I see that a redoubtable trio of law professors—Akhil Amar, Vikram Amar, and Neal Katyal—has published a New York Times op-ed contending that the position that Justice Kavanaugh has expressed (point 1 here) on a state legislature’s authority over voting in presidential elections is “preposterous.” I’d respectfully suggest that the law professors overlook some important points and badly overstate others.
First, though, I should highlight that Kavanaugh is not the only justice to have recently opined that the federal Constitution bars state judges or other state actors from rewriting the state legislature’s rules governing federal elections. In his concurring opinion in that same Wisconsin case, