers.’” (quoting THE FEDERALIST No. 78));
Bond, 564 U.S. at 222 (“The structural principles
secured by the separation of powers protect the
individual[.]”). Since the early days of our country,
the notion that powers could be concentrated under
one branch was seen as a road to tyranny. See, e.g.,
Woart v. Winnick, 3 N.H. 473, 481 (1826) (“[T]he
union of the legislative and judicial power in the same
branch of the government is, in its very essence,
tyranny.”); see also State v. Brill, 100 Minn. 499, 504
(1907) (“[C]oncentrating [legislative, executive, and
judicial power] in the same hands is the precise
definition of a despotic government. It will be no
alleviation that these powers will be exercised by a
plurality of hands and not a single one.” (quoting
Jefferson, Notes on Virginia, p. 195; Story, Const.
Law, vol. 1, § 525)).
This was because of the deep fear that joining
legislative and judicial power together would expose
citizens “to arbitrary control, for the judge would be
the legislator.” Woart, 3 N.H. at 503–04. And if the
legislature was “permitted to exercise judicial power
also, or control the action of the judges within their
peculiar sphere, the liberty of the citizens, under the
government of good legislators, would be in imminent
peril, and under bad ones would be entirely
7
destroyed.” Fisher’s Negroes v. Dabbs, 14 Tenn. 119,
138 (1834). Thus, the legislature was given the power
to make laws, while the judicial branch was given the
See Respublica v.
power interpret those laws.
Oswald, 1 U.S. 319 (Pa. 1788). Under this system,
courts served as a check on arbitrary legislative action
by ensuring legislatures acted within the powers
granted to them by the people through state
constitutions. See Rison v. Farr, 24 Ark. 161, 168
(1865) (“The constitution is the fortification within
which the people have entrenched themselves for the
preservation of their rights and privileges, and every
act of the legislature . . . , which infringes upon any
right declared in the constitution, . . . is absolutely
void.”); Kamper v. Hawkins, 3 Va. 20, 28–32 (Va. Gen.
Ct. 1793).
Given the importance of separation of powers, it is
the default rule, unless it has been explicitly usurped.
Dearborn Twp. v. Dail, 334 Mich. 673, 683 (1952)
(“That the rule favoring strict separation of powers
prevails throughout the United States need merely be
mentioned in passing.”). This default rule exists at
both the federal and state levels. In fact, the U.S.
Constitution recognizes the importance of state courts
in this system by allotting general jurisdiction to state
courts, but not to federal courts. See Aldinger v.
Howard, 427 U.S. 1, 15 (1976); ERWIN CHEMERINSKY,
FEDERAL JURISDICTION § 5.1 (8th ed. 2021). Indeed,
federal courts did not become widely available to
address federal questions in the first instance until
after Reconstruction.
State courts’ general
jurisdiction “can be overcome [only] ‘by an explicit
statutory directive, by unmistakable implication from
legislative history, or by a clear incompatibility
8
between state-court jurisdiction and federal
interests.’” Mims v. Arrow Fin. Servs., LLC, 565 U.S.
368, 378 (2012) (quoting Gulf Offshore Co. v. Mobil Oil
Corp., 453 U.S. 473, 478 (1981)).
Petitioners argue the Elections Clause explicitly
strips state courts of their general jurisdiction. They
are wrong. To conclude the Elections Clause strips
state courts of their jurisdiction, this Court would
need to conclude that “Legislature” in that Clause
means only the state legislature and the not the state
legislative process, which includes amendments by
the people through referenda, exercise of the
executive’s veto, and state judicial review. This Court
rejected such a narrow reading of the Elections Clause
in other cases. See, e.g., Ariz. State Legis. v. Ariz.
Indep. Redistricting Comm’n, 576 U.S. 787 (2015)
(“AIRC”) (upholding citizen referenda changing state
redistricting process); Smiley v. Holm, 285 U.S. 355
(1932) (upholding executive veto of time, place, and
manner restrictions); see also State ex rel. Davis v.
Hildebrant, 114 N.E. 55, 58 (Ohio 1916) (interpreting
“Legislature” under the Elections Clause to be
broader than “the members of the bicameral body”),
aff’d sub nom. State of Ohio ex rel. Davis v.
Hildebrant, 241 U.S. 565 (1916) .
Petitioners point to no evidence that state courts
have ever operated as if they lacked jurisdiction to
adjudicate disputes regarding federal elections. On
the contrary, caselaw demonstrates that state courts
have historically adjudicated time, place, and manner
regulations by applying the provisions of their state’s
constitution. This history, discussed below, supports
a broader reading of the Elections Clause that is
inconsistent with the ISLT. It also supports the
9
conclusion that the Framers never intended the word
“Legislature” to be read as narrowly as Petitioners
demand.
B. The ISLT Would Upend Deeply Rooted Principles
of Federalism.
The ISLT poses a grave affront to deeply rooted
principles of federalism. “[B]oth bedrock theory and
longstanding practice dictate that (1) the citizens of
each state are entitled to establish their own state’s
constitution and (2) it is the task of state courts, which
operate on behalf of the state’s citizens, to interpret
state law, including state constitutional law.” Dan T.
Coenen, Constitutional Text, Founding-Era History,
and the Independent-State-Legislature Theory, 57
GA. L. REV. (forthcoming 2023) (draft at 34) draft
available at https://ssrn.com/abstract=4223731. The
ISLT demolishes both bedrock principles. It inverts
these principles by first finding that federal courts are
superior to state courts in reviewing state election
laws, and second, in doing so, stripping citizens of the
choice to enable their state court to invalidate state
legislation. Id. at 35.
This outcome directly conflicts with the axiom that
“state courts rather than federal courts are the
ultimate interpreters of state law[.]” 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, 43 (2021). This axiom is
apparent both in fundamental federalism principles
and in longstanding doctrines. See Leah M. Litman
& Katherine Shaw, Textualism Judicial Supremacy,
and the Independent State Legislature Theory, 2022
WIS. L. REV. (forthcoming 2022) (draft at 22), draft
10
available at https://ssrn.com/abstract=4141535. State
laws are better understood—and therefore better
addressed—by
state
courts
due
to
their
“understanding of and immersion in their states’ legal
culture, precedent and constitutions.”
Carolyn
Shapiro, The Independent State Legislature Theory,
Federal Courts, and State Law, 90 U. CHI. L. REV.
(forthcoming 2023) (draft at 54), draft available at
https://ssrn.com/abstract=4047322. For example, the
abstention doctrine permits federal courts to decline
to hear cases of unsettled questions concerning state
law. See, e.g., Green v. Lesse of Neal, 31 U.S. (6 Pet)
293 (1832) (state courts’ interpretations of state
legislative enactments must be respected by federal
courts); Railroad Comm’n of Texas v. Pullman Co., 312
U.S. 496, 500 (1941) (explaining “the last word on the
statutory authority . . . belongs neither to us nor to the
district court but to the [state] supreme court.”). In
applying this doctrine, federal courts recognize they
cannot decide what state law is or ought to be. Amar
& Amar, supra, at 44.
Petitioners brush this history aside by arguing
that respecting traditional views of federalism and
separation of powers “would empty [the Elections
Clause’s] assignment of election-regulating authority
to state legislatures of all meaning.” Pet’rs Br. at 21
(emphasis in original). Petitioners suggest that state
courts should be stripped of their authority to review
state laws because, “[u]nlike ordinary state
legislation, regulating elections to federal office is a
power governed, defined, and limited by the federal
Constitution.” Id. at 22. But this Court has explained
that state courts should be given deference when it
comes to matters involving federal elections. For
11
example, in Growe v. Emison, the Court held that
“reapportionment is primarily the duty and
responsibility of the State through its legislature or
other body,” which includes state courts. 507 U.S. 25,
34 (1993).
Eliminating a state court’s authority to interpret a
state election law also intrudes on democracy. Indeed,
the states are the laboratories of democracy. New
State Ice Co. v. Leibmann, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting); see also Evenwel v. Abbott,
578 U.S. 54, 89 (2016) (Thomas, J., concurring)
(“States are free to serve as laboratories of democracy.
That ‘laboratory’ extends to experimenting about the
nature of democracy itself.” (cleaned up)). Recent
scholarship has also highlighted that state
governments have also been forces against
democracy—e.g., by allowing voter suppression,
gerrymandering, state legislatures to take power from
incoming opposing-party governors, and use of police
power against vulnerable communities. See, e.g.,
Jacob M. Grumbach, Laboratories of Democratic
Backsliding, Working Paper (2022), available at
https://csap.yale.edu/sites/default/files/files/grumbac
h-apppw-4-20-22.pdf.
Some state actors will do
whatever they can, including rewriting the rules, to
hold onto power. By vitiating state courts’ authority
to serve as a check on state legislatures, the ISLT
ensures these laboratories will have a higher
likelihood of achieving anti-democratic results.
12
C. The Long-Standing Role of State Courts in
Reviewing Election Laws Lays Bare the Lack of
Historical Support for the ISLT.
To properly interpret the Elections Clause, this
Court must consider the Clause against the backdrop
of the long historical practice of state-court judicial
review of election laws, including state election laws
enacted pursuant to the U.S. Constitution. As this
Court recently observed, “where a governmental
practice has been open, widespread, and unchallenged
since the early days of the Republic, the practice
should guide our interpretation” of the constitutional
provision at issue. New York State Rifle & Pistol
Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2137 (2022)
(citations omitted); see also Guy-Uriel E. Charles &
Luis Fuentes-Rohwer, Chiafalo: Constitutionalizing
Historical Gloss in Law and Democratic Politics, 15
HARV. L. & POL’Y REV. 15, 30 (2020) (“[H]istorical
practice since the founding offered a practical
interpretation of the constitution.”).
Using practice and tradition as a tool to
understand the Constitution’s meaning is one that
James Madison endorsed. See generally William
Baude, Constitutional Liquidation, 71 STAN. L. REV.
1, 16–17 (2019) (giving examples from Madison’s
writings, including “the uniform & practical sanction
given . . . by every . . . Branch of the Genl. Govt. for
nearly 40 years; with a concurrence or acquiescence of
every State Govt. in all its Branches, throughout the
same period; and it may be added thro’ all the
vicissitudes of party, which marked the period.”
(quoting Letter from James Madison to Joseph C.
Cabell (Sept. 18, 1828)). Further, the people also have
a role in determining whether practice has been
13
established that reflects “the acquiescence of the
people at large.” Id. at 19 (quoting Letter from James
Madison to Lafayette (Nov. 1826)) (citations omitted).
