When the United States Supreme Court granted certiorari in Moore v. Harper, early warning systems went off in state supreme courts around the country, announcing the potential this case had to eliminate state constitutional review of state voting rights legislation that in any way implicated federal elections. Recognizing that almost all state elections are inextricably interconnected with federal elections and the threat therefore posed to state courts’ core functions, the chief justices of all fifty states joined in an amicus brief criticizing the Independent State Legislature Theory (ISLT) as an upheaval of our federal and state constitutional structure.
Fortunately, the decision issued by a divided court was not as obviously destructive of state constitutional review as the chief justices and others feared. The Court rejected the broader interpretation of the ISLT, endorsed by three of the justices, that would have essentially precluded state constitutional review altogether. Nonetheless, it is the thesis of this article that the decision that was issued continues to pose great dangers. The Supreme Court, drawing on the reasoning of Bush v. Gore, particularly the vague and controversial version of the ISLT first articulated by Chief Justice Rehnquist in his concurrence, held that state supreme courts’ interpretations of their state election laws are subject to review in federal court when they “transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”
This standard of review is disturbingly unclear. The decision creates substantial uncertainty, not only for future elections but also for the overall division of authority between the state and federal courts that is essential to the design of federalism. Unless it is further defined and confined, as recommended in this article, this standard of review will distort the division of authority between state and federal courts that is part of our dual constitutional structure. As the Supreme Court has fundamentally shrunk and supplanted historic state constitutional authority in a similar fashion in other contexts, and even done so by first relying on and then widely expanding seemingly modest decisions,11 the holding of Moore and its apparent resurrection of the Bush v. Gore Rehnquist concurrence standard of review over state courts remains a grave concern.
In our view, the original and best understanding of the Elections Clause provides for a very limited form of federal oversight. The provision does not authorize the Supreme Court to substitute its judgment for state courts’ on the meaning of state election statutes or state constitutions as Chief Justice Rehnquist did in Bush v. Gore. Nor does it authorize an open-ended inquiry into what it means to transgress the ordinary standards of judicial review, as there is no consensus on the Supreme Court or other courts on what that means. It also does not prevent state courts from providing greater protection of voting rights than that provided by state legislatures or the federal Constitution when the state constitution grants such rights. Nor does it impose a particular interpretive methodology on state courts in interpreting their constitutions or the federal constitutional conception of separation of powers or stare decisis. It only prevents state courts from performing the function of state legislatures, as the state legislatures are expressly responsible under the federal Constitution for prescribing the times, places, and manner of elections subject to state constitutional review. Justice Souter’s dissent in Bush v. Gore encapsulates the overreach at issue. State courts may not create new election laws untethered to the legislative acts and state constitutional requirements in question. Such fundamental rewriting of the election laws and usurpation of the legislative function is forbidden by the Elections Clause.
