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, et al.,
Petitioners,
v.
REBECCA HARPER, et al.,
Respondents.
————
On Writ of Certiorari to the
North Carolina Supreme Court
————
BRIEF OF THE DISTRICT OF COLUMBIA,
ILLINOIS, CALIFORNIA, COLORADO,
CONNECTICUT, DELAWARE, HAWAII, MAINE,
MARYLAND, MASSACHUSETTS, MICHIGAN,
MINNESOTA, NEVADA, NEW JERSEY,
NEW MEXICO, NEW YORK, OREGON,
PENNSYLVANIA, RHODE ISLAND, VERMONT,
WASHINGTON, AND WISCONSIN AS
AMICI CURIAE IN SUPPORT OF RESPONDENTS
————
KWAME RAOUL
Attorney General for the
State of Illinois
JANE ELINOR NOTZ
Solicitor General
ALEX HEMMER
Deputy Solicitor General
Office of the Attorney General
100 West Randolph St.
Chicago, IL 60601
(312) 814-5376
jane.notz@ilag.gov
KARL A. RACINE
Attorney General for the
District of Columbia
CAROLINE S. VAN ZILE*
Solicitor General
ASHWIN P. PHATAK
Principal Deputy
Solicitor General
ADAM J. TUETKEN
ARJUN P. OGALE
Assistant Attorneys General
Office of the Attorney General
400 6th St., NW, Ste. 8100
Washington, D.C. 20001
(202) 724-6609
caroline.vanzile@dc.gov
* Counsel of Record
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..................................... iii
INTRODUCTION AND INTEREST OF AMICI
CURIAE ................................................................ 1
SUMMARY OF ARGUMENT.................................... 3
ARGUMENT .............................................................. 4
I. State Constitutions, Courts, And Officials
Have Historically Played An Integral Role In
Regulating Federal Elections. .............................. 4
II. Petitioners’ Theory Threatens States’ Ability
To Administer Federal Elections. ...................... 12
A. State constitutions, courts, executive
officials, and others routinely set rules
governing elections. ....................................... 13
1. State constitutions contain crucial
election rules. ........................................... 13
2. State courts referee disputes over
election law. .............................................. 15
3. Election
administrators
set
and
implement rules necessary to conduct
elections. ................................................... 18
4. Voters establish election rules through
direct democracy. ..................................... 20
B. Petitioners’ theory undermines state
sovereignty and could upend existing
election administration. ................................ 21
ii
1. Petitioners’ theory would upset states’
role in our federalist system. ................... 22
2. Petitioners’ theory could destabilize
elections. ................................................... 24
a. Petitioners’ theory could deprive
states of key rules and actors needed
to administer elections. ........................ 25
b. Petitioners’ theory could require
different rules for federal and state
elections. ............................................... 27
c. Petitioners’ theory would subject
states to increased, thorny litigation
in the federal courts. ............................ 30
d. There is no workable standard to
implement petitioners’ theory. ............. 32
CONCLUSION ......................................................... 34
iii
TABLE OF AUTHORITIES
Page(s)
CASES
Abbott v. Anti-Defamation League Austin, Sw.,
& Texoma Regions,
610 S.W.3d 911 (Tex. 2020) ................................ 16
Allen v. Scott, 135 N.E. 683 (Ohio 1922) ................. 14
Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n,
576 U.S. 787 (2015)....13, 15, 20, 21, 23, 24, 25, 27
Berger v. N.C. State Conf. of the NAACP,
142 S. Ct. 2191 (2022)..................................... 2, 12
Bush v. Gore, 531 U.S. 98 (2000) ......................... 1, 32
Carson v. Simon,
978 F.3d 1051 (8th Cir. 2020)............................. 31
Chase v. Miller, 41 Pa. 403 (1862) ............................. 8
Chiafalo v. Washington, 140 S. Ct. 2316 (2020) ....... 4
City of Detroit v. Bd. of Inspectors,
139 Mich. 548 (1905)........................................... 10
City of Memphis v. Hargett,
414 S.W.3d 88 (Tenn. 2013) ............................... 15
City of Providence v. Moulton,
160 A. 75 (R.I. 1932) ........................................... 14
iv
Coleman v. State ex rel. Race,
159 So. 504 (Fla. 1935) ....................................... 14
Cmty. Success Initiative v. Moore, No. 19 CVS
15941, 2020 WL 10540948 (N.C. Super. Ct.
Sept. 4, 2020) ...................................................... 29
Crafts v. Quinn, 482 A.2d 825 (Me. 1984) ............... 28
Davis v. Bandemer, 478 U.S. 109 (1986) ................. 34
Davis v. Hildebrant, 241 U.S. 565 (1916)................ 21
Democratic Nat’l Comm. v. Wis.
State Legislature,
141 S. Ct. 28 (2020)............... 18, 20, 22, 24, 25, 31
Does v. Mills, 142 S. Ct. 17 (2021) ........................... 31
Elmendorf v. Taylor, 23 U.S. 152 (1825) ................. 24
Facebook, Inc. v. Duguid,
141 S. Ct. 1163 (2021)......................................... 32
Favorito v. Handel, 684 S.E.2d 257 (Ga. 2009) ....... 15
Fay v. Merrill, 256 A.3d 622 (Conn. 2021) .............. 33
George v. Hargett, 879 F.3d 711 (6th Cir. 2018) ..... 19
Gregory v. Ashcroft, 501 U.S. 452 (1991) ........ 1, 4, 24
Hopper v. Britt, 203 N.Y. 144 (1911) ......................... 9
In re Gen. Election-1985, 531 A.2d 836
(Pa. Commw. Ct. 1987) ....................................... 29
v
In re Grand Jury Subpoena,
912 F.3d 623 (D.C. Cir. 2019) .............................. 7
In re Interrogatories on Sen. Bill 21-247
Submitted by Colo. Gen. Assembly,
488 P.3d 1008 (Colo. 2021) ................................. 16
In re Op. of Justs., 30 Conn. 591 (1862) .................... 8
In re Sen. Joint Resol. of Legislative
Apportionment, 83 So. 3d 597 (Fla. 2012) .......... 17
In re State of Texas,
602 S.W.3d 549 (Tex. 2020) .......................... 16, 33
Kelso v. Cook, 184 Ind. 173 (1916) ............................. 9
Kuznik v. Westmoreland Cnty. Bd. of
Comm’rs, 902 A.2d 476 (Pa. 2006) ..................... 28
Ledgerwood v. Pitts, 122 Tenn. 570 (1909) ............... 9
Libertarian Party of Pa. v. Wolf, Civ. A. No. 202299, 2020 U.S. Dist. Lexis 124200 (E.D.
Pa. July 14, 2020) ............................................... 19
Lynch v. Malley, 215 Ill. 574 (1905) ........................ 10
McKinney v. Arizona, 140 S. Ct. 702 (2020)............ 22
McLinko v. Dep’t of State,
279 A.3d 539 (Pa. 2022) ...................................... 15
M’Culloch v. Maryland, 17 U.S. 316 (1819) ............ 17
Merrill v. Milligan, 142 S. Ct. 879 (2022) ......... 31, 33
vi
Michigan v. Long, 463 U.S. 1032 (1983) ................. 33
Morris v. Powell, 125 Ind. 281 (1890)...................... 10
Murphy v. Curry, 137 Cal. 479 (1902) ....................... 9
Nichols v. Minton, 196 Mass. 410 (1907) ................ 10
Op. of Justs., 162 A.3d 188 (Me. 2017) .................... 20
Pa. Democratic Party v. Boockvar,
238 A.3d 345 (Pa. 2020) ...................................... 29
People ex rel. Breckton v. Bd. of Election
Comm’rs of Chi., 221 Ill. 9 (1906)......................... 9
People ex rel. Twitchell v. Blodgett,
13 Mich. 127 (1865)............................................... 8
Perkins v. Lucas, 197 Ky. 1 (1922) .......................... 10
Pocket Veto Case, 279 U.S. 655 (1929) ...................... 4
Purcell v. Gonzalez, 549 U.S. 1 (2006)..................... 31
Rucho v. Common Cause,
139 S. Ct. 2484 (2019)................. 13, 20, 30, 31, 34
Santa Clara Cnty. Local Transp. Auth. v.