Moreover, this Court recognized three decades ago
that it “has required federal judges to defer
consideration of disputes involving redistricting
where the State, through its legislative or judicial
branch, has begun to address that highly political task
itself.” Growe, 507 U.S. at 33 (emphasis in original).
State-court judicial review of election-related
enactments by a state legislature pursuant to Article
I and other similar articles of the U.S. Constitution is
an “open, widespread, and unchallenged” practice.
Bruen, 142 S. Ct. at 2137. This remained true even
after the explosion of redistricting litigation following
this Court’s invocation, in the 1960s, of the oneperson, one-vote principle.
i.
Historically, State Courts Exercised
Judicial Authority in the Election
Law Context.
In America’s early years, elections were subject to
significantly less regulation than they are today. See
generally Tabatha Abu El-Haj, Changing the People:
Legal Regulation and American Democracy, 86
N.Y.U. L. REV. 1 (2011). Nevertheless, even in this
less-regulated period, state courts exercised
jurisdiction over federal, state, and local elections.
The
distinction
between
federal-election
administration and state-election administration, like
the concept of increased regulation more broadly, is a
modern invention.
14
For example, several cases during the Civil War
considered whether soldiers could vote in elections,
including congressional elections, if they were not
physically present in the state at the time of the
election. See, e.g., People ex rel. Twitchell v. Blodgett,
13 Mich. 127, 147–48 (1865); Bourland v. Hildreth, 26
Cal. 161, 172–73 (1864). Cases continued after the
Civil War. In particular, the Ohio Supreme Court
found unconstitutional—as a matter of state law—a
state statute impeding the voting rights of men with
“a distinct and visible admixture of African blood.”
Monroe v. Collins, 17 Ohio St. 665, 684–85, 692
(1867). The court concluded that the state legislature
cannot “unreasonably . . . abridge or impede [that
right’s] enjoyment by laws professing to be merely
remedial.” Id. at 685. The Ohio court explained that
“[t]he power of the legislature in such cases is limited
to laws regulating the enjoyment of the right, by
facilitating its lawful exercise, and by preventing its
abuse.” Id. at 685–86. Ultimately, the court ruled
that the law, which limited registration for all
elections, was void under the state constitution. Id. at
692.
Three decades later, in Gentsch v. State ex rel.
McGorray, 72 N.E. 900 (Ohio 1904), the court ruled
that an Ohio law limiting election day hours from 5:30
am to 9:00 am passed muster under Ohio’s
constitution. Id. at 901. This law concerned voting on
general-election day—November 8, 1904—and
therefore applied equally to federal, state, and local
elections. Id. at 900. Just a few years later, in State
ex rel. Webber v. Felton, 84 N.E. 85 (Ohio 1908), the
Ohio court upheld a state law requiring voters to be
members of a state-recognized political party to
15
participate in primary elections. Id. at 90. And in
1920, the court upheld a voter registration law
requiring registrants to state their age in terms of
years and months, concluding that the law did not
violate either the Ohio or federal constitutions. State
ex rel. Klein v. Hillenbrand, 131 N.E. 29, 32 (Ohio
1920).
Massachusetts’ Supreme Judicial Court similarly
reviewed election laws and regulations as early as
1887.
That year, Massachusetts’ high court
considered the constitutionality of a state law
providing that naturalized citizens could not register
to vote within 30 days of naturalization. Kinneen v.
Wells, 11 N.E. 916, 918 (Mass. 1887). Although Wells
is facially a voter-qualification case and not a time,
place, and manner case, the Massachusetts court
established principles for judicial review of all laws
governing any elections held in Massachusetts. The
court acknowledged the legislature has the authority
to regulate election matters, “[h]owever unwise,
unjust, or even tyrannical [those] regulations may be.”
Id. at 919. However, “[t]o the provisions of the
constitution
all
legislation
is
thus
made
subordinate[.]”
Id. at 920 (citing Blanchard v.
Stearns, 46 Mass. 298, 301 (1842); Williams v.
Whiting, 11 Mass. 424 (1814)).
Wisconsin’s highest court also has opined on statecourt authority to review election laws. In 1880, the
Wisconsin Supreme Court found a state law requiring
prior registration to vote unconstitutional under the
state constitution because it disenfranchised a
constitutionally qualified elector. Dells v. Kennedy, 6
N.W. 246 (Wis. 1880). Nearly 20 years later, the court
further explained the source of its judicial review
16
authority: “[I]f the legislature proceeds beyond the
limits indicated, so as to leave no reasonable doubt on
the question, then the bar of the constitution, as
maintained by that branch of the government with
which such maintenance is specially intrusted, will
not hesitate to nullify its act.” State ex rel. Runge v.
Anderson, 76 N.W. 482, 486 (Wis. 1898) (emphasis
added). Using these principles as guidance, the court
found constitutional an 1897 election law, which
applied to all elections in Wisconsin and mandated a
candidate’s name appear only once on the ballot. Id.
at 483, 487. The court used similar reasoning to
uphold the legislature’s primary election law in 1910.
See State ex rel. McGrael v. Phelps, 128 N.W. 1041
(Wis. 1910).
