In Moore v. Harper,REF the Supreme Court of the United States will consider “[w]hether a State’s judicial branch may nullify the regulations” the state’s legislature enacts to govern federal elections “and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions.”REF The answer will turn on the meaning of the Constitution’s Elections Clause, which, along with its counterpart Electors Clause, directs “the Legislature” of each state to prescribe the “Manner” of federal elections in that state.REF The Moore petitioners argue that because these clauses delegate federal lawmaking power directly to state legislatures—not states generally—state courts may not apply state constitutions to override and replace them.

Criticism of this theory has tracked an unfortunate trend of hyperbole employed in recent discussion of election regulation, which is liberally offered but rarely finds support in facts, experience, or common sense. For example, after the Georgia legislature reformed the state’s election code to, inter alia, apply voter-identification requirements to absentee voting, regulate the use of ballot drop boxes, and prohibit conduct the state regards as improper influence on voters, widespread comparisons to “Jim Crow” followed.REF Similar laws in other states received the appellation “Jim Crow 2.0.”REF In fact, recent evidence suggests that voter turnout has not suffered and likely has improved under such regimes.REF

That was no surprise. The same rhetoric had already been tried and found wanting earlier in the past decade with Virginia’s voter identification requirement, which was compared to “discriminatory voting laws that existed in the lingering Jim Crow era of 1913.”REF But “[r]esearchers found that notifications about voter ID requirements did not negatively impact voter turnout, and may have actually increased turnout,”REF and when the Virginia legislature repealed the requirement, almost all voters continued to present photo identification at the polls.REF

Voting outcomes, however, have generally not deterred some activists from going nuclear in their talking points.REF One major publication, in the putative spirit of fair-mindedness, went to voters directly to ask them “[w]hy are Americans okay with voter suppression?”REF That is the election-law equivalent of “when did you stop beating your wife?”

Of course, informed citizens should be attentive to the impact of voting laws and election-law doctrines and criticize those that do more harm than good. But if Aesop’s fables taught us anything,REF it should be that not every election law reform or theory can be alleged to spell the end of democracy or racial equality. Indiscriminate comparisons of today’s election regimes to Jim Crow dilute criticisms that might be grounded in fact and do more to trivialize the grievous moral and legal wrongs of voter suppression that millions of Americans suffered than to persuade the general public of the evil supposedly lurking in seemingly commonsensical voting rules. Declarations of the end of democracy when the end of democracy is not actually nigh are likewise self-defeating, especially when they come in endless streams that do not in fact precede the end of democracy.

Yet critics of the theory proposed in Moore generally seem incapable of overcoming the temptation to mark this case, too, as the worst election-related event in history if it goes the petitioners’ way. Some have called it “the most important case for American democracy in the almost two and a half centuries since America’s founding.”REF They insist that for the Supreme Court to adopt the petitioners’ theory, sometimes called the “independent state legislature doctrine,” would “upend the very foundation of our democracy: free and fair elections.”REF It would be, in a word, “damaging.”REF

On the merits, these apocalyptic claims are no more compelling than all the others proven false by experience. This Legal Memorandum is principally concerned not with the legal arguments for and against the Moore petitioners’ position but with the assertion that their proposed holding would be dangerous to democracy. Central to that claim is the assertion that the Supreme Court would be rejecting “over two hundred years of historical practice” in the state courts,REF which are presumed to have established and preserved the right to vote as we currently understand it. The Moore respondents have been supported by many amici, and many scholars have written on this subject, but despite their considerable efforts, they have failed to show that a ruling for the Moore petitioners would pose any threat to democracy or voting rights.

Their historical analysis is equally wanting. No one has identified any state court decision invalidating a law enacted under the Elections Clause or Electors Clause for at least 70 years after the constitutional Framing. The first time courts took this step was during the Civil War, and they did so to deny active servicemembers defending the Union the right to vote. Other courts, adopting the Moore petitioners’ theory, affirmed legislative efforts to extend them the right to vote. In short, the only time until recently that this question had any national import, the theory today called “dangerous” achieved the only policy outcome anyone genuinely concerned with voting rights would desire.

From the end of the Civil War until the 21st century, what little evidence there is cuts both ways and, by consequence, against any claim of a “national consensus.”REF Some state court decisions adhered to the Moore petitioners’ theory, including at least one World War II–era decision that again ratified legislation permitting active servicemembers to vote by mail. A handful of state court decisions applied state constitutions against laws governing federal elections, generally without discussing the federal Constitution, but those decisions established no voting-rights precedent of any import. Virtually all gains in voting rights achieved in the 20th century were achieved by acts of Congress, decisions of the federal courts applying federal law, and acts of the very state legislatures we are supposed to believe cannot be trusted to legislate. The Moore amici and academics supporting their position have identified no legal doctrine essential to “democracy” that would fall away with a ruling for the Moore petitioners.