Guardino, 902 P.2d 225 (Cal. 1995) ................... 20
Scott v. Germano, 381 U.S. 407 (1965) .................... 18
Shelby County v. Holder,
570 U.S. 529 (2013)......................................... 1, 22
Smiley v. Holm, 285 U.S. 355 (1932) ............... 4, 7, 24
vii
Socialist Party v. Uhl, 155 Cal. 776 (1909) ............... 9
State Election Bd. v. McClure,
189 N.E.2d 711 (Ind. 1963)................................. 16
State ex rel. Adair v. Drexel,
74 Neb. 776 (1905) ................................................ 9
State ex rel. Bateman v. Bode,
55 Ohio St. 224 (1896) .......................................... 9
State ex rel. Karlinger v. Bd. of Deputy State
Supervisors of Elections,
80 Ohio St. 471 (1909) ........................................ 10
State ex rel. Thompson v. Scott,
99 Minn. 145 (1906) .............................................. 9
State ex rel. Zent v. Nichols,
50 Wash. 508 (1908) ............................................. 9
Stringer v. Whitley,
942 F.3d 715 (5th Cir. 2019)............................... 19
Todd v. Bd. of Election Comm’rs,
104 Mich. 474 (1895)............................................. 9
U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779 (1995)............................................. 23
Univ. of Tex. v. Camenisch,
451 U.S. 390 (1981)............................................. 31
Vanhorne’s Lessee v. Dorrance,
(C.C.D. Pa. 1795) ................................................ 23
viii
Walsh v. Katz, 953 N.E.2d 753 (N.Y. 2011) ............ 15
Wise v. Circosta, 978 F.3d 93 (4th Cir. 2020) .......... 27
Worsdale v. City of Killeen,
578 S.W.3d 57 (Tex. 2019) .................................. 33
Zignego v. Wis. Election Comm’n,
957 N.W.2d 208 (Wis. 2021) ............................... 19
CONSTITUTIONAL PROVISIONS
Ala. Const. of 1819, art. III, § 7 ................................. 6
Ariz. Const. art. 7, § 7 .............................................. 28
Ark. Const. art. VIII, § 5 .......................................... 17
Cal. Const. art. II, § 5............................................... 14
Cal. Const. art. II, § 8(a) .......................................... 20
Del. Const. of 1776, art. XI ........................................ 5
Del. Const. of 1792, art. VIII, § 2............................... 6
Fla. Const. art. III, § 16 ........................................... 17
Ga. Const. of 1777, art. XV ........................................ 5
Ga. Const. of 1789, art. IV, § 2 .................................. 6
Ind. Const. art. II, § 13............................................. 14
Ky. Const. of 1792, art. III, § 2 .................................. 6
ix
La. Const. art. XI, § 2 ............................................... 14
La. Const. of 1812, art. VI, § 13 ................................. 6
Mass. Const. of 1780, ch. IV ...................................... 6
Md. Const. art. I, § 1 ................................................ 14
Md. Const. of 1776, art. XIV ...................................... 6
Md. Const. of 1776, art. XXVII .................................. 5
Miss. Const. art. XIII, § 254 .................................... 17
N.C. Const. of 1776, art. XXXVII .............................. 9
N.H. Const. of 1784, pt. II .......................................... 6
N.J. Const. art. II, § 3 .............................................. 14
N.Y. Const. of 1777, art. XXX .................................... 5
N.Y. Const. of 1821, art. II, § 4 .................................. 6
Neb. Const. art. 3, § 1 .............................................. 21
Ohio Const. of 1803, art. IV, § 2 ................................ 6
Or. Const. art. IV, § 1 ............................................... 23
Pa. Const. art. VII, § 14 ........................................... 14
Pa. Const. of 1776, § 11 .............................................. 5
Pa. Const. of 1790, art. III, § 2 .................................. 6
x
S.C. Const. art. XVI, § 1 ........................................... 14
S.C. Const. of 1778, art. XXII .................................... 6
Tenn. Const. of 1796, art. III, § 3 .............................. 6
Tex. Const. art. VI, § 1 ............................................. 14
U.S. Const. art. I, § 4...................................... 4, 11, 26
Va. Const. art. 2, § 1................................................. 28
Va. Const. of 1776, Delegates .................................... 5
Va. Const. of 1830, art. III, § 6 .................................. 7
Wyo. Const. art. VI, § 12 .......................................... 14
STATUTES
28 U.S.C. § 1253 ....................................................... 30
28 U.S.C. § 2284(a)................................................... 30
Act of Dec. 24, 1779, ch. 15, § 7,
1779 N.J. Acts 34 ................................................ 12
Act of Feb. 13, 1787, ch. 14, § 4,
1787 N.Y. Laws 316 ............................................ 11
Act of Jan. 3, 1800, ch. 50, § 1,
1799 Md. Laws 27 ............................................... 11
Act of March 28, 1797, ch. 62,
1797 N.Y. Laws 441 ............................................ 12
xi
Ariz. Rev. Stat. § 16-452(B) ..................................... 19
Cal. Gov’t Code § 12172.5(d) .................................... 19
Minn. Stat. Ann. § 204D.11(1) ................................. 28
N.C. Gen. Stat. § 163-1 ............................................ 28
Nev. Rev. Stat. § 293.247 ......................................... 18
Or. Rev. Stat. § 246.150 ........................................... 18
Tex. Elec. Code § 31.004(a) ...................................... 19
Tex. Elec. Code § 43.001 .......................................... 28
EXECUTIVE AND LEGISLATIVE MATERIALS
Fla. Exec. Order No. 19-262 (Nov. 29, 2019)........... 27
S.J. Res. 48, 58th Leg., 2d Sess. (Okla. 2022) ......... 20
OTHER AUTHORITIES
14 Annals of Cong. 850 (1804) ................................... 7
Articles of Confederation of 1781, art. V ................... 5
Cal. Proposition 14 (2010)........................................ 20
The Federalist No. 47 (James Madison)
(J. Cooke ed., 1961) ............................................... 5
Mark S. Krass, Debunking the Non-Delegation
Doctrine for State Regulation of Federal
Elections, 108 Va. L. Rev. 1091 (2022) ......... 11, 12
xii
Justin Levitt, Failed Elections and the
Legislative Selection of Presidential
Electors, 96 N.Y.U. L. Rev. 1052 (2021) ............. 25
Nat’l Conference of State Legislatures, Polling
Places (Oct. 20, 2020).......................................... 26
Joshua Perry & William Tong, Protecting
Voting Rights After 2020: How State
Legislatures Should Respond to Restrictive
New Trends in Election Jurisprudence,
53 Conn. L. Rev. Online 1 (2021) ....................... 30
Michael C. Pollack, Courts Beyond Judging,
46 B.Y.U. L. Rev. 719 (2021) .............................. 17
Saikrishna B. Prakash & John C. Yoo, The
Origins of Judicial Review,
70 U. Chi. L. Rev. 887 (2003) ............................... 8
Hayward H. Smith, Revisiting the History of
the Independent State Legislature Doctrine,
53 St. Mary’s L.J. 445 (2022)............................ 6, 7
Michael Weingartner, Liquidating the
Independent State Legislature Theory, 46
Harv. J.L. & Pub. Pol’y __ (forthcoming
2023) ........................................................... 6, 8, 14
U.S. Election Assistance Commission, Election
Administration and Voting Survey 2020
Comprehensive Report (Aug. 16, 2021) .............. 26
INTRODUCTION AND
INTEREST OF AMICI CURIAE
In our federalist system, the Constitution leaves to
“States” the primary “power to regulate elections.”
Shelby County v. Holder, 570 U.S. 529, 543 (2013)
(internal quotation marks omitted) (quoting Gregory
v. Ashcroft, 501 U.S. 452, 461-62 (1991)). In carrying
out that critical constitutional duty, an array of state
actors work together to enable citizens to cast votes
and states to count them. Legislatures pass and
Governors sign election laws, courts interpret those
laws, officials implement them, and at times voters
directly enact election provisions.
According to petitioners, however, this cooperative
system of election administration that states have
relied on for decades to administer elections is
constitutionally suspect. Based on an ahistorical
reading of the Constitution’s Elections Clause,
petitioners theorize that election rules pass
constitutional muster only when explicitly enacted by
state legislatures. Pet’rs Br. 4. Perhaps balking at
the breadth of this proposed rule, petitioners’ amici
take a different view, suggesting that the Elections
Clause establishes a clear-statement rule for state
election laws, Arkansas Br. 11, or requires federal
oversight of state court decisions to ensure a “fair
reading” of state law, Republican Nat’l Comm. Br. 19
(quoting Bush v. Gore, 531 U.S. 98, 115 (2000)
(Rehnquist, C.J., concurring)). None of those
approaches can be squared with either the history or
present state of election administration, and each
could result in insurmountable practical difficulties
for states. Accordingly, the District of Columbia, and
the States of Illinois, California, Colorado,
2
Connecticut, Delaware, Hawaii, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Nevada, New
Jersey, New Mexico, New York, Oregon,
Pennsylvania, Rhode Island, Vermont, Washington,
and Wisconsin (“Amici States”) file this brief as amici
curiae in support of respondents.
For Amici States, fundamental constitutional
principles are at stake. The Constitution leaves to
“States” the sovereign right “to structure themselves
as they wish” and “conduct their affairs through a
variety of branches, agencies, and elected and
appointed officials.” Berger v. N.C. State Conf. of the
NAACP, 142 S. Ct. 2191, 2197 (2022). In exercising
that power when carrying out their constitutional
duty to regulate elections, Amici States have long
administered elections through various organs of
state government.
Amici States’ experience regulating elections
reveals how unsound petitioners’ theory is from a
historical perspective and how problematic the theory
would be for states in practice. For one, the theory
ignores a lengthy history of states relying on all
institutions of state government—not just state
legislatures—to issue and implement election rules.
For another, the theory would undermine states’ role
in our federalist system by second-guessing state
court rulings on state law and potentially re-ordering
which state entities can oversee elections. Finally,
the theory could destabilize state election
administration by subjecting commonplace state
election rules to constitutional challenge and creating
an untenable scheme under which state and federal
elections—which are usually held on the same days in
3
the same polling places using the same ballots—
would operate under different rules. Because clear
and consistent rules are vital to election
administration, this Court should reject petitioners’
invitation to upend settled state practices.
SUMMARY OF ARGUMENT
1. Petitioners seek a novel rule requiring states to
regulate the time, place, and manner of federal
elections using only one arm of state government—
their legislatures.
That proposal suffers from
multiple flaws, including that it cannot be squared
with the historical record.
Indeed, since the
Founding, states have employed a wide variety of
institutions of state government, including state
constitutions, state courts, and state executive
officials, to set and implement the rules governing
federal elections. Petitioners’ theory would call into
question centuries of established practice among the
states.
2. Petitioners’ theory is divorced not only from
how states have run elections in the past but also how
states run elections now.
Today, different
components of state governments—legislatures,
executives, courts, election administrators, and
commissions, among other state entities—all perform
crucial roles in elections. Petitioners’ theory would
thus raise constitutional questions about large
swaths of state election law. But even the somewhat
narrower theories advanced by petitioners’ amici
threaten enormously disruptive consequences:
federalism will be undermined, single elections will be
governed by different rules for state and federal races,
federal-court lawsuits in an emergency posture will
4
multiply, and courts and parties alike will struggle to
manage unworkable legal standards. The Elections
Clause should not be read to impose such damaging
consequences on states and voters.
ARGUMENT
I. State Constitutions, Courts, And Officials
Have Historically Played An Integral Role In
Regulating Federal Elections.
Under our federal system, each state is entitled to
order “the structure of its government” in the manner
of its choosing. Gregory, 501 U.S. at 460. Petitioners’
central claim is that the Elections Clause displaces
that “fundamental” authority, id., when a state
regulates federal elections, requiring states to act in
this area only by state statute, and to permit their
legislatures to operate independently of any
constraints imposed by state constitutions. That view
cannot be squared with the historical record.
Indeed, states have historically regulated the
“Times, Places and Manner” of holding elections for
federal offices, U.S. Const. art. I, § 4, by employing
many different institutions of state government—
including the regulation of elections by state
constitutions, judicial review of state legislative
enactments by state courts, and the implementation
of those enactments by election officers. The states’
“[l]ong settled and established practice” refutes
petitioners’ principal claim that only state
legislatures may act in this area, and, at the least, has
“great weight in a proper interpretation of
constitutional provisions.” Chiafalo v. Washington,
140 S. Ct. 2316, 2326 (2020) (quoting The Pocket Veto
Case, 279 U.S. 655, 689 (1929)); see also Smiley v.
5
Holm, 285 U.S. 355, 369 (1932) (relying on “the
established practice in the states” to reject a version
of petitioners’ theory). The states’ practice of dividing
power among institutions is also consistent with the
bedrock idea underlying our system of government:
that absolute power concentrated in a single branch
“may justly be pronounced the very definition of
tyranny.” The Federalist No. 47, at 324 (James
Madison) (J. Cooke ed., 1961).
A. To start, state constitutions provided rules for
federal elections both before and after the Founding.
Before the Constitution was ratified, the Articles of
Confederation, much like the Constitution, gave state
“legislatures” a role in regulating federal elections,
providing that state delegates to Congress would be
“appointed in such manner as the legislature of each
State shall direct.” Articles of Confederation of 1781,
art. V (emphasis added).
But the Articles’ reference to “legislatures” in this
context did not deprive states of their authority to set
conditions
on
legislative
power via
state
constitutions, as all states understood.
The
constitutions of this era make that clear.
As
petitioners concede (at 31-32), ten state constitutions
expressly limited their legislatures’ ability to regulate
the manner in which those legislatures selected
delegates for Congress (by providing, for instance,
that legislatures must select delegates by “joint
ballot”). 1 At least in the years just before the
See Del. Const. of 1776, art. XI; Md. Const. of 1776,
art. XXVII; N.C. Const. of 1776, art. XXXVII; Pa. Const. of 1776,
§ 11; Va. Const. of 1776, Delegates; Ga. Const. of 1777, art. XVI;
1
6
ratification of the Constitution, then, it was broadly
understood that a simple reference to state
“legislatures,” standing alone, did not deprive states
of their authority to employ all institutions of state
government to accomplish their ends.
The same was true after the ratification of the
Constitution. In the forty years after ratification, at
least ten states incorporated provisions in their state
constitutions governing the manner of holding federal
elections. Two—Delaware and Maryland—expressly
established rules governing such elections, with
Delaware requiring that elections for members of
Congress be held “at the same places” and “in the
same manner” as elections for state representatives,
and Maryland requiring that all elections, state and
federal, be held “by ballot.” Del. Const. of 1792,
art. VIII, § 2; Md. Const. of 1776, art. XIV (1810).
Another eight state constitutions stated that “all
elections” must be held by ballot or, in one case, by
voice vote. 2 And in 1830, Virginia adopted a new
N.Y. Const. of 1777, art. XXX; S.C. Const. of 1778, art. XXII;
Mass. Const. of 1780, ch. IV (annulled 1788); N.H. Const. of 1784,
pt. II, Delegates to Congress (repealed 1792).
2 Ga. Const. of 1789, art. IV, § 2; Pa. Const. of 1790, art. III,
§ 2; Ky. Const. of 1792, art. III, § 2; Tenn. Const. of 1796, art. III,
§ 3; Ohio Const. of 1803, art. IV, § 2; La. Const. of 1812, art. VI,
§ 13; Ala. Const. of 1819, art. III, § 7; N.Y. Const. of 1821, art. II,
§ 4. States continued to incorporate provisions of this nature in
their constitutions throughout the 1800s and beyond. See
Hayward H. Smith, Revisiting the History of the Independent
State Legislature Doctrine, 53 St. Mary’s L.J. 445, 506-08 (2022);
Michael Weingartner, Liquidating the Independent State
Legislature Theory, 46 Harv. J.L. & Pub. Pol’y __ (forthcoming
2023) (manuscript at 37-40), https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=4044138.
7
constitution expressly stating that its Members of
Congress should be “apportioned as nearly as may be,
amongst the several counties, cities, boroughs, and
towns . . . according to their respective numbers”—
i.e., proportionally. Va. Const. of 1830, art. III, § 6.
States, in other words, continued even after the
Constitution’s ratification to provide rules for the
manner of holding federal elections not merely by
state statute, but also by state constitution.
Petitioners’ objections to this account (at 25-39)
are without foundation. Petitioners repeatedly assert
that only a handful of states expressly regulated the
manner of holding federal elections in the early years
of the Republic, e.g., Pet’rs Br. 32, 38, but that claim
depends entirely on petitioners’ belief that the state
constitutional provisions cited above (providing that
“all” elections should be conducted in some manner or
other) should be read to apply only to state elections,
see id. at 39. But “‘[a]ll’ means ‘all,’” In re Grand Jury
Subpoena, 912 F.3d 623, 628 (D.C. Cir. 2019)—i.e., all
elections, federal and state. And, indeed, shortly after
one of these provisions—Pennsylvania’s—was added
to that state’s constitution, it was invoked in a floor
contest over the election of a Member of Congress,
with one of the Pennsylvania constitution’s drafters
explaining that the “constitution . . . prescribe[d] the
manner that citizens shall vote,” i.e., “by ballot.” 14
Annals of Cong. 850 (1804); see Smith, supra, at 48889 (recounting this episode). As this Court has
explained, then, the Elections Clause did not “endow
the Legislature of the state with power to enact laws”
unencumbered by state constitutions, Smiley, 285
U.S. at 368; indeed, the historical record reflects that
states continually exercised their authority in this
8
area to control their legislatures through state
constitutions.