The highest courts of other states similarly have
reviewed the constitutionality of state legislative
enactments related to all elections in a state,
including federal elections. Like North Carolina,
Kentucky’s constitution also has a Free Elections
Clause. Section 6 of Kentucky’s constitution provides
that “[a]ll elections shall be free and equal.” KY
CONST. § 6. In City of Owensboro v. Hickman, the
Supreme Court of Kentucky struck down a
registration law because it violated Kentucky’s Free
and Equal Elections Clause by applying to voters in
different locations in a discriminatory manner. 14
S.W. 688, 689–90 (Ky. 1890).
17
Over a century ago, in State v. Jefferson Cnty.
Comm’rs, the Florida Supreme Court invalidated a
provision of a Florida law requiring a prospective
voter to:
produce two qualified electors of
the election district in which he
offers to vote, who shall be
personally known to at least two of
the inspectors, and who shall each
declare under oath, that such
person does live in the election
district in which he offers to vote,
and has resided to their
knowledge in Florida one year and
in the county six months next
preceding the election[.]
17 Fla. 707, 718 (1880). This Florida law applied to
all elections in Florida, including federal elections.
The court noted that the voters already possessed the
state-required qualifications to vote, and the
additional
requirements
violated
Florida’s
constitutional provision protecting the right to vote.
Id. at 716, 721.
Also in 1890, the Supreme Court of Indiana, in
Morris v. Powell, invalidated residency qualifications
for voter registration established by the General
Assembly under the state constitution. 25 N.E. 221,
222, 226 (Ind. 1890) (citing Indiana’s free and equal
election clause, IND. CONST. art 2, § 1). And in 1892,
the Supreme Court of Pennsylvania upheld a
regulation passed by the legislature providing for
secret ballots, emphasizing its “harmony with article
1, § 5 [of its] Const[itution], which declares that
‘elections shall be free and equal’” and noting that the
18
“right to cast a free ballot [is one] no legislature can
interfere with.” De Walt v. Bartley, 24 A. 185, 186
(Pa. 1892).
This tradition of judicial review continued into the
twentieth century. See, e.g., State ex rel. Ellis v.
Brown, 33 S.W.2d 104, 108 (Mo. 1930) (construing
Missouri’s in-person voting statute for any election);
Perkins v. Luca, 246 S.W. 150, 153, 156–57 (Ky. 1922)
(holding registration law void under state’s free and
equal election clause); Walbrecht v. Ingram, 175 S.W.
1022, 1025 (Ky. 1915) (holding election was not “free
and equal” under Kentucky’s constitution because of
a requirement to print ballots based on number of
voters in last election).
These illustrative examples, along with those that
follow, show that review of state legislative
enactments regulating elections were unquestionably
the province of state courts, which ruled under the
provisions of both state and federal constitutions—
including state constitutional provisions ensuring free
and fair elections.
ii. The Historical Exercise of Judicial
Review of Congressional Elections
Before
One-Person,
One-Vote
Confirms the Invalidity of the ISLT.
Even before this Court’s invocation of the oneperson, one-vote principle, see, e.g., Baker v. Carr, 369
U.S. 186 (1962) and Reynolds v. Sims, 377 U.S. 533
(1964), state courts were deciding cases concerning
congressional elections.
One of the first cases
involving the redistricting of congressional districts
was in Massachusetts in 1854. Warren v. City of
Charlestown, 68 Mass. 84 (1854).
There, the
19
Massachusetts Supreme Judicial Court found void a
redistricting effort by the state legislature because the
effort would not preserve voters’ “rights to elect
representatives and senators in the general court, and
representatives in congress.” Id. at 84; see also
Bourland, 26 Cal. at 169.
Consider also two cases from 1932. That year, the
Illinois Supreme Court struck down a congressional
map as unconstitutional under the state constitution.
Moran v. Bowley, 179 N.E. 526 (Ill. 1932). In so
ruling, the court explained that “[t]he people of Illinois
have by their Constitution of 1870 reserved to
themselves the ultimate sovereignty to be exercised
by means of the ballot. To protect and preserve that
sovereignty they declared that all elections shall be
free and equal . . . .” Id. at 531. The court further
explained that “[t]he Legislature is not permitted to
flagrantly violate this section the bill of rights and
bestow upon classes or sections of voters a greater
power and influence in elections than upon other like
groups . . . .” Id. at 532. That same year, Virginia’s
highest court struck down a congressional map as
violating its state constitution. Brown v. Saunders,
166 S.E. 105, 111 (Va. 1932). The court held that
“[w]hen a State legislature passes an apportionment
bill, it must conform to [state] constitutional
provisions prescribed for enacting any other law, and
whether such requirements have been fulfilled is a
question to be determined by the court when properly
raised.” Id. at 107 (citations omitted).
State courts have also supervised congressional
election administration and ballot access.
For
example, in 1881, the South Carolina Supreme Court
heard a mandamus case involving the congressional
20
election of 1880, where the petitioners sought to
require the Election Commission to count certain
votes. Ex parte Mackey, 15 S.C. 322 (1881). The court
held that the U.S. Constitution’s provision that “each
house shall be the judge of the election returns and
qualifications of its own members” did not constitute
“another remedy in the sense necessary to exclude the
right to mandamus.” Id. at 335–36. In 1896, the
Kentucky high court affirmed a denial of a Kentucky
citizen’s request to have his name listed under the
People’s Party ticket for a congressional election.