Instead, the Cassandra’s warningsREF about Moore concern highly controversial, progressive “reforms” that activists desire but cannot convince their fellow citizens to support or the Supreme Court to deem compelled by federal law. Activists have targeted laws regulating third-party ballot collection, photo identification laws, commonly used voting machines, poll hours, basic ballot-casting requirements, ballot-access laws, and laws establishing congressional district boundaries. When lawsuits seeking to rewrite state election codes failed in federal court, the question became whether state courts would ratify those rejected theories. The answer to that question has less to do with the actual content of state constitutions than it has with the identities of state judges, as some of the less scrupulous advocates of this strategy have not been shy about admitting.

Other than for those who view the election world from that hardened ideological vantage point, it is difficult to see the harm of carrying forward this nation’s tradition of trusting election-law legislation to state legislatures. Most voters believe reasonable regulation of elections is appropriate, which is why most legislatures enact reasonable election laws. When they do not, federal law is more than equal to the task of intervening. Democracy has fared perfectly well since 1789 without rule by judges, and preventing that transition of power now would preserve it.

Background

The Elections Clause as Interpreted by the Supreme Court. The Elections Clause provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”REF It is one of several constitutional provisions that assign a task to a particular component of state governments rather than to the states simpliciter.REF

• The Electors Clause of Article II, Section 1 directs each state to appoint presidential electors “in such Manner as the Legislature thereof may direct.”REF
• Article V dictates that proposed constitutional amendments be “ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof.”REF
• Article IV, Section 3 predicates establishing new states “within the Jurisdiction of any other State” on, inter alia, “the Consent of the Legislatures of the States concerned.”REF
• Article IV, Section 4 requires the United States to protect each state “against domestic Violence” “on Application of the Legislature, or of the Executive (when the Legislature cannot be convened).”REF
• Article I, Section 3 originally directed “the Legislature” of each state to choose its Senators before the Seventeenth Amendment transferred that authority to the states’ electorates.REF
• The Constitution similarly vests specific responsibilities with “the Executive Authority” of each state.REF

Provisions like these breathe federal constitutional significance into a limited class of state separation-of-powers disputes that would otherwise be resolved by state courts applying state law.REF Because of the Constitution’s precision in delegatingREF power to specific state actors, other state actors or expressions of state authority may contravene the U.S. Constitution if they purport to act “as a limitation on that power.”REF For example, in Hawke v. Smith,REF the Supreme Court held that the Ohio legislature’s ratification of the Eighteenth Amendment could not, consistent with Article V, be subject to review under the state constitution’s popular referendum procedure.REF In Leser v. Garnett,REF the Court held that “the function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution; and it transcends any limitations sought to be imposed by the people of a state.”REF And state legislatures’ power to appoint Senators before the Seventeenth Amendment was approved is generally regarded as a power beyond the constraint of state laws or authorities.REF

The Supreme Court has similarly read the reference to “the Legislature” in the Elections Clause as not delegating federal power to the states generally. In two early 20th century decisions, the Court read the Elections Clause to refer not narrowly to each state’s legislative body standing alone, but to “the method which the state has prescribed for legislative enactments.”REF

In the first, Smiley v. Holm, the Court held that a congressional redistricting plan that passed both chambers of the Minnesota legislature but was not signed by the governor did not take legal effect.REF It rejected the argument that passage by the legislature was sufficient under the Elections Clause, reasoning that the state constitution gave the governor a part in the making of state laws through “the veto power.”REF By commanding state legislatures to “prescribe[],” the Elections Clause established an “authority” that “is conferred for the purpose of making laws,” and the Court found “no suggestion…of an attempt 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 has provided that laws shall be enacted.”REF The Court cited its 1916 holding in Ohio ex rel. Davis v. HildebrantREF that a popular referendum was effective to override a legislatively adopted redistricting plan because, “by the state Constitution and laws, the referendum was treated as part of the legislative power.”REF

Nearly a century later, in Arizona State Legislature v. Arizona Independent Redistricting Commission, a divided Court extended these holdings to approve an Arizona ballot initiative amending the constitution to establish a redistricting commission and empowering it to establish congressional districts.REF The Court’s precedent, said the majority, “teaches that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”REF It “acknowledge[d]” that the “exercise of the initiative…was not at issue in our prior decisions” but saw “no constitutional barrier to a State’s empowerment of its people by embracing that form of lawmaking.”REF The dissenting opinion agreed that a legislature promulgating election rules under the Elections Clause is “required to do so within the ordinary lawmaking process” but objected that it cannot be “excluded” from that process.REF

Notwithstanding this disagreement over the Election Clause’s application in Arizona State Legislature, it remains common ground among the Court’s precedents that the Elections Clause will be satisfied if congressional-election rules are set through “the State’s lawmaking processes.”REF The Court, however, has never approved the states’ imposition of such rules outside their own lawmaking processes absent an independently sufficient federal law basis, and the Court’s care in basing its rulings on “a State’s lawmaking apparatus” seems to reject that possibility.REF

To be sure, the Supreme Court has endorsed the imposition of congressional redistricting plans by state and federal courts many times, but these holdings were founded on independent federal grounds. Specifically:

• The Court has held that legislation enacted under a state legislature’s Elections Clause authority is not immune from federal constitutional challengeREF even though older precedents suggested that the Elections Clause “conferred upon Congress exclusive authority to” override federal election laws passed by state legislatures.REF The now-controlling precedents reason that any exercise of power under the Constitution, including that of Congress,REF can and must yield if it “offend[s] some other constitutional restriction.”REF
• Once a court has identified a violation of federal law, its “powers of…equity” are “adequate” to impose a remedy,REF which in the context of redistricting includes fashioning remedial plans,REF if the legislature does not act first to remedy the federal law violation.REF
• The Supreme Court has preferred state court remedies to federal court remedies as a matter of comity and has commanded federal courts to defer to state court proceedings that may produce an effective federal law remedy.REF
• State legislatures’ Election Clause legislation is also subject to review for compliance with federal legislation enacted pursuant to Congress’s power under the Elections Clause to “make or alter” laws governing congressional elections. Because the Elections Clause affords Congress authority to “make or alter” state election laws,REF a conflict between congressional federal election laws and those enacted by state legislatures will be resolved in favor of the former.REF

This network of federal law doctrines does not read the term “Legislature” out of the Elections Clause or construe it to mean “State” or “Court.” Instead, it implements the primacy of federal constitutional guarantees over state statutes as recognized in the Elections Clause itself.REF This doctrine provides no foundation for state courts to apply state constitutional provisions to reject and replace state laws governing federal elections.REF Approving that would require the Court to extend existing precedent beyond its logical underpinnings.

The Current Dispute.Moore v. Harper came to the U.S. Supreme Court from the North Carolina state court system. “The legislative power” of North Carolina is “vested in the General Assembly,”REF and the state constitution deprives the governor of veto power in connection with redistricting legislation.REF North Carolina courts lack any legislative power and play no role in the state’s lawmaking process.REF

In 2021, in response to the 2020 census results, the General Assembly enacted new congressional and state legislative district maps to satisfy the U.S. Constitution’s one-person, one-vote requirement.REF Three groups of plaintiffs, comprising voters and advocacy groups, filed suit in North Carolina Superior Court alleging that the new plans were partisan gerrymanders and that partisan gerrymandering violates the North Carolina Constitution’s Free Elections, Equal Protection, Free Speech, and Free Assembly Clauses.REF In 2015, the North Carolina Supreme Court had rejected a similar claim, finding that it “is not based upon a justiciable standard.”REF

A three-judge panel convened under North Carolina law to adjudicate the 2021 cases.REF The plaintiffs moved for a preliminary injunction, and the Superior Court denied that motion, finding no factor of the preliminary-injunction test to favor the plaintiffs.REF Among other things, the court ruled that the Elections Clause deprived it of authority to adjudicate the challenge to the congressional plan.REF The plaintiffs appealed.

In North Carolina, judges and justices run for office as members of political parties. The three-judge panel included two Republicans and one Democrat. The North Carolina Supreme Court was composed of four Democrats and three Republicans. Without explanation, that court granted a preliminary injunction and remanded the case, directing the Superior Court to bring the case to a final judgment in one month.REF The Superior Court complied.REF The Superior Court held the claims non-justiciable and entered judgment in favor of the General Assembly’s officers, who represent its interests in state court.REF

On Appeal, the North Carolina Supreme Court again expedited proceedings and, by a strict party-line vote, issued the seemingly predetermined judgment that all three plans—state House and Senate and congressional—violated the state constitution.REF In a subsequently issued opinion, the court recognized that the state constitution does not specifically address gerrymandering, as some state constitutions do, but found this omission irrelevant. It reasoned that “it is no answer to say that responsibility for addressing partisan gerrymandering is in the hands of the people” because North Carolina is “a state without a citizen referendum process and where only a supermajority of the legislature can propose constitutional amendments.”REF In its view, “the only way that partisan gerrymandering can be addressed is through the courts.”REF

The court remanded the case for remedial proceedings. The General Assembly enacted new House, Senate, and congressional plans, but the Superior Court rejected the congressional plan as falling short of the standard it perceived the North Carolina Supreme Court to have set and fashioned its own plan.REF The General Assembly’s officers applied to the North Carolina Supreme Court for a stay, which was denied, and then requested the same from the U.S. Supreme Court. By a 6–3 vote, the Supreme Court denied a stay application.REF Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, dissented from that ruling, proposing that, “if the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.”REF Justice Brett Kavanaugh concurred in the stay denial on the view that “it is too late for the federal courts to order that the district lines be changed for the 2022 primary and general elections.”REF

The Court subsequently granted certiorari,REF and the case will be argued on December 7, 2022.REF The question the court has agreed to answer is “[w]hether a State’s judicial branch may nullify the regulations” enacted under the Elections Clause “and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions” that do not expressly reference gerrymandering.REF

History and Significance of State Court Review of Laws Governing Federal Elections

The question presented in Moore v. Harper arises only now because the phenomenon of state courts improvising federal election regulation is a new one. Whatever else may be said of the competing positions in this case, there is little basis for contending that the state courts adhered to a “[l]ong settled and established practice”REF of invalidating and replacing a congressional plan based on freewheeling theories of “free” and “equal” elections.

We have reviewed the parties’ briefs in Moore, the amicus briefs, and academic papers cited in support of the respondents’ position and have conducted independent research in order to identify past state court decisions that, like the North Carolina decision in Moore, rejected acts of state legislatures under the Elections Clause under conditions materially akin to those in Moore. There turns out to be very little of that precedent to find, at least between 1789 and the early 21st century. Although amici supporting the Moore respondentsREF and some academic papersREF have buried the Supreme Court in citations to state court decisions, a careful review reveals nearly all to be irrelevant. Many applied federal law; many did not involve federal elections; many involved elector qualifications (which are not governed by the Elections Clause); many addressed procedures like veto and referendum authority; and many construed state law rather than subjecting it to judicial review. Moreover, much of the authority is quite recent, which only underscores that rejection and replacement of federal elections laws by state courts is a recent phenomenon.

Perhaps most important, our research indicates that state court decisions do not form the basis of what most would consider the meaningful election-law progressions of the 20th century. The few state court decisions most helpful to the Moore respondents’ legal theory denied Civil War servicemembers the right to vote in federal elections, despite state legislatures’ best efforts to enable them to vote absentee. There is no colorable argument that overruling those decisions would harm democracy. The handful of 20th century decisions cited by the Moore respondents’ supporting amici and academics who support their theory established no doctrine of any practical import. There is no basis for the assertion that overruling these decisions would in any way harm the right to vote.

History of State Court Decisions Invalidating Elections Clause Legislation Under State Constitutions. No analogy to the North Carolina Supreme Court’s decision can be identified until recently, and there is no basis for the contention that “over two hundred years of historical practice,” properly understood, supported its approach.REF

The First 70 Years. To begin at the beginning, no one disputes that no state court review of legislation enacted pursuant to the Elections Clause occurred for the first 70 years of United States history. The Moore respondents, their amici, and academics who support their theory generally begin their historical analysis of state judicial decisions with the “Civil War era.”REF Our own research uncovered nothing they missed. None of the many authorities we have seen supposedly representing an established historical practice of state court review predates that era. That omission is significant. The most probative historical-practice evidence is what occurred in the wake of the Constitution’s ratification; later evidence “do[es] not provide as much insight into its original meaning.”REF

Here the conceded 70 years of state court silence says much.REF The Moore respondents strive to establish that:

1. “The Framers celebrated state-court judicial review,”REF
2. State constitutional provisions existed to provide the basis of that review,REF
3. State court judicial review of state laws occurred around the time of and even before the Framing,REF and
4. “[I]mportant” issues concerning elections were then “actively contested.”REF

Thus, in their telling, the heat, fuel, and spark were all there at the Founding—but no fire broke out for 70 years. That is evidence that neither state judges nor potential litigants viewed state courts as authorized to intervene in the field of federal elections.

Only the United States Solicitor General, an amicus supporting the respondents, offers an alternative explanation for this “dog that did not bark,”REF proposing that it “simply suggests that legislatures complied with state constitutional constraints” during that era.REF But the basic problem in Moore is that legislatures cannot “simply” “compl[y]” with “state constitutional constraints” by force of will under the respondents’ theory of judicial primacy. The North Carolina General Assembly in 2021 also believed that it complied with state constitutional constraints, as does more or less every legislature.

As in baseball, where the question is not whether a pitch is actually a strike but whether the umpire calls it a strike, the question in Moore is whether state courts may announce violations of state law as they construe it to override Elections Clause legislation. Because the underlying matter disputed in Moore—gerrymandering—is “not new to the American scene”REF—“[n]or is frustration with it”REF—the Solicitor General’s theory that early election legislation complied with state constitutional constraints would suggest that current election legislation equally complies with state constitutional constraints.REF What changed are the judges and perhaps the legal culture, not the law itself.

The Civil War Era. There is also general agreement among scholars and the litigants in Moore that “the earliest conflicts between state constitutions and election laws passed by state legislatures arose during the Civil War, when several states enacted soldier absentee voting laws in violation of state constitutional provisions requiring ballots be cast in person.”REF State court decisions concerning this conflict went both ways. A few state courts forbade soldiers’ votes from counting, even in federal elections, because of specific state constitutional provisions mandating in-person voting.REF Those holdings, even if taken as authoritative, fall short of the North Carolina Supreme Court’s claim to freewheeling power to declare rules that are “free”REF and “equal.”REF

However, those decisions were not authoritative, even at the time. Other states’ courts embraced the contrary view, holding that “[t]he authority of the State legislature to prescribe the time, place and manner of holding elections for representatives in Congress, is derived from…the Constitution of the United States”; that “[t]heir action on the subject is not an exercise of their general legislative authority under the Constitution of the State, but of an authority delegated by the Constitution of the United States”; and that “[t]he constitution and laws of this State are entirely foreign to the question….”REF

Prior to Bush v. Gore,REF this was the only clash in American history between state courts and a constitutional delegation of power to state legislatures of any practical national significance, and it illustrates the folly of shrill assertions that applying the Elections Clause would be “so potentially damaging for American democracy.”REF Obviously, permitting active servicemembers fighting to preserve the Union to vote by mail was not damaging for American democracy. A leading academic opponent of the theory acknowledges that the “doctrine reached its high-water mark during the Civil War” precisely because “it provided a way to evade state constitutional limitations on solder-voting in federal elections”REF—i.e., to extend voting rights.

Dismissing this history, some of the Moore respondentsREF and academics have pointed out that “several states amended their constitutions” during the Civil War to permit absentee servicemember voting, which they assert “would have been unnecessary if the prevailing view in these states had been that state constitutions could not regulate federal elections.”REF This assumes, however, that state constitutional amendments are intended principally to express abstract theories rather than to achieve desired outcomes when experience says that the reverse is true. Claiming that these amendments reflected agreement with decisions holding that state constitutions can constrain state legislatures is like claiming that those who propose to repeal state abortion bans must agree with the Supreme Court that those bans are enforceable because the federal Constitution “does not prohibit the citizens of each State from regulating or prohibiting abortion.”REF

The bottom line is that from the Founding through the Civil War, there was no evident consensus view, expressed in state court practice, that state courts are empowered to reject legislation enacted pursuant to the Elections Clause. There also is certainly no precedent for the North Carolina Supreme Court’s decision in Moore. There is, then, neither foundation in state court practice that can “liquidate & settle the meaning of” the clauseREF nor any basis for the consequentialist assertion that Moore may mark a dramatic and damaging departure from that practice.

Reconstruction Through 2000. For the subsequent 140 years, no consensus view in favor of state court supremacy would emerge: In fact, the weight of authority cut the other way. For example:

• Several state courts held that because “[t]he office of representative in congress is created by and depends solely on the constitution of the United States,” contrary state constitutional provisions are “of no effect.”REF
• The Rhode Island Supreme Court held that a constitutional majority-vote rule could not be applied to federal elections.REF
• The Kansas Supreme Court held, with respect to presidential-elector candidates, that a legislatively enacted compulsory-primary law could not be made “subject to constitutional restrictions which prevent the Legislature from limiting the right of candidates to have their names on the general ballot.”REF
• The Nebraska Supreme Court found it “unnecessary…to consider whether or not there is a conflict” between the legislature’s method of appointing presidential electors and a constitutional provision requiring that “[a]ll elections shall be free” because that provision “may not operate to ‘circumscribe the legislative power’ granted by the Constitution of the United States.”REF
• In 1944, the Kentucky Supreme Court, in a rerun of the Civil War disputes, privileged “the Act of 1944 Kentucky Legislature” permitting “‘absentee voting’ by constitutionally qualified citizens of the State absent from their voting precincts, during a state of war” over a constitutional provision requiring that ballots be “marked by each voter…at the polls.”REF

Nevertheless, it has been asserted that these cases represent “only a handful” of state courts that “embraced ISL theory,” ultimately overwhelmed by “[t]he clearest evidence” of contrary authority.REF This is incorrect. This assertion is founded on the erroneous belief that practically any state court election-related lawsuit contradicts the Moore petitioners’ view of legislative power. In fact, one group of amici presented an appendix of miscellaneous state court decisions that (in their description) “exercised judicial review over a wide variety of federal election disputes” involving everything from federal filing deadlines, to ballot-access disputes, to voting equipment.REF

But state court rulings “over” “election disputes” do not speak to the question in Moore, which calls on the Supreme Court to decide whether, in those disputes, state courts must privilege state statutes over conflicting substantive constitutional provisions. When the amalgamation of more-or-less random state court decisions is boiled down to cases involving that question, there turns out to be, at best, a handful of decisions in support of the Moore respondents’ view.

Irrelevant State Court Rulings from This Era. Several categories of state court decisions do not bear on the question in Moore and lack probative value.

The first comprises state court decisions applying federal law. As explained, any exercise of lawmaking authority under the U.S. Constitution is subject to judicial review for compliance with other provisions of that Constitution. It is equally well-settled that claims under federal law may be properly brought in state court.REF It should therefore come as no surprise that disputes raising issues of federal law have been adjudicated in state courts, sometimes resulting in the invalidation of state election statutes.

Despite the obvious irrelevance of such actions to the issue in Moore, the Moore respondents and their supporting amici and academics cite these authorities liberally.REF In particular, they have cited the frequent occurrence of a redistricting impasse where the state legislature fails to redistrict after the decennial census; a court must remedy the one-person, one-vote violation (under the U.S. Constitution’s Equal Protection Clause) with a court-fashioned plan; and the Supreme Court has established a preference that state courts rather than federal courts do that work.REF None of this implicates the issue raised in Moore because under any view of the Elections Clause, state election laws would continue to be reviewed for compliance with federal law.REF Accordingly, this line of authority is not historical evidence that runs contrary to the theory proposed in Moore.