B. State courts, too, have for centuries played an
integral role in shaping the rules that govern federal
elections, primarily by interpreting and applying the
state constitutional provisions described above. State
courts exercised judicial review over state statutes
even before the 1788 ratification of the Constitution.
Saikrishna B. Prakash & John C. Yoo, The Origins of
Judicial Review, 70 U. Chi. L. Rev. 887, 933 (2003).
And state courts continued to do so under the new
Constitution, id. at 976, playing a profound role in
shaping the legal order in the states.
Importantly, state courts exercised that authority
in reviewing cases involving federal elections and the
statutes that governed them.
For instance, as
petitioners’ amici concede, Lawyers Democracy Fund
Br. 10-11, several state courts struck down Civil Warera state laws regulating federal elections on the
ground that they conflicted with state constitutions.
See, e.g., In re Op. of Justs., 30 Conn. 591, 591-92
(1862); Chase v. Miller, 41 Pa. 403, 428-29 (1862);
People ex rel. Twitchell v. Blodgett, 13 Mich. 127, 14243 (1865).
And the Civil War cases were hardly outliers. In
a range of nineteenth- and twentieth-century cases,
state courts applied state constitutional provisions to
review (and, in some cases, hold invalid) state laws
regulating federal elections. See Weingartner, supra,
at 40-43. After the advent of the modern two-party
system in the late 1800s, for instance, state courts
played an active role in reviewing the statutes passed
by state legislatures regulating ballot access—
9
statutes that applied to federal and state elections
alike. To take just one example, courts in at least
seven states considered whether laws requiring
candidates for office to pay fees to have their names
placed on the ballot violated state constitutional
provisions—often “free and equal” clauses of the kind
the state courts applied here. State courts divided,
with some courts striking down such laws and some
upholding them. 3
But no court questioned its
authority to review these statutes for compliance with
state constitutional law in the first place.
Around the same time, state courts also applied
state constitutional law to a range of other disputes
regarding state statutes that regulated both federal
and state elections. As just a few examples, state
courts
adjudicated
cases
challenging
the
constitutionality of laws limiting the placement of any
candidate’s name on a ballot to one party line, 4
Compare, e.g., People ex rel. Breckton v. Bd. of Election
Comm’rs of Chi., 221 Ill. 9, 23 (1906) (fee unconstitutional); State
ex rel. Adair v. Drexel, 74 Neb. 776, 793 (1905) (same);
Ledgerwood v. Pitts, 122 Tenn. 570, 611-12 (1909) (same); Kelso
v. Cook, 184 Ind. 173, 202 (1916) (same), with State ex rel.
Thompson v. Scott, 99 Minn. 145, 148 (1906) (fee constitutional);
State ex rel. Zent v. Nichols, 50 Wash. 508, 520 (1908) (same);
Socialist Party v. Uhl, 155 Cal. 776, 790 (1909) (same).
3
4 Compare, e.g., Murphy v. Curry, 137 Cal. 479, 486 (1902)
(statute limiting candidates to one ballot line unconstitutional);
Hopper v. Britt, 203 N.Y. 144, 158 (1911) (same), with Todd v.
Bd. of Election Comm’rs, 104 Mich. 474, 487-488 (1895) (statute
limiting candidates to one ballot line constitutional); State ex rel.
Bateman v. Bode, 55 Ohio St. 224, 232 (1896) (same).
10
authorizing the use of voting machines, 5 requiring
voters to register within certain periods of time, 6 and
more. Again, these state courts reached different
conclusions regarding the constitutionality of such
laws, but they uniformly did so without questioning
whether they could resolve the challenges in the first
place.
Petitioners and their amici thus err in asserting
that the North Carolina Supreme Court’s opinion
“resembles no state-court decision before 2018.”
Lawyers Democracy Fund Br. 6; accord Pet’rs Br. 2526. They can make this claim only by describing the
state court’s opinion below in artificially narrow
terms: by focusing on its invalidation of a
congressional map based on North Carolina’s “free
and equal” provision.
But petitioners offer no
principled basis for limiting their proposed rule to
that context, rather than to all cases in which state
courts exercise judicial review over matters
concerning federal elections. The result is that
petitioners’ rule, if adopted, would call into question
state court opinions going back nearly two centuries
and dramatically curtail the role that state courts
5 Compare, e.g., Nichols v. Minton, 196 Mass. 410, 414 (1907)
(statute allowing use of voting machines unconstitutional); State
ex rel. Karlinger v. Bd. of Deputy State Supervisors of Elections,
80 Ohio St. 471, 490 (1909) (same), with City of Detroit v. Bd. of
Inspectors, 139 Mich. 548, 557 (1905) (statute allowing use of
voting machines constitutional); Lynch v. Malley, 215 Ill. 574,
582 (1905) (same).
6 E.g., Morris v. Powell, 125 Ind. 281, 291 (1890) (statute
requiring all voters to re-register after absence of six months or
more unconstitutional); Perkins v. Lucas, 197 Ky. 1, 14 (1922)
(statute setting one day for voter registration unconstitutional).
11
have historically played in ensuring that state
legislatures stay within the limits of the state
constitutions that created them, for election law no
less than any other area.
C. Finally, state and local executive-branch
officials oversaw and administered elections for
federal office for centuries, including during and
immediately after the Founding. State officers and
agencies have done so both using their inherent
powers as executives and employing powers expressly
shared with them by state legislatures. In doing so,
state officers have exercised substantial discretion,
playing a significant role in regulating federal
elections.
To begin, state and local elections officials played
key roles regulating federal elections at the Founding.
It was election officials, not state statutes, for
instance, that determined the “Places,” U.S. Const.
art. I, § 4, where voters would cast ballots in at least
seven of the first thirteen states. 7
Local officials likewise exercised significant power
over when and how federal elections were held in the
early years of the Republic. Officials in at least eight
states had the authority to determine exactly when
the polls would open and close, and officials in at least
7 E.g., Act of Feb. 13, 1787, ch. 14, § 4, 1787 N.Y. Laws 316,
317 (directing election officials to select “the place. . . where such
election . . . next shall be held”); Act of Jan. 3, 1800, ch. 50, § 1,
1799 Md. Laws 27 (directing election officials to “make choice of
a place in each district, at which the elections shall be held”); see
Mark S. Krass, Debunking the Non-Delegation Doctrine for State
Regulation of Federal Elections, 108 Va. L. Rev. 1091, 1113-29
(2022) (canvassing historical sources).
12
four of those eight could “adjourn” elections, deciding
at their discretion that polls would remain open until
the following day. 8 And although some states chose
to “specif[y]” by state statute “the procedures to be
used at the polls in excruciating detail,” others made
the opposite choice, granting significant discretion to
executive officials to decide not only where and when
elections should be held, but also how—including, for
instance, whether ballots would remain secret or not.
Krass, supra, at 1127-29.
Petitioners’ contention that the Elections Clause
“does not allow a state legislature to delegate away
the authority assigned to it,” Pet’rs Br. 44-45, thus
cannot be squared with the historical record. To the
contrary, states have chosen, since the Founding, to
make such delegations, consistent with their timehonored right to “structure themselves as they wish.”
Berger, 142 S. Ct. at 2197.
II. Petitioners’ Theory Threatens States’ Ability
To Administer Federal Elections.
To conduct orderly, fair, and accurate elections,
states rely on election rules implemented and
interpreted by a variety of state institutions—
including courts. Petitioners’ argument that only
state legislatures may regulate elections, however,
would cast doubt on routine elements of election
8 See, e.g., Act of Dec. 24, 1779, ch. 15, § 7, 1779 N.J. Acts 34,
37 (granting election officials “full Power . . . to close” polls when
all voters had voted or “a reasonable time for that Purpose shall
have been allowed”); Act of March 28, 1797, ch. 62, 1797 N.Y.
Laws 441, 443 (authorizing officials to “continue[] elections by
adjournment, if necessary, from day to day, not exceeding five
days”); see Krass, supra, at 127-32.
13
administration. Even the alternative proposals of
petitioners’ amici could upend settled practices—
undermining federalism, mandating different rules
for state and federal elections, and subjecting states
and federal courts to increased, last-minute
emergency litigation governed by murky standards.
