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Commentary
Michael Weingartner is an Associate at DLA Piper. He studies election law and voting rights, focusing on state courts and state constitutions. His scholarship has appeared in the University of Pennsylvania Law Review, the Harvard Journal of Law and Public Policy, and the Georgetown Law Journal. His work on the Independent State Legislature Theory was cited widely in briefs before the Supreme Court in Moore v. Harper.
By Michael Weingartner
August 9, 2023, 10:30 AM
In Moore v. Harper,1Moore v. Harper, 143 S.Ct. 2065 (2023). the Supreme Court rejected the most extreme version of the Independent State Legislature Theory and reaffirmed that when state legislatures regulate federal elections2See U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[.]”). they remain subject to review by state courts and to the constraints imposed by state constitutions.
But Moore also warned that state courts “do not have free reign” when interpreting state law. The Court emphasized the need to “respect” the Constitution’s “deliberate choice” to vest authority over federal elections in state legislatures.3Moore, 143 S.Ct. at 2088. The majority further explained that federal courts could step in to ensure state courts stay within “the ordinary bounds of judicial review” so as to not “circumvent” the Constitution or “arrogate to themselves” lawmaking power otherwise granted to state legislatures.4Id. at 89.
What exactly are those “ordinary bounds” and how might a federal court know when a state court has transgressed them? That remains to be seen, as the Supreme Court expressly declined to adopt a test. By failing to clarify when and how federal courts may police state courts’ interpretations of state law, the Court has injected significant legal uncertainty into the election landscape, just in time for the 2024 election cycle.
While the Court did not settle on a test, both the majority and Justice Kavanaugh in a concurring opinion cited Chief Justice Rehnquist’s concurrence in Bush v. Gore.5See id. at 2089–90; Bush v. Gore, 531 U.S. 98, 111-22 (2000) (Rehnquist, C.J., concurring). There, Chief Justice Rehnquist wrote that a state court could violate the U.S. Constitution by interpreting a state election statute in a way that “impermissibly distorted” the law “beyond what a fair reading required.”6Bush v. Gore, 531 U.S. at 115 (2000) (Rehnquist, C.J., concurring). Because, in his view, “the clearly expressed intent of the legislature must prevail,”7Id. at 120 (Rehnquist, C.J., concurring). the Chief Justice favored applying a strict textualist approach, writing that the specific text of a state election statute “takes on independent significance.”8Id. at 113 (Rehnquist, C.J., concurring).
In his Moore concurrence, Justice Kavanaugh also highlighted another portion of Chief Justice Rehnquist’s approach, that federal courts reviewing state court interpretations “necessarily must examine the law of the State as it existed prior to the action of the [state] court.”9Moore, 143 S.Ct. at 2091 (citing Bush v. Gore, 531 U.S. at 114). In effect, Justice Kavanaugh is suggesting that a novel state court interpretation of a state law regulating federal elections may warrant greater scrutiny.
The Moore majority and Justice Kavanaugh seemed to assume that applying some version of these approaches—textualism and anti-novelty—to state court interpretations of state laws regulating federal elections will further the Court’s rationales for allowing federal review in the first place: promoting respect for state legislatures and constraining state courts to “ordinary” interpretation.
But that assumption would be wrong. Neither textualism nor an anti-novelty approach would necessarily ensure that state courts stick to ordinary interpretation or foster greater respect for the role of state legislatures. In fact, in many circumstances, applying strict textualist and anti-novelty approaches would undercut the intent of state legislatures and produce anomalous court interpretations that depart significantly from “ordinary” judicial review.
The Textualism Trap
Start with textualism. Both Chief Justice Rehnquist and Justice Kavanaugh presume that the best way to engender respect for state legislatures is to give effect only to the text of state election laws, eschewing non-textual sources like legislative history or purpose. Sometimes, this may be true. But not always. In fact, many state legislatures have explicitly rejected textualism by enacting laws requiring courts to use non-textual sources101 Pa. Code § 1921 (2023), available here. when interpreting state laws. Election statutes in particular often explicitly direct courts to interpret their terms liberally.11See, e.g., Colo. Stat. Rev. § 1-1-103 (2023), available here. In these states, federal courts insisting on a textualist reading of state laws regulating federal elections would completely disregard the law as written by the legislature.