Next are state court rulings identifying whether an election law was properly promulgated by the state’s lawmaking apparatus. The Moore respondents and their supporting amici and academics have cited state court decisions tracking the Smiley holding that “the Legislature” refers broadly to a state’s prescriptions for lawmaking.REF Because the Elections and Electors Clauses refer to a state’s own definition of this process, Smiley and Arizona State Legislature implicitly endorse state court adjudication of whether that process was properly followed—for example, whether legislation was properly presented to the governor for approval or veto. There are many decisions of this genre,REF but they do not bear on the question of whether a state court may override a law enacted in conformity with a state’s lawmaking procedures and so are incapable of establishing a settled practice on that issue.REF

Another line of cases cited in briefing and academic papers involves disputes over non-federal elections. Such cases are easy to come by, and the Moore respondents’ supporting amici and academics have cited them liberally.REF They are also plainly irrelevant to the question at hand: The Elections and Electors Clauses apply only to the regulation of federal elections, not state and local elections.

Another irrelevant body of law involves adjudication of voter qualifications. State courts have sometimes been called on to decide whether someone “had the qualifications of a voter” and have sometimes found the answer in the state’s constitution.REF But these cases do not shed light on the Elections Clause because different federal constitutional provisions govern elector qualifications. Article I, Section 2, Clause 1 provides that “the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature,”REF and the Seventeenth Amendment adopted materially identical language.REF These provisions require that “all those qualified to participate in the selection of members of the more numerous branch of the state legislature are also qualified to participate in the election of Senators and Members of the House of Representatives.”REF Because state constitutions may establish qualifications to vote in state legislative races, application of such provisions by state courts does not establish a practice pertinent to the Elections or Electors Clauses.

Next, some of the Moore respondents’ supporting amici have identified cases applying state constitutions in the context of primary elections to federal office.REF These cases were decided in the early 20th century,REF three decades before the Supreme Court held that primary elections to federal office are embraced within the Elections and Electors Clauses.REF Before United States v. Classic, four justices had suggested that “the term ‘elections’ in § 4 of Article I did not embrace a primary election since that procedure was unknown to the framers,” but that position had not achieved a majority.REF State court decisions concerning primaries did not discuss the federal Constitution, and that omission reflects only the prevailing view that it did not apply to primary elections—or at most an unawareness of the issue.

Finally, many amici supporting the Moore respondents appear to believe that any state court election-law case supports the respondents’ position under the Elections Clause. There are innumerable state court decisions applying election statutes in various disputes arising from federal elections, and the amici briefs are loaded with examples.REF This reliance is misguided. The Elections Clause requires that “the Legislature” select the “manner” of congressional elections in the state, and applying the legislative choices in that regard upholds the Elections Clause. That is as it should be—to decline to apply state statutes would violate the Elections Clause.REF It is therefore peculiar that some amici believe the Supreme Court in Moore might bar “judicial review of elections”REF and bury the Court with state court election disputes, the vast majority of which apply state statutes in conformity with the Elections Clause rather than reject those statutes in defiance of the Clause.REF

Remaining Decisions. Once the proverbial chaff is discarded, what is left of the supposed unbreaking line of state court decisions privileging state constitutions over Elections Clause legislation? Very little. Recall that even academics supportive of the Moore respondents agree that “a handful” of decisions from this era embraced the Moore petitioners’ theory.REF Any theory of a contrary consensus would require more than a handful of contrary cases.

Only a handful of decisions, at best, go the other way—with no discussion of the Elections Clause.

• One 1932 Illinois decision invalidated a congressional redistricting plan under the state’s constitution, but it cited independent federal grounds to reach the same result, so the Elections Clause (had it been considered) would not have changed the outcome.REF
• The same can be said of two Virginia cases that likewise invalidated congressional redistricting plans on independently sufficient state and federal grounds.REF
• An additional Illinois case struck down candidate qualification fees under the state’s free and equal elections clause,REF but the decision has not withstood the test of time: “fees remain a staple throughout the United States.”REF
• The California Supreme Court in 1902 held that a congressional candidate nominated by both the Democratic and Union Parties had a state constitutional right to have his name printed twice on the ballot (once for each party), despite a contrary state law.REF The case did not address the Elections Clause, and the theory has not gained acceptance: The Michigan Supreme Court, for example, called it “absurd.”REF
• The New York Court of Appeals in 1911 struck down a ballot law permitting a straight-ticket vote for some candidates but required individual marks for others.”REF The import of this odd-year ruling on federal elections was not outlined, and the theory also did not gain traction. The Montana Supreme Court, for example, was “content…with saying that such an argument––if it can be called an argument––does not appeal to us.”REF

Beyond those decisions, the Moore respondents’ supporting amici identify a smattering of cases upholding state statutes against state constitutional challenges.REF The import of these decisions as to federal elections is generally unclear; they do not address the federal Constitution, and the probative worth of decisions finding no liability is considerably diminished as compared to those finding liability. Certainly, these cases do not implicate the question posed by Moore: Liability was typically denied because state courts revered “the exclusive province of the legislature to enact laws providing for the registration of voters, and the time, place, and manner of conducting elections.”REF