That outcome would hamper states’ ability to
predictably manage the sensitive task of casting and
counting ballots in federal elections.
A. State constitutions, courts, executive
officials, and others routinely set rules
governing elections.
What was true historically is still true today:
legislatures are far from the only source of
contemporary election law in the states. Justifying
their reputation as laboratories of democracy, states
variously rely on their constitutions, courts,
executives, local administrators, and citizens to set
election rules. Petitioners’ theory, in its strongest
form, could cast doubt on each of these practices.
1. State constitutions contain crucial election
rules.
“Core aspects” of election law, like “voter
registration, absentee voting, vote counting, and
victory thresholds,” can stem from state constitutions,
not simply state legislation. Ariz. State Legislature v.
Ariz. Indep. Redistricting Comm’n (“AIRC”), 576 U.S.
787, 823 (2015) (footnotes omitted); see also Rucho v.
Common Cause, 139 S. Ct. 2484, 2507 (2019)
(explaining that “state constitutions can provide
standards and guidance” for addressing election
issues including partisan gerrymandering). Stripping
state constitutions of their election-law functions, as
14
petitioners propose, would thus threaten to create
serious difficulties for states. For example, state
constitutions often include fundamental election
rules, like those establishing that votes must be cast
by ballot, e.g., Ind. Const. art. II, § 13; Md. Const.
art. I, § 1, identifying who is eligible to vote, e.g., N.J.
Const. art. II, § 3; Tex. Const. art. VI, § 1, and
restricting how voters can participate in the electoral
process, e.g., La. Const. art. XI, § 2 (banning proxy
voting); Wyo. Const. art. VI, § 12 (prohibiting those
who fail to register from voting). These provisions
also include extremely specific election rules that
leave legislatures little discretion, like those creating
a nonpartisan primary system, Cal. Const. art. II, § 5,
or specifying who may vote absentee, Pa. Const.
art. VII, § 14. Put simply, state constitutions often
resemble statutes in regulating elections at a
granular level. See Weingartner, supra, at 36-40
(cataloguing detailed state constitutional provisions
regulating elections).
These constitutional provisions, which apply to
both state and federal elections, can bind state
legislatures in the context of federal elections.
Legislatures are themselves “the creature of the
[state] Constitution, and the powers of the creature
cannot under any circumstances rise above those of
its creator.” Allen v. Scott, 135 N.E. 683, 685 (Ohio
1922); see also, e.g., Coleman v. State ex rel. Race, 159
So. 504, 507 (Fla. 1935); City of Providence v. Moulton,
160 A. 75, 77 (R.I. 1932). The notion that state
constitutions cannot limit legislatures thus makes
little sense. Indeed, state legislatures themselves
often have a hand in establishing and amending
constitutions. See, e.g., S.C. Const. art. XVI, § 1. That
15
other actors may be involved in adopting such
provisions makes no difference.
As this Court
recently recognized, state constitutional provisions
adopted in processes that do not involve the
legislature alone—like conventions or initiatives—
remain valid under the Elections Clause. AIRC, 576
U.S. at 822-24.
2. State courts referee disputes over election
law.
State courts are integral to the states’ election
apparatus. They review legislative acts for their
constitutionality, construe laws whose meaning is
disputed, and participate in redistricting as required
by state law. Petitioners would jettison many, if not
all, of these longstanding functions of state
judiciaries. At the very least, petitioners and their
amici would subject state judges to second-guessing
by federal courts, undermining state sovereignty and
disregarding the vital role state judges play in
resolving state-law disputes.
State courts routinely review state election
statutes for their compatibility with state
constitutions. Through this judicial-review function,
state courts enforce the boundaries of permissible
election regulation set by the people in the state’s
foundational document. See, e.g., McLinko v. Dep’t of
State, 279 A.3d 539, 565 (Pa. 2022) (reviewing
universal vote-by-mail statute); City of Memphis v.
Hargett, 414 S.W.3d 88, 101 (Tenn. 2013) (reviewing
voter identification law); Walsh v. Katz, 953 N.E.2d
753, 759-60 (N.Y. 2011) (reviewing residency
requirement); Favorito v. Handel, 684 S.E.2d 257, 262
(Ga. 2009) (reviewing adoption of an electronic voting
16
system). This judicial-review function, which is
standard fare for the state courts, is at risk under any
form of petitioners’ theory. See Pet’rs Br. 49.
Because state constitutions and even statutes
sometimes lack the specificity required to neatly
address every election-related issue, their meaning is
frequently contested. State courts thus also play an
indispensable role as the final arbiter of what state
election law means.
See, e.g., Abbott v. AntiDefamation League Austin, Sw., & Texoma Regions,
610 S.W.3d 911, 918, 926 (Tex. 2020) (per curiam)
(Blacklock, J., concurring) (“In an ideal world, we
would look no further than the Election Code. As
recent events vividly demonstrate, however, we do not
live in an ideal world.”); State Election Bd. v. McClure,
189 N.E.2d 711, 713 (Ind. 1963) (“Since the Indiana
Election Code is not certain and specific . . . , it is
incumbent upon the judiciary to interpret the
statute.”). By settling the meaning of broadly worded
or disputed provisions, state courts provide clear and
uniform rules for other branches, voters, and election
workers to follow.
In the statutory context, state courts have resolved
issues like whether COVID-19 qualifies as a
“disability” entitling a voter to vote by mail, In re
State of Texas, 602 S.W.3d 549, 550 (Tex. 2020), and
whether a provision closing the polls at 6:00 p.m.
refers to eastern or central time, McClure, 189 N.E.2d
at 713. Regarding state constitutional provisions,
state courts play a similar role, applying and
interpreting constitutional provisions using statespecific interpretive methods.
See, e.g., In re
Interrogatories on Sen. Bill 21-247 Submitted by Colo.
17
Gen. Assembly, 488 P.3d 1008 (Colo. 2021)
(interpreting new amendments to Colorado’s
Constitution governing redistricting); In re Sen. Joint
Resol. of Legislative Apportionment 1176, 83 So. 3d
597, 614 (Fla. 2012) (similar under Florida
Constitution). In doing so, state courts give specific
meanings to broadly worded—but important—
constitutional guarantees, just as this Court
“deduce[s]” specific rules from the Federal
Constitution’s “great outlines.”
M’Culloch v.
Maryland, 17 U.S. 316, 407 (1819); see Conf. of Chief
Justices Br. 17 (explaining how state and federal
courts “have long crafted extensive and complex legal
doctrines from . . . general language without . . .
acting as legislators”).
It is unclear, under
petitioners’ theory, to what extent state courts retain
the authority to say what the law is.
Beyond these functions, state courts are
sometimes responsible for the important role at issue
in this very case—redistricting. See Michael C.
Pollack, Courts Beyond Judging, 46 B.Y.U. L. Rev.
719, 751 (2021) (“In roughly half the states, judges
play important roles in redistricting . . . that operate
wholly outside the context of dispute resolution.”). In
some states, state constitutions direct courts to draft
remedial maps when legislatures draw invalid ones.
See Ark. Const. art. VIII, § 5; Fla. Const. art. III, § 16.
In other states, judges serve as tiebreakers when
other institutions cannot agree on a map. See, e.g.,
Miss. Const. art. XIII, § 254. This Court long ago
endorsed state courts’ redistricting role, explaining
that “[t]he power of the judiciary of a State to require
valid reapportionment or to formulate a valid
redistricting plan has not only been recognized by this
18
Court but appropriate action by the States in such
cases has been specifically encouraged.” Scott v.
Germano, 381 U.S. 407, 409 (1965). Petitioners’
narrow view of the permissible role of state judges
does not square with this well-established function.
See Pet’rs Br. 20.
3. Election administrators set and implement
rules necessary to conduct elections.
Election laws are not self-implementing. An array
of election administrators—including governors,
secretaries of state, state agencies, and local
officials—work to conduct orderly elections. See
Democratic Nat’l Comm. v. Wis. State Legislature
(“DNC”), 141 S. Ct. 28, 31 (2020) (mem.) (Kavanaugh,
J., concurring in denial of application to vacate stay)
(explaining
the
importance
of
elections
administrators).
Given
the
on-the-ground
contingencies that elections often entail, legislatures
share
considerable
authority
with
election
administrators, who put election laws into practice.