Southall v. Griffith, 37 S.W. 577 (Ky. 1896). A year
later, the New York Court of Appeals ruled on which
delegate was properly selected for the Republican
ticket for a Congressional seat. In re Fairchild, 45
N.E. 943, 944–46 (N.Y. 1897). Similarly, in 1898, the
Michigan Supreme Court determined which
candidates should appear on the Republican ticket for
Congress after a dispute involving the party
nomination convention. Stephenson v. Boards of
Election Comm’rs, 76 N.W. 914, 914 (Mich. 1898).
These state-court decisions on issues relating to
the manner of congressional elections before the oneperson, one-vote era exemplify the long-standing role
of state courts in this area.
iii. The Historical Exercise of Judicial
Authority
Over
Congressional
Elections Since One-Person, OneVote Confirms the ISLT’s Invalidity.
After Baker and Reynolds, state courts
increasingly
exercised
their
authority
over
congressional redistricting. For example, in a case
contemporaneous with Baker, the Supreme Court of
Kentucky upheld a 1962 congressional map, noting
21
the court could find flagrantly disproportionate
representation to be unconstitutional under the
state’s free and equal election clause. Watts v. Carter,
355 S.W. 2d 657 (Ky. 1962). Two years later, the
Supreme Court of New Hampshire, in upholding
congressional maps adopted by the legislature,
explicitly asserted its authority to review
congressional maps. Levitt v. Maynard, 202 A.2d 478,
481 (N.H. 1964), overruled on other grounds by
Norelli v. Sec'y of State, No. 2022-0184, 2022 WL
1498345, at *6 (N.H. May 12, 2022). Similarly, in
1965, the Supreme Court of Virginia invalidated a
malapportioned congressional redistricting plan
under both state and federal constitutional provisions.
Wilkins v. Davis, 139 S.E.2d 849 (Va. 1965).
The practice of state courts reviewing disputes
concerning congressional districts has continued,
particularly when the legislative process has broken
down and failed to produce a map. See, e.g., Wattson
v. Simon, 970 N.W.2d 56, 66 (Minn. 2022) (holding
current congressional districts unconstitutional and
adopting
new
district
boundaries);
In re
Reapportionment Comm’n, 268 A.3d 1185 (Conn.
2022) (adopting special master’s congressional plan
after commission failed to produce a map); Johnson v.
Wis. Elections Comm’n, 967 N.W.2d 469 (Wis. 2021)
(drawing congressional districts after legislature was
unable to overcome governor’s veto); Hall v. Moreno,
270 P.3d 961 (Colo. 2012) (upholding trial court’s
adoption of a congressional map after state legislature
was unable to adopt one); Jepsen v. Vigil-Giron, No.
D0101 CV 2001 02177, 2002 WL 35459960 (N.M. 1st
Jud. Dist. Jan. 4, 2002) (explaining court was
“required to redraw congressional districts due to an
22
impasse between legislative and executive branches of
government”); Perry v. Del Rio, 67 S.W.3d 85 (Tex.
2001)
(“[C]ourts
must
resolve
redistricting
controversies when the legislature does not do so.”).
Without state-court intervention, there likely would
have been no properly drawn congressional maps in
these states, which would have led to uncertainty for
both election officials and voters.
Additionally, accepting this Court’s invitation in
Rucho, and responding to citizens’ concerns regarding
political entrenchment, state courts have addressed
excessive partisanship in the redistricting process.
Rucho, 139 S. Ct. at 2507 (“Provisions in state statutes
and state constitutions can provide standards and
guidance for state courts to apply.”); see, e.g.,
Harkenrider v. Hochul, No. 60, --- N.E.3d ---, 2022 WL
1236822, at *13 (N.Y. Apr. 27, 2022) (striking
congressional map under the court’s duty to “uphold
those constitutional standards by adhering to the will
of the People of this State and giving meaningful effect
to” the state constitution); Adams v. DeWine, 195
N.E.3d 74 (Ohio 2022) (invalidating congressional
district plan under the Ohio constitution); cf. League
of Women Voters of Pa. v. Commw. of Pa., 178 A.3d
737 (Pa. 2018) (invalidating congressional map under
state’s free and equal elections clause); League of
Women Voters of Fla. v. Detzner, 172 So. 3d 363, 414
(Fla. 2015).
Judicial oversight of the redistricting process is in
accordance with tradition and prior practice, as well
as the will of the people. In several states, citizens
have voiced their concern about overly politicized
redistricting processes through either direct
amendment of state constitutions or their duly elected
23
legislatures enacting a series of statutory and
constitutional changes, which explicitly recognize
state-court power to adjudicate disputes involving
constitutional mandates for redistricting.
For
example, in 1976, the people of Connecticut passed a
ballot measure vesting original jurisdiction in the
state supreme court to hear challenges to a
redistricting plan or rectify inaction. CONN. CONST.
art. III, § 6(d). In 1983, Washington adopted a
constitutional amendment giving its Supreme Court
original jurisdiction to hear challenges to both state
legislative and congressional maps. WASH. CONST.
art. II, § 43. Similarly, in 1995, voters adopted a
constitutional amendment giving the Supreme Court
of New Jersey jurisdiction over disputes arising from
the congressional map-drawing process. NJ CONST.
art. II § 2, ¶¶ 7, 9. In 2010, voters passed the Fair
Districts Amendment to the Florida constitution to
create redistricting principles, and the Florida
Supreme Court found that it has the authority to hear
disputes arising under that amendment. See Detzner,
172 So. 3d at 370 (discussing the Fair Districts
Amendment). And in 2014, New York voters passed a
set of constitutional amendments permitting statecourt review of any legislative redistricting, including
congressional redistricting. See N.Y. CONST. art. III,
§§ 4-5.