Similarly, state constitutional decisions often tracked federal standards. A good example is Erfer v. Commonwealth,REF in which the Pennsylvania Supreme Court adjudicated a gerrymandering claim against Pennsylvania’s congressional districts under the state constitution. But it applied the standard the U.S. Supreme Court had recently adopted in Davis v. Bandemer,REF rejected the claim as failing that standard, and recognized that it found the claim justiciable only because this Court found such claims to be justiciable in Bandemer.REF Both the rules of decision and the result tracked federal law. Unsurprisingly, when the Pennsylvania Supreme Court invalidated a congressional plan in 2018, it had little choice but to “expressly disavow” Erfer.REF

The 21st Century. The 21st century has marked a significant turn in this avenue of constitutional history, and this fact again is widely acknowledged.REF But whereas the Moore respondents’ supporting amici and academics frame this as carrying forward an established tradition, the more accurate description is “rupture.” As shown, state court decisions striking down laws governing federal elections were few, far between, and intermixed with an equal number of contrary cases. Only now do such decisions abound with regularity.REF

Advocates for this trend acknowledge that the theories they espouse are rarely to be found in state constitutions, nor are they readily discernible through ordinary interpretive methods. A leading article advocating state court election challenges is most notable for what it omits: any suggestion that state constitutions be examined in text, context, and history to assess whether the supposed rights asserted actually exist.REF Instead, the article devotes 15 pages to “Judicial Ideology, Selection, and the Right to Vote.”REF It declares that “[l]iberal judges tend to view individual rights broadly,” “that we should select judges who espouse this value,” and therefore that these outcome-oriented goals should “inform the debate over how we select our judiciary.”REF

The point, stated differently, is that activists should put likeminded individuals on state courts and expect their goals to be achieved irrespective of what state constitutions provide to override what state legislation clearly provides. Of course, if these goals were popular, this would be unnecessary.

This approach has produced incessant litigation, generally organized and funded by national interests and conducted by forum shopping in jurisdictions with benches stocked with perceived political, even partisan allies. Lawsuits have targeted photo identification laws,REF the use of commonly used voting machines,REF poll hours,REF basic ballot-casting requirements,REF ballot-access laws,REF and laws establishing congressional district boundaries.REF The 2020 federal elections saw a staggering number of lawsuits, making it already by September 2020 likely “the most litigated election ever.”REF “There were over 400 cases in forty-four states about the 2020 election during the COVID-19 pandemic.”REF Law firms reaped incredible profits.REF Under this approach, a voting procedure can be derided, and the legal theory will follow in due course, more or less.

The 2020 elections demonstrated that courts have become aggressive in seizing on open-ended provisions of state constitutions as the bases for what in truth are policy disagreements with state legislatures. Lower federal courts issued multiple rewrites of state election codes, but the Supreme Court and the courts of appeals repeatedly stayed those decisions.REF Hence the flow of suits to selectively chosen state courts, which activists view as an end-run around Supreme Court review.

Pennsylvania provides a prominent example. The General Assembly procured a bipartisan compromise in 2019 to allow “all qualified electors to vote by mail, without requiring the electors to demonstrate their absence from the voting district on Election Day.”REF The General Assembly then liberalized that system further in response to the 2020 Covid-19 pandemic.REF But this did not satisfy the Pennsylvania Democratic Party (whose legislative members had supported the compromise), which brought suit. Nor did it satisfy the Pennsylvania Supreme Court, which rewrote the section “require[ing] mail-in and absentee ballots to be returned to Boards no later than 8:00 p.m. on Election Day” to achieve “a three-day extension.”REF The court recognized that state law was clear and that “there is nothing constitutionally infirm about a deadline of 8:00 p.m. on Election Day for the receipt of ballots.”REF Nevertheless, the court relied on the state’s free and equal elections clause to wield a legislative pen “to craft meaningful remedies when required,”REF so “Tuesday at 8:00pm” became “Friday at 8:00pm.”

Similar extensions were obtained in North Carolina, Michigan, and Minnesota.REF The Michigan order was reversed on appeal in state court,REF and the Minnesota order was enjoined by the Eighth Circuit under the Constitution’s Electors Clause.REF The North Carolina and Pennsylvania orders, however, remained in effect after split decisions from the Supreme Court denied stay applications.REF

These decisions illustrate why the question presented in Moore has arisen in the Supreme Court only now, more than 230 years after the Founding. No one then imagined that state courts would claim such sweeping power to rewrite election laws. No foundation in “a regular course of practice” suggests otherwise.REF Contemporary cases are unlike the contested Civil War–era absentee cases enforcing discrete constitutional dictates. The courts of Pennsylvania, North Carolina, and Minnesota ignored the “presumption…that…the legislature is more directly amenable to the people,”REF and there is nothing about the phrase “[e]lections shall be free and equal”REF that favors a November 6 deadline over a November 3 deadline. But given the finality that state courts claim over state law, they may, under this theory, deem themselves entitled to read specific date requirements into state constitutions and apply them to offices that govern the nation.