See, e.g., Nev. Rev. Stat. § 293.247 (giving secretary of
state power to “provide interpretations and take other
actions necessary for the effective administration
of . . . elections”); Or. Rev. Stat. § 246.150 (giving
secretary of state power to “adopt rules” to achieve
“correctness,
impartiality
and
efficiency
in
administration of the election laws”). A rule that puts
election regulation solely in the hands of the
legislature, with no ability for delegation to state and
local administrators, would upset these existing (and
necessary) arrangements.
In
exercising
their
authority,
election
administrators routinely clarify and implement
19
election rules. For example, officials often interpret
election codes and fill in statutory gaps. See, e.g.,
George v. Hargett, 879 F.3d 711, 716 (6th Cir. 2018)
(officials prescribed method of vote-counting based on
their interpretation of state law). They promulgate
rules, issue guidance, or take other actions that
significantly affect elections. See, e.g., Ariz. Rev. Stat.
§ 16-452(B) (requiring the secretary of state to issue
an “official instructions and procedures manual”);
Tex. Elec. Code § 31.004(a) (directing secretary of
state to “advise all election authorities with regard to
the application, operation, and interpretation of this
code”); Cal. Gov’t Code § 12172.5(d) (giving secretary
of state authority to “adopt regulations”). Some of
these administrative actions do not occur strictly in
the confines of election law; for example, officials
make decisions that indirectly affect elections, like
issuing public health and safety rules. See, e.g.,
Libertarian Party of Pa. v. Wolf, Civ. A. No. 20-2299,
2020 U.S. Dist. Lexis 124200, at *22-24 (E.D. Pa. July
14, 2020) (describing how the governor’s generally
applicable stay-at-home orders affected political
parties’ ability to gather signatures and qualify for
the ballot), aff’d, 813 F. App’x 834 (3d Cir. 2020);
Stringer v. Whitley, 942 F.3d 715, 719 (5th Cir. 2019)
(describing Texas Department of Public Safety’s
online driver license renewal system that asked voter
registration questions).
States differ in how they divide power among
various elections administrators.
Some states
concentrate their authority in their secretaries of
state. E.g., Tex. Elec. Code § 31.004(a). Others
diffuse power across local boards and officials. E.g.,
Zignego v. Wis. Election Comm’n, 957 N.W.2d 208,
20
212-13 (Wis. 2021) (describing how Wisconsin
distributes power between a “state election agency”
and “a small army of local election officials”). This
“variation” in election administration “reflects our
constitutional system of federalism.” DNC, 141 S. Ct.
at 32 (Kavanaugh, J., concurring). Under petitioners’
extreme theory, this variation too could be under
threat.
4. Voters establish election rules through direct
democracy.
Voters themselves exercise power over elections in
direct ways that bypass legislatures. Petitioners’
theory, in its strongest form, could jeopardize these
methods of direct democracy. In many states, voters
can adopt election rules through ballot initiatives.
See AIRC, 576 U.S. at 822 (cataloguing examples); see
also, e.g., Op. of Justs., 162 A.3d 188, 206-07 (Me.
2017) (describing how Maine adopted rank-choice
voting by initiative); Santa Clara Cnty. Local Transp.
Auth. v. Guardino, 902 P.2d 225, 253 (Cal. 1995) (en
banc) (explaining that, in California, “the initiative is
the constitutional power of the electors ‘to propose
statutes’” (quoting Cal. Const. art. II, § 8(a))).
Through such initiatives, several states have created
independent redistricting commissions. See Rucho,
139 S. Ct. at 2507 (noting recent examples). Voters
may also hold a veto power over election regulations
through statewide referenda. E.g., S.J. Res. 48, 58th
Leg., 2d Sess. (Okla. 2022) (ballot initiative proposing
constitutional
amendment
requiring
voter
identification);
Cal.
Proposition
14
(2010)
(constitutional amendment proposed by Legislature
and approved by voters creating nonpartisan blanket
21
primary system); see generally Neb. Const. art. 3, § 1
(establishing “the power of referendum”).
This Court has already approved these methods,
explaining that the “Elections Clause . . . is not
reasonably read to disarm States from adopting
modes of legislation that place the lead rein in the
people’s hands.” AIRC, 576 U.S. at 816; see also Davis
v. Hildebrant, 241 U.S. 565, 569 (1916) (approving
state’s use of referendum on redistricting plan).
Petitioners ask this Court to overrule that precedent
in a footnote bereft of any stare decisis analysis.
Pet’rs Br. 40 n.9. This Court should reject petitioners’
invitation. Notably, this settled precedent illustrates
why petitioners’ central thesis—that only state
legislatures may regulate the time, place, and manner
of federal elections—cannot be right.
B. Petitioners’ theory undermines state
sovereignty and could upend existing
election administration.
Petitioners’ primary theory takes no account of the
myriad state election practices that do not involve the
legislature, and, if adopted, could seriously disrupt
existing election practices. Even the alternative
theories suggested by petitioners’ amici—which
include clear-statement rules for election-related
constitutional provisions, Arkansas Br. 11, or federalcourt intervention to ensure a “fair reading” of state
law, Republican Nat’l Comm. Br. 19 (citation
omitted)—would create confusion, call existing
precedent into question, and inundate states with
election-related litigation.
To begin, even a weakened version of petitioners’
theory would undermine state sovereignty, with
22
federal courts routinely interfering with the
functioning of state courts and state election law. For
another thing, petitioners’ approach could call into
question longstanding rules governing elections.
Perhaps most problematically, last-minute federal
court decisions second-guessing state law could leave
states with differing rules for state and federal
elections occurring at the same time with little
forewarning, placing them in an untenable position.
And states would certainly face increased emergency
litigation, forcing them to guess which state
constitutional provisions and court decisions might be
invalidated under the Elections Clause.
Those
practical problems counsel against the novel rules
petitioners and their amici suggest.
1. Petitioners’ theory would upset states’ role in
our federalist system.
Any version of petitioners’ theory would intrude on
state sovereignty. In our federalist system, states
have long had the authority to adopt constitutions,
establish governments, and enact laws. In doing so,
“States retain broad autonomy in structuring their
governments.” Shelby County, 570 U.S. at 543. And
when a state enacts laws or crafts a constitution,
applying that law is generally the job of state courts.
See, e.g., McKinney v. Arizona, 140 S. Ct. 702, 708
(2020) (“[W]e may not second-guess the Arizona
Supreme Court’s characterization of state law.”);
DNC, 141 S. Ct. at 28 (Roberts, C.J., concurring)
(allowing a state court’s “modification of election
rules” and citing “the authority of state courts to apply
their own constitutions to election regulations”)
(emphasis added)).
23
Although regulation of federal elections is a
federal power delegated to the states, “the Framers
recognized that state power and identity were
essential parts of the federal balance,” so “the
Constitution is solicitous of the prerogatives of the
States, even in an otherwise sovereign federal
province,” like federal elections. U.S. Term Limits,
Inc. v. Thornton, 514 U.S. 779, 841 (1995) (Kennedy,
J., concurring). Accordingly, the Elections Clause
takes state legislatures as it finds them, subject to
state constitutions. See AIRC, 576 U.S. at 817-18
(rejecting notion that state legislatures can regulate
elections “in defiance of provisions of the State’s
constitution”). Indeed, legislatures have no existence
at all outside of the constitutions by which the people
create, empower, and limit them. Vanhorne’s Lessee
v. Dorrance, 2 U.S. (2 Dall.) 304, 308 (C.C.D. Pa. 1795)
(Patterson, J., riding circuit). Several states do not
vest their legislative power solely in a legislature.
See, e.g., AIRC, 576 U.S. at 795-96, 814 (discussing
Arizona); Or. Const. art. IV, § 1 (dividing “legislative
power” between the Legislative Assembly and the
people wielding the power of initiative and
referendum). Out of respect for the differing ways
states allocate the legislative power, this Court has
“resist[ed] reading the Elections Clause to single out
federal elections as the one area in which States may
not” allocate power as they choose. AIRC, 576 U.S. at
817.
Petitioners’ theory is hard to square with these
federalist principles. Any theory reallocating power
within state governments usurps states’ authority to
order themselves and “define[] [themselves] as a
sovereign”—even if confined to the context of election
24
law. Id. (internal quotation marks omitted) (quoting
Gregory, 501 U.S. at 460). This Court has never
interpreted the Elections Clause “to justify disregard
of the established practice in the states,” Smiley, 285
U.S. at 369, or “to diminish a State’s authority to
determine its own lawmaking processes,” AIRC, 576
U.S. at 824. Nor should it do so here.