Interest in state-court judicial review of
redistricting has increased in the past five years
across the country and across partisan divides. In
2018, Colorado voters passed Amendment Y, granting
the Colorado Supreme Court jurisdiction to review
and ultimately accept or reject the constitutionality of
congressional maps drawn by an independent
24
commission.
See, e.g., COLO. CONST. art. V.
§ 44.4(5)(b). That same year, Ohio voters adopted a
constitutional amendment establishing a process and
standards for congressional redistricting, which gave
the Supreme Court of Ohio original jurisdiction in all
cases arising under the article. OHIO CONST. art. XIX,
§3. In 2020, Virginia’s Constitution was amended by
popular vote to grant state courts the express power
to step in if the newly created (as of 2020) districting
commission fails to draw district lines. See VA.
CONST. art. II, § 6-A; see also VA. CODE ANN. § 30-399.
And, just last year, Tennessee enacted a law under
which a three-judge panel may hear any civil action
that challenges the constitutionality of a statute that
apportions or redistricts state congressional districts.
TENN. CODE. ANN. §20-18-101.
A review of caselaw and legislative action over the
past 150 years clearly demonstrates a long-standing
practice of state courts reviewing the “times, places,
and manner” of congressional elections under state
constitutions. This practice is consistent with the text
and structure of the Constitution. Endorsing the
ISLT would upend this firmly rooted practice and
cause chaos in the federal courts and state systems.
II. Petitioners’ Articulation of the ISLT Lacks a
Limiting Principle and Would Lead to Chaos.
A. Petitioners Fail to Provide a Limiting
Principle and Require the Court to Overrule
Precedent.
Despite protestations to the contrary, Petitioners
fail to provide a limiting principle for the ISLT.
Accepting Petitioners’ reasoning would necessarily
require the Court either to overrule its precedent in
25
other election-legislation cases, including Smiley and
AIRC, or draw arbitrary and untenable distinctions.
Petitioners read the word “exclusively” into the
Elections Clause to modify “by the Legislature
thereof.” U.S. CONST. art. I, § 4, cl. 1. If Petitioners
are correct, then both citizen referenda and executive
vetoes also would violate the Elections Clause.
Petitioners argue that they are not asking for Smiley
and AIRC to be overruled, but they have no principled
way of distinguishing those cases.
Ninety years ago, in Smiley, this Court concluded
that lawmaking by the state legislature in connection
with the Elections Clause must be in accordance with
the method that the state has prescribed for
legislative enactments, which in Minnesota (and
virtually every other state) included the governor’s
veto. This Court explained that nothing in the
Elections Clause “attempt[ed] to endow the
Legislature of the state with power to enact laws in
any manner other than that in which the Constitution
of the state ha[d] provided that laws shall be enacted.”
Smiley, 285 U.S. at 368; see also id. at 369 (“General
acquiescence cannot justify departure from the law,
but long and continuous interpretation in the course
of official action under the law may aid in removing
doubts as to its meaning [and] [t]his is especially true
in the case of constitutional provisions governing the
exercise of political rights, and hence subject to
constant and careful scrutiny.”); Koenig v. Flynn, 285
U.S. 375, 379 (1932) (holding, for the reasons stated
in Smiley, a concurrent resolution of the senate and
assembly in New York establishing new congressional
districts was ineffective because it had not been
26
submitted to the governor for approval as state law
required).
Numerous courts have agreed that governors have
veto power over election legislation in accordance with
state law. See, e.g., Johnson, 967 N.W.2d at 488
(explaining that Wisconsin’s “precedent declares that
the legislature’s enactment of a redistricting plan is
subject to presentment and a gubernatorial veto.”);
Carstens v. Lamm, 543 F. Supp. 68, 79 (D. Colo. 1982)
(concluding that in creating congressional districts,
court should afford no preference to plan approved by
legislature but vetoed by governor); Williams v.
Kerner, 195 N.E.2d 680, 683 (Ill. 1963) (concluding
that “past practice, by authority, and by
contemporaneous construction” showed the governor
did not exceed his authority in exercising his veto
power and vetoing legislative redistricting maps
proposed by legislature).
Veto power does not rest with the executive alone
but includes “a veto power lodged in the people.”
AIRC, 576 U.S. at 805 (citing Hildebrant, 241 U.S. at
569). More than a century ago, this Court explained
in Hildebrant that the Elections Clause does not bar
“treating the referendum [disapproving the
legislation creating congressional districts] as a part
of the legislative power for the purpose of
apportionment, where so ordained by the state
Constitutions and laws.” 241 U.S. at 569. As a result,
“for redistricting purposes, Hildebrant thus
established, ‘the Legislature’ did not mean the
representative body alone.” AIRC, 576 U.S. at 805.