Elsewhere, state supreme courts have crafted non-textualist rules for interpreting state statutes, particularly in the context of election law. Of course, state legislatures are well aware of these rules and write laws expecting that they will be applied. If a federal court applied textualism instead, the result could be an interpretation intended by nobody and with no basis in state law.
A different problem arises when a federal court reviews a state court’s interpretation of a state constitution, rather than a state statute. The majority suggested, and Justice Kavanaugh explicitly said, that Chief Justice Rehnquist’s statutory interpretation approach should apply equally to state constitutional interpretation. But there is no reason to think that a textualist reading of a state constitution will promote respect for state legislatures. To the contrary, strict textualism often leads courts to strike down statutes that might otherwise be upheld under non-textualist approaches.
For example, when state legislatures first passed laws allowing the use of voting machines at the start of the twentieth century, opponents brought challenges under state constitutional provisions that required all elections to be conducted by “ballot” or “written” vote. As several court cases demonstrated,12See, e.g., Jefferson Cnty. v. Jefferson Cnty. Fiscal Court., 273 Ky. 674 (Ky. 1938). a purely textualist reading of those provisions would have required striking down the voting machine laws. Most courts,13See, e.g., In re Voting Machine, 36 A. 716 (R.I. 1897). however, upheld the use of voting machines precisely because they agreed that state constitutions should be interpreted according to their purpose, rather than their literal text.
Moreover, textualism would fare no better at constraining state courts to the “ordinary bounds” of interpretation. Textualism can produce just as many inconsistent and purpose-driven outcomes as any other interpretive method. And for courts that normally apply a range of non-textualist methods, demanding strict textualism only for election laws would produce anomalous results and effectively require courts to engage in the exact opposite of “ordinary judicial review.”
The Constraints of Anti-Novelty
What about an anti-novelty approach? Novel statutory or constitutional interpretations by a state court can sometimes thwart the legislature’s intent, such as when the North Carolina Supreme Court held, for the first time, that the state constitution prohibited partisan gerrymanders and struck down the state legislature’s redistricting map. That said, there is no reason to think that novelty will always be to the legislature’s detriment. After all, when North Carolina Republicans gained a conservative majority on the state supreme court after the 2022 midterms, the court swiftly reversed itself to allow the legislature to draw new partisan gerrymanders.14See Harper v. Hall, 384 N.C. 292 (N.C. 2023).
There are other reasons to be wary of sudden novel interpretations of state law. Truly radical changes to election laws, especially close to an election day, may raise legitimate due process concerns by frustrating voters’ reasonable expectations. And, in rare cases, a sudden about-face by a state court might signal an attempt to circumvent the federal constitution. For example, in NAACP v. Alabama ex rel. Patterson15See generally NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).—cited by the Moore majority—the Alabama Supreme Court applied its procedural rules in irregular ways to prevent the NAACP from suing to vindicate their First Amendment rights, necessitating federal intervention.
Extreme cases aside, however, there is nothing inherently nefarious about novel interpretations of state law. In fact, they are exceedingly normal. When a court is presented with new arguments or a new set of facts, it will often refine, narrow, or even overturn a prior interpretation.
State courts also reach novel decisions for political reasons. Unlike federal judges, many state judges are elected, meaning voters can choose judges who will rule on issues in new ways. This is what happened in North Carolina, where the state’s newly elected supreme court reversed itself on partisan gerrymandering. Such a novel reversal may also occur in Wisconsin, where partisan gerrymandering, once held to be nonjusticiable,16See generally Johnson v. Wisconsin Elections Comm’n, 967 N.W.2d 469 (2021). was a key issue in last year’s election to decide control over the state supreme court.
None of this is new. For example, in 1863, the New Hampshire Supreme Court struck down an absentee voting law as unconstitutional,17See In re Opinion of the Justices, 44 N.H. 633 (N.H. 1863). only to reverse course the following year.18See In re Opinion of the Justices, 45 N.H. 595 (N.H. 1864). Simply put, in the vast majority of cases, novel interpretations of state law fall well within the “ordinary bounds of judicial review.”
So where does this leave us? If the Court is serious about wanting state courts to stick to “ordinary judicial review,” its focus should be on understanding and maintaining the type of interpretation that state courts ordinarily do, and have done for centuries, rather than introduce new and potentially disruptive principles like textualism or an anti-novelty bias that lack any basis in state law or practice and whose implementation could create election upheaval in 2024 and beyond.
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