Petitioners’ theory presents additional federalism
problems by requiring federal courts to superintend
state institutions, potentially reviewing any electionrelated actions that are not directly issued by
legislatures. At the very least, a ruling for petitioners
would put federal courts in the business of secondguessing state courts’ interpretation of state law. Yet
this Court has long recognized that it should not
“undertake to say” that a state court “had
misunderstood” state law “and therefore erect itself
into a tribunal which should correct such
misunderstanding.” Elmendorf v. Taylor, 23 U.S.
152, 159-60 (1825). The Elections Clause does not
upend that settled principle. Indeed, “this Court has
consistently rejected” a “vision of election
administration” that gives a “green light to federal
courts to rewrite dozens of state election laws around
the country.” DNC, 141 S. Ct. at 35 (Kavanaugh, J.,
concurring). It should reject that outcome here as
well.
2. Petitioners’
elections.
theory
could
destabilize
The real-world consequences of petitioners’ theory
are potentially far-reaching, casting doubt on key
election rules and threatening to place states in the
untenable position of conducting simultaneous state
25
and federal elections with conflicting rules. States
could also face multiplying federal-court litigation
and be forced to defend against amorphous claims
regarding whether their constitutions are “clear” or
their state-court interpretations “fair.” Put simply,
petitioners’ theory risks severe disruption if put into
practice.
a. Petitioners’ theory could deprive states of
key rules and actors needed to
administer elections.
Elections require “clear and settled” “rules of the
road.” DNC, 141 S. Ct. at 31 (Kavanaugh, J.,
concurring). But petitioners’ theory could upend
many of those settled rules. For instance, many
states prescribe in their state constitutions exactly
how citizens should register to vote and cast ballots.
See AIRC, 576 U.S. at 823. Under petitioners’
primary theory, however, states can set these rules
only by statute, not by constitutional provision. If
that theory prevails, states could face fundamental
questions regarding how people should register and
vote. State may also be forced to wrestle with “zombie
requirements”—“statutes struck down by a state
court” that “would suddenly be live” under petitioners’
view.
Justin Levitt, Failed Elections and the
Legislative Selection of Presidential Electors, 96
N.Y.U. L. Rev. 1052, 1058 (2021). And it is little
consolation that legislatures could reenact rules
previously established by other branches or scrap
unwanted “zombie” laws because “legislatures are
often slow to respond and tepid when they do.” DNC,
141 S. Ct. at 29 (Gorsuch, J., concurring).
26
Petitioners’ theory, taken to its extreme, could also
hamstring election administrators, who supply many
crucial details regarding the manner of elections. For
example, by statute, “[f]orty-eight states and one
territory require local officials to designate polling
locations.” Nat’l Conference of State Legislatures,
Polling Places (Oct. 20, 2020), https://tinyurl.com/
38c7cvn9. In selecting polling places, these officials
thus choose the “Places” of elections. U.S. Const.
art. I, § 4, cl. 1. Yet under petitioners’ theory, “the
Elections Clause surely does not allow a state
legislature to delegate away the authority assigned to
it by the federal Constitution.” Pet’rs Br. 44-45. It is
not clear, in petitioners’ view, whether this applies to
even seemingly routine determinations while
carrying out federal elections, such as choosing
polling place locations. Petitioners’ theory could thus
require that legislatures pass statutes establishing
the thousands of polling places required for American
elections every cycle. See U.S. Election Assistance
Commission, Election Administration and Voting
Survey 2020 Comprehensive Report 19 (Aug. 16,
2021), https://tinyurl.com/b6jk77tm (reporting that
states established 176,933 precincts and 132,556
polling places for the 2020 election). But that is
hardly practical, and petitioners offer no answer to
the necessity of delegating some election-related
details.
Under petitioners’ legislature-only theory, the
problems for election administrators would be even
worse when it comes to emergencies, which require
quick action by officials operating in scenarios not
contemplated by election codes.
Consider the
perennial emergency caused by hurricanes, which
27
often require moving voting locations or extending
deadlines. See, e.g., Fla. Exec. Order No. 19-262 (Nov.
29, 2019), https://tinyurl.com/5bj3se7c (Florida
governor suspending election statutes, moving polling
places, and changing early voting rules); Wise v.
Circosta, 978 F.3d 93, 97 n.2 (4th Cir. 2020) (en banc)
(noting that the North Carolina State Board of
Elections “regularly extends its absentee ballot
receipt deadlines in response to the hurricanes that
befall us in the autumn”). Under petitioners’ extreme
reading of the Elections Clause, thousands—possibly
millions—of voters could be deprived of an
opportunity to vote when hurricanes, wildfires, or
other natural disasters and unforeseen contingencies
make it impossible to vote at the time or place
prescribed by statute.
b. Petitioners’ theory could require different
rules for federal and state elections.
Petitioners’ theory might also result in some state
election laws being valid and mandatory for federal
elections but invalid for simultaneous state elections.
That is a problem because state and federal elections
often occur at the same times and places using the
same ballots. Disparate rules are likely because the
Elections Clause refers only to congressional elections
and thus does not affect states’ regulation of elections
for state offices. AIRC, 576 U.S. at 819.
Consider, for example, the factual context of this
case—a state constitutional challenge to a state
election statute enacted by the legislature. Under
petitioners’ theory, the Elections Clause would
foreclose that challenge as applied to federal
elections, requiring the state statute to be given
28
effect. But the very same statute may, per the state
constitution, be invalid as applied to state elections,
which typically occur at the same locations on the
same day. E.g., N.C. Gen. Stat. § 163-1(a), (c); Tex.
Elec. Code § 43.001. Because state constitutions and
election laws usually do not differentiate between
state and federal elections, this would create novel
problems. See, e.g., Va. Const. art. 2, § 1 (listing “the
qualifications of voters” in “elections by the people”);
Ariz. Const. art. 7, § 7 (setting plurality of votes as
victory threshold “[i]n all elections held by the
people”); Kuznik v. Westmoreland Cnty. Bd. of
Comm’rs, 902 A.2d 476, 490 (Pa. 2006) (describing a
provision of the Pennsylvania Constitution that “does
not differentiate between elections for federal and
state office”).
Applying two sets of rules for elections may well
be practically impossible. Consider state practices
regarding ballots. States usually craft one, unified
ballot for both federal and state offices. E.g., Minn.
Stat. Ann. § 204D.11(1); Crafts v. Quinn, 482 A.2d
825, 831 (Me. 1984). But claims under petitioners’
theory could force states to use separate ballots for
federal and state offices, if, for example, a state court
held that a certain statutory ballot requirement
violated a state constitutional provision (and thus
could not be applied in state elections) but the
Elections Clause nonetheless mandated that the
statute be given effect in federal elections. For
election administrators, that could mean double the
printing and counting, additional voter education,
increased risk of error and fraud, confusion, and
significant costs. See Kuznik, 902 A.2d at 506-07
(listing similar problems with court order resulting in
29
electronic voting systems for federal but not state
elections).
Further, in states where election
regulations apply universally to state and federal
elections—whether mandated by statute or state
constitution—court orders to use separate ballots
could make it impossible to comply with valid state
laws. See id. at 491 (“Many provisions of the Code
could not be fulfilled if we were to affirm the dual
system that [a court] ordered.”).
And dual ballots are only the beginning. Imagine,
for example, rulings that might require polling places
to remain open on different dates and times for state
and federal elections. Cf. In re Gen. Election-1985,
531 A.2d 836, 839 (Pa. Commw. Ct. 1987) (holding
that a court, pursuant to delegated authority, could
order polls closed due to flooding and resume the
election two weeks later). Or imagine a ruling making
citizens eligible to vote in one election but not the
other, when states are otherwise permitted to use a
single ballot containing state and federal candidates.
Cf. Cmty. Success Initiative v. Moore, No. 19 CVS
15941, 2020 WL 10540948, at *6 (N.C. Super. Ct.
Sept. 4, 2020) (holding that felon disenfranchisement
law violated state constitution). Or imagine a ruling
that mandates counting late-mailed or late-received
ballots, but only for state candidates.
Cf. Pa.
Democratic Party v. Boockvar, 238 A.3d 345, 371 (Pa.
2020) (holding that the state constitution required
extension of deadline for mail-in ballots), cert. denied
sub nom. Republican Party of Pa. v. Degraffenreid,
141 S. Ct. 732 (2021). Such regimes would not only
frustrate state election administrators, but could
confuse or disenfranchise voters and introduce a
higher risk of error in tabulating votes. And given the
30
emergency nature of much election litigation, it is
highly unlikely that state legislatures could reliably
intervene to rectify the disparities.
c. Petitioners’ theory would subject states to
increased, thorny litigation in the federal
courts.