In
AIRC,
this
Court
considered
the
constitutionality of an initiative, adopted by Arizona
voters, which “amended Arizona’s Constitution to
27
remove redistricting authority from the Arizona
Legislature and vest that authority in an independent
commission.” 576 U.S. at 792. In challenging this
reallocation of redistricting authority from the
legislature to the independent commission, the
Arizona legislature effectively made the same
unsupported argument Petitioners make here: the
word “Legislature” in the Elections Clause refers
specifically and only to the representative body that
makes the laws for the people of a state. Id.
While reaffirming the use of independent
commissions for redistricting, this Court disagreed
with the Arizona legislature for the same reason it
should disagree with Petitioners: “the people
themselves are the originating source of all the powers
of government.” Id. at 813. To be certain, “[n]othing
in [the Elections] Clause instructs, nor has this Court
ever held, 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.” Id. at 817–18.
Petitioners’ logic would invalidate all citizen
initiatives concerning the administration of federal
elections because those efforts are not part of the
Petitioners’ narrowly defined “Legislature.” See, e.g.,
Franita Tolson, The “Independent” State Legislature
in Republican Theory, (2022) at 22, available at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=
4226098 (“[ISLT] allows the state legislature to
disregard the preferences of the people right at the
juncture in which they are exercising the oversight
and accountability at the core of the majoritarian
principles underlying our system of republicanism:
during the election of federal officials.”).
28
B. Adopting the ISLT Would Lead to Chaos in the
Administration of, and Litigation Surrounding,
Elections.
Perhaps the most concerning pragmatic problem
the ISLT would create is dueling election regulations
for state-level and federal-level offices. “Under the
ISLT, if a state court finds some or all of a statute
unconstitutional under the state constitution, the
statute would still apply to federal elections.” C.
Shapiro, supra, (draft at 52). Or a federal court may
disagree with a state court about how the state
constitution’s provision applies to federal elections
under the Elections Clause. In both cases, the result
would be different sets of rules for state-level and
federal-level elections. 3
Two simple examples warrant consideration.
First, consider a state’s authority to require voter
identification. Utah, for example, requires voters to
“present valid voter identification to one of the poll
workers” before casting a ballot. UTAH CODE ANN.
§ 20A-3a-203(2)(b). Assume a voter challenges the
voter identification requirement, complaining it
violates the Utah constitution’s free elections clause,
which states that “[a]ll elections shall be free, and no
power, civil or military, shall at any time interfere to
prevent the free exercise of the right of suffrage.”
3 Although the National Voter Registration Act of 1993 only
applies to federal elections, states typically apply the same
registration rules to state and federal elections, in large part due
to difficulty in having two different sets of rules. See Estelle H.
Rogers, The National Voter Registration Act Reconsidered, AM.
CONST. SOC’Y FOR L. & POL’Y, at 2 (Nov. 2011),
https://www.acslaw.org/wp-content/uploads/2018/04/Rogers__NVRA_Reconsidered_1.pdf.
29
UTAH CONST. art. I, § 17. If the Utah Supreme Court
agreed and struck down the voter identification
requirement, the ISLT would dictate that ruling could
only apply to elections for state candidates and not for
federal candidates. Accordingly, Utah voters could
not be required to produce identification to vote for
their state senator but would be required to produce
identification to vote for their U.S. senator.
Next, consider a state’s authority to delegate
certain responsibilities for election management. In
2020, during the COVID-19 pandemic, elections
officials in states like Michigan mailed every
registered voter an absentee ballot application. See,
e.g., Todd Spangler, Secretary of State: All Michigan
voters will get absentee ballot applications at home,
DETROIT FREE PRESS (May 20, 2020, 7:15 AM),
https://www.freep.com/story/news/politics/elections/2
020/05/19/all-michigan-voters-get-absentee-ballotapplications-in-mail/5218266002/. But Michigan law
does not provide for the mass distribution of absentee
ballot applications; it merely lays out the processes by
which Michiganders may request an absentee ballot.
See MICH. COMP. LAWS ANN. § 168.759 et seq. The
Secretary of State’s decision to mail 7.7 million
absentee ballot applications to Michiganders was not
specifically authorized by statute.
Assume Michiganders then completed their
absentee ballot applications, received their ballots,
and voted. Should their votes be counted? The ISLT
would suggest that absentee ballots submitted by
voters who received applications automatically should
be excluded with respect to federal candidates because
voters improperly obtained those ballots, and the
Michigan Secretary of State acted improperly because
30
only the Michigan Legislature could decide to mail
absentee ballot applications to every Michigander.
Those same ballots, however, would remain valid for
state candidates.
Would the elections officials
tabulate the results of the “illegal” ballots as to the
state candidates but not the federal candidates?
Would those ballots be invalidated entirely?
Such inconsistency “would, at a minimum, require
costly administrative duplication and create confusion
for election officials and voters alike.” C. Shapiro,
supra, (draft at 52). And these are but two examples.
The ISLT, taken to its logical extreme, implicates all
time, place, and manner restrictions a legislature may
enact. This “growing complexity of, and frequent
changes in, federal, state, and local election laws adds
to the likelihood that poll workers will err.” Judith
Shulevitz, An Election Without Chaos Will Be a
Miracle,
THE
ATLANTIC,
Oct.
15,
2020,
https://www.theatlantic.com/ideas/archive/2020/10/fi
ve-hours-training-and-285-guard-democracy/616719/.