Comparative Significance of State Court Decisions in Guaranteeing the Right to Vote. Even acknowledging that occasional state court rulings, which fall well short of a consensus, have applied state constitutions to laws governing federal elections does not require acknowledging that these rulings carry any practical significance. Most critics of a plain-text reading of the Elections Clause do not object only in theory; they insist that the reading is “dangerous” and “anti-democratic”REF because “[s]tate constitutional guarantees could disappear.”REF

But what guarantees are even in play? As shown, the rulings supposedly presenting a consensus from the Framing until the 21st century established in a few states, if anything, that soldiers risking their lives to defend the nation may not vote by mail, that candidates nominated by more than one political party have a right to have their names listed twice, and (in Illinois) that candidate fees may not be permitted.REF If the legacy of these rulings represents the stakes of a decision for the Moore petitioners, who cares?REF

The Moore respondents and their supporting amici and academics have not identified any core voting right guarantee that they believe will fall away if the Supreme Court rejects their constitutional arguments. Nor is any apparent, because federal law has done nearly all the work in this arena. And that was by design.

The Constitution’s Framers did not look to state courts or constitutions as proper bodies to regulate federal elections but instead assigned the primary grant of power to state legislatures, “checked and balanced” with a secondary grant of power to “the Federal Congress.”REF The framers of the Reconstruction Amendments likewise did not rest their hopes for racial equality in voting (or otherwise) with state courts or state constitutions. They instead worked to amend the federal charter to guarantee these things directly, as enforceable in federal litigation, and to make Congress “chiefly responsible for implementing the rights created” in the Fourteenth and Fifteenth Amendments.REF Applying these Amendments, the Supreme Court invalidated numerous impositions on voting rights, including in state constitutions.REF And pursuant to its authority, Congress enacted numerous election laws, most notably the Voting Rights Act of 1965, which “employed extraordinary measures to address an extraordinary problem.”REF The voting-rights regime Congress fashioned views state courts with no less suspicion than it views other organs of state government.REF

Meanwhile, it was Congress that stepped in to guarantee servicemember voting through the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA),REF and Congress has repeatedly intervened in federal elections through such legislation as the Help America Vote Act of 2002, which mandated “nondiscriminatory standards that define what constitutes a vote and what will be counted as a vote”;REF the Materiality Provision of the Civil Rights Act of 1964, which prohibits states from “deny[ing] the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election;REF and the National Voter Registration Act, which requires states to facilitate voter registration as part of the driver’s license application process.REF The Supreme Court, in turn, has backstopped this federal law system of voting protections through the so-called Anderson–Burdick framework, which condemns “excessively burdensome requirements” in any election as unconstitutional.REF None of this is at risk in Moore.

In fact, the disaster scenario that some advocates have warned against—that reversal in Moore might empower state legislatures to overturn the results of a presidential electionREF—is facially nonsensical precisely because both federal law and the U.S. Constitution clearly prohibit that outcome. The Electors Clause, like the Elections Clause, empowers state legislatures with “plenary” “power to select the manner for appointing electors,REF but under both the Electors and Elections Clauses, Congress has power to establish the “time” of the election, and it has done so, identifying the first Tuesday after the first Monday in November as the day.REF Thus, if a state legislature is to exercise its prerogative to “take back the power to appoint electors,”REF it must do so in time to select the slate as of the congressionally defined election day; to change course after the votes have been cast would plainly violate federal law and intrude on congressional powers in violation of the Electors and Elections Clauses.

That safeguard—and the additional force that the Equal Protection Clause would bring to bearREF—is far simpler and preferable to relying on the idiosyncrasies of 50 unique state constitutions, as interpreted by 50 separate state court systems, to ensure orderly transitions of power at the federal level. There is no plausible claim that a decision for the Moore petitioners would facilitate an election steal—and leading academics on the other side of the general issue concede as much.REF

That is not to say, however, that the stakes here are small or that there is not a risk to democracy. While a decision for the Moore petitioners would not lead to any dire outcome—it would instead continue the norm of following election legislation that has largely prevailed from the very beginning—such a decision would cut off what has quickly become the preferred venue for parties seeking to upend and override federal election regulations for partisan ends.

Conclusion

Advocates lament that the Moore theory “would mean that the partisan gerrymandering of congressional districts by state legislatures would not be reviewable by the state courts,”REF that “voter ID laws” may be permissible in federal elections,REF and that racial discrimination in voting may somehow become possible (despite the Fourteenth and Fifteenth Amendments and the Voting Rights Act).REF These are simply variations on their criticisms of recent U.S. Supreme Court decisionsREF and typically reflect controversial positions they have not been able to achieve through democratic means.REF

The point of the Electors Clause is to identify who decides these questions and to subject them to the democratic process. It is not anti-democratic to insist that those who desire election law reforms persuade rather than litigate. That would be the only practical outcome of a ruling for the Moore petitioners, and it seems to us as beneficial from a policy standpoint as it is sound as a matter of constitutional law.

David B. Rivkin, Jr., and Andrew M. Grossman are partners at Baker & Hostetler LLP and lead the firm’s appellate and major motions practice. Richard B. Raile is a partner at Baker & Hostetler LLP, where he practices appellate and election law. Messrs. Rivkin and Grossman represented the Lawyers Democracy Fund and state legislators as amici curiae in support of the Moore petitioners. Mr. Raile assisted a legal team representing the Moore petitioners at an earlier stage of the litigation in the North Carolina state courts.