Petitioners’ theory would threaten to “bring on a
massive and destabilizing new crush of litigation”
against states in federal courts. Joshua Perry &
William Tong, Protecting Voting Rights After 2020:
How State Legislatures Should Respond to Restrictive
New Trends in Election Jurisprudence, 53 Conn. L.
Rev. Online 1, 19 (2021). This Court has previously
refused to recognize claims under the Constitution
that would give federal courts “an extraordinary and
unprecedented role” in elections. Rucho, 139 S. Ct. at
2507. Yet, were any form of petitioners’ theory
adopted, the Court would be recognizing a new claim
under the federal Constitution. And it is impossible
to estimate just how many new lawsuits states and
the federal courts would face. This Court’s own
docket may well grow because any constitutional
challenges to redistricting—which would include
claims under petitioners’ theory—are directly
appealable. See 28 U.S.C. §§ 2284(a), 1253.
The volume of potential federal litigation is
concerning—and so is its character. All claims under
petitioners’ theory involve elections, and thus “the
most intensely partisan aspects of American political
life” that federal courts generally seek to avoid.
Rucho, 139 S. Ct. at 2507. Often, election-related
claims will arise in an emergency posture and seek
time-sensitive relief. Such litigation is taxing for
31
states and can result in consequential judgments
without time and briefing for full deliberation. See
Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)
(explaining problems with preliminary injunction
proceedings); Merrill v. Milligan, 142 S. Ct. 879, 887
(2022) (mem.) (Kagan, J., dissenting) (“serious and
sustained consideration” is “impossible to give ‘on a
short fuse’” (quoting Does v. Mills, 142 S. Ct. 17, 18
(2021) (mem.) (Barrett, J., concurring))). Emergency
cases could also strain federal resources.
Moreover, the remedies for successful claims could
upend elections, with injunctions altering election
rules and courts overturning election results. Such
orders cause voter confusion while dampening
“confidence in the fairness of the election.” DNC, 141
S. Ct. at 31 (Kavanaugh, J., concurring). Although
this Court has cautioned against altering election
rules near an election, Purcell v. Gonzalez, 549 U.S. 1,
4-5 (2006) (per curiam), it also has not “fully spell[ed]
out all of [Purcell’s] contours,” Merrill, 142 S. Ct. at
881 (Kavanaugh, J., concurring); see, e.g., Carson v.
Simon, 978 F.3d 1051, 1062 (8th Cir. 2020) (per
curiam) (considering Purcell but nonetheless ordering
district court to enter an injunction). And state
supreme courts—whose decisions would suddenly be
subject to additional federal review— are not bound
by Purcell at all in adjudicating state constitutional
challenges to state election laws, increasing the
likelihood of claims arising close to elections. In short,
petitioners seek “an unprecedented expansion of
judicial power” over precisely the type of cases federal
courts disfavor. Rucho, 139 S. Ct. at 2507.
32
d. There is no workable standard to
implement petitioners’ theory.
In addition to spawning new federal litigation,
petitioners’ theory would leave courts and parties
searching for a workable standard to implement new
Elections Clause claims. For example, petitioners
suggest that the North Carolina Supreme Court
exceeded its authority under the Elections Clause by
engaging in “policymaking.” Pet’rs Br. 46. But they
do not explain the difference between “policymaking”
and construing law. At other times, petitioners
suggest that, consistent with the Elections Clause,
state courts cannot identify “novel rule[s]” based on
interpretions of “open-ended guarantees” in state
constitutions. Pet’rs Br. 46-47. But they provide no
principle to determine when a rule is “novel” or a
guarantee “open-ended.” That standard is plainly not
tenable.
Trying to fill the gap left by petitioners, some
amici propose their own standards. These proposals
suggest that state courts may apply only “clear text,”
Arkansas Br. 11, or that federal courts should
scrutinize state courts’ decisions to determine if they
offer a “fair reading” of state law, Republican Nat’l
Comm. Br. 19 (quoting Bush, 531 U.S. at 115
(Rehnquist, C.J., concurring)). These proposals, too,
suffer from fundamental flaws.
To start, clarity is often in the eye of the beholder.
“Difficult ambiguities in statutory text will inevitably
arise, despite the best efforts of legislators” to craft
straightforward language. Facebook, Inc. v. Duguid,
141 S. Ct. 1163, 1170 n.5 (2021). And that is doubly
true of constitutional provisions, which are often
33
written capaciously.
Accordingly, “[r]easonable
minds often disagree about how” election law
provisions “may reasonably be construed.” In re State
of Texas, 602 S.W.3d at 563 n.8 (Guzman, J.,
concurring) (quoting Worsdale v. City of Killeen, 578
S.W.3d 57, 77 (Tex. 2019)) (interpretive dispute over
election code). Imposing a clear-statement rule and
abrogating longstanding constitutional or statutory
provisions that do not meet this newly minted test
could wipe decades of state-law precedent off the
books. In an area like election law, where settled
rules are particularly important, the Court should
reject such a drastic move.
Even a “fair reading” approach would mire federal
courts in complex disputes better left to state courts
in the first instance.
Reviewing state courts’
interpretations for “fairness” would require
considering state-specific precedent, history, and
practices. See, e.g., Michigan v. Long, 463 U.S. 1032,
1039-40 (1983) (“The process of examining state law
is unsatisfactory because it requires us to interpret
state laws with which we are generally
unfamiliar . . . .”). And it is difficult to say when an
interpretation of a novel or expansive state-law
provision is “fair.” See, e.g., Fay v. Merrill, 256 A.3d
622, 650 (Conn. 2021) (stating that challenge to
change to absentee ballot requirements presented
state constitutional issue of first impression among
all states).
This is especially true for state
constitutional provisions, which are often more
broadly worded than statutes. Federal review of state
courts’ interpretations of those provisions will often
come down to subjective disagreements. But “[i]f
federal courts are to ‘inject [themselves] into the most
34
heated partisan issues,’” “they must be armed with a
standard that can reliably differentiate” between
permissible and impermissible interpretations.
Rucho, 139 S. Ct. at 2499 (quoting Davis v. Bandemer,
478 U.S. 109, 145 (1986) (O’Connor, J., concurring in
the judgment)). Neither petitioners nor their amici
identify such a standard.
CONCLUSION
This Court should affirm the judgment of the
North Carolina Supreme Court.
35
Respectfully submitted,
KWAME RAOUL
KARL A. RACINE
Attorney General for the Attorney General for the
State of Illinois
District of Columbia
JANE ELINOR NOTZ
Solicitor General
CAROLINE S. VAN ZILE
Solicitor General
Counsel of Record
ALEX HEMMER
Deputy Solicitor General ASHWIN P. PHATAK
Principal Deputy Solicitor
OFFICE OF THE ATTORNEY
General
GENERAL FOR THE
STATE OF ILLINOIS
ADAM J. TUETKEN
100 West Randolph St.
ARJUN P. OGALE*
Chicago, IL 60601
Assistant Attorneys General
(312) 814-5376
OFFICE OF THE ATTORNEY
jane.notz@ilag.gov
GENERAL FOR THE
DISTRICT OF COLUMBIA
400 6th St., NW, Ste. 8100
Washington, D.C. 20001
(202) 724-6609
October 2022
caroline.vanzile@dc.gov
* Admitted only in Texas
On behalf of:
ROB BONTA
Attorney General
State of California
PHILIP J. WEISER
Attorney General
State of Colorado
WILLIAM TONG
Attorney General
State of Connecticut
KATHLEEN JENNINGS
Attorney General
State of Delaware
HOLLY T. SHIKADA
Attorney General
State of Hawaii
AARON M. FREY
Attorney General
State of Maine
BRIAN E. FROSH
Attorney General
State of Maryland
MAURA HEALEY
Attorney General
Commonwealth of
Massachusetts
DANA NESSEL
Attorney General
State of Michigan
KEITH ELLISON
Attorney General
State of Minnesota
AARON D. FORD
Attorney General
State of Nevada
MATTHEW J. PLATKIN
Attorney General
State of New Jersey
HECTOR BALDERAS
Attorney General
State of New Mexico
LETITIA JAMES
Attorney General
State of New York
ELLEN F. ROSENBLUM
Attorney General
State of Oregon
JOSH SHAPIRO
Attorney General
Commonwealth of
Pennsylvania
PETER F. NERONHA
Attorney General
State of Rhode Island
SUSANNE R. YOUNG
Attorney General
State of Vermont
ROBERT W. FERGUSON
Attorney General
State of Washington
JOSHUA L. KAUL
Attorney General
State of Wisconsin
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