And all this will lead to an explosion in litigation,
uncertainty for elections officials, and voter confusion.
The ISLT would not only create major federalism
concerns from doctrinal and prudential perspectives
but also would lead to seismic practical challenges in
election litigation. Under a maximalist view of the
ISLT, no court could review any time, place, or
manner restrictions because the Constitution
provides that state legislatures enact those
restrictions, while “the Congress may at any time by
law make or alter such Regulations[.]” U.S. CONST.
art. I, § 4. Taken on its face and to its extreme, only
(a) state legislatures and (b) the United States
Congress have a role in prescribing time, place, or
31
manner restrictions for federal-candidate elections.
But this cannot be so: the Framers “did not—to say
the least—believe that legislative bodies should be
independent. Instead, they believed that legislatures
needed to be made subject to a multiplicity of checks
and balances within a system of separated
government powers.” D. Coenen, supra, (draft at 16).
Against that backdrop, “it would be misguided—and,
indeed, anomalous—to conclude that, by referring
without more to ‘the Legislature’ in the Elections
Clause, the Framers meant to put in place an
independent-state-legislature doctrine that would
nullify the check provided by ‘the firmness of the
judicial magistracy’ in ‘confining the operation . . . of
laws’ enacted by state legislatures.” Id. (draft at 20)
(internal quotation omitted).
Further, the argument that Congress will wade in
and resolve time, manner, or place disputes is at best
misguided and at worst disingenuous. Although the
Elections Clause empowers the U.S. Congress to
intercede, it rarely has done so. Election processes are
not “an area where elected officials are likely to
intercede. The one unassailable generalization that
can be made about elected officials is that they were
all elected. Once elections end and public attention
fades, there is rarely any incentive for those who have
succeeded in the electoral arena to alter the rules and
procedures that put them in office.”
SAMUEL
ISSACHAROFF, PAMELA S. KARLAN, RICHARD H. PILDES,
NATHANIEL PERSILY & FRANITA TOLSON, THE LAW OF
DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL
PROCESS 1077 (6th ed. 2022). Accordingly, Congress
serving as a check on, or reviewing body responding
to, state legislatures’ time, place, and manner
32
restrictions is not a realistic option. And even if
Congress were interested in tackling the peculiarities
of state election regulations, under the ISLT,
Congress could review only federal election
regulations, not state regulations.
That leaves the courts. If state courts are suddenly
told they are not permitted to review their state
legislature’s elections laws, then necessarily the
federal courts will become inundated with emergency
motions, requests for temporary restraining orders
and injunctive relief, and lawsuits challenging every
election administration action a state takes. By
barring state courts from reviewing state election
laws
under
state
constitutions,
“[f]ederal
constitutional law would then be turned into a
detailed election code for state elections.”
ISSACHAROFF ET AL., supra, at 1115. Historically,
“federal courts have . . . declined to transform most
issues of the regulation of state elections into federal
constitutional matters. The question then becomes
where, precisely, the boundary line between state and
federal interests ought to be drawn.” Id. And, of
course, the federalization of some, but not all, aspects
of state-level election administration will lead to dual
systems and the resulting problems discussed above.
*
*
*
“[A]s a practical matter, there must be a
substantial regulation of elections if they are to be fair
and honest and if some sort of order, rather than
chaos, is to accompany the democratic processes.”
Storer v. Brown, 415 U.S. 724, 730 (1974). The ISLT,
however, would plunge the democratic processes into
chaos. States could enact legislation without checks
and balances from other branches of the state,
33
including the state courts and governor. Dueling
regulations for state-level and federal-level elections
in the same state would create confusion and inflate
administrative costs and burdens. Federal courts, or
Congress (if it so chose), would become the arbiters of
minute details of 50 sets of election codes. Endless
ping-ponging litigation would overwhelm courts,
particularly after redistricting and every two years
leading up to, and immediately following, federal
elections.
And the respect that federal courts
traditionally accord to their state counterparts would
vanish. Such chaos would overwhelm the democratic
processes in this country should the ISLT take hold
and state courts be barred from exercising their
proper function.
CONCLUSION
For the foregoing reasons, amici curiae request
that this Court affirm the decision of the Supreme
Court of North Carolina.
34
Respectfully submitted,
Guy-Uriel E. Charles
T. Alora ThomasLundborg
HARVARD LAW SCHOOL 4
1563 Massachusetts Ave.
Cambridge, MA 021387
Stefanie A. Tubbs
Christopher J. Merken
Jennifer Harchut
DECHERT LLP
Cira Centre
2929 Arch St.
Philadelphia, PA 19104
Neil Steiner
DECHERT LLP
1095 Ave. of the Americas
3 Bryant Park
New York, NY 10036
Jacob R. Porter
DECHERT LLP
515 Congress Ave.
Suite 1400
Austin, TX 78701
Gregory P. Luib
DECHERT LLP
1900 K Street, N.W.
Washington, DC 20006
Angela M. Liu*
*Counsel of Record
DECHERT LLP
35 West Wacker Dr.
Suite 3400
Chicago, IL 60601
(312) 646-5816
angela.liu@dechert.com
Counsel for Amici Curiae
October 26, 2022
University affiliation is provided for identification purposes
only; Professor Charles and Ms. Thomas-Lundborg sign this
amicus brief in their individual capacities and not on behalf of
Harvard Law School.
4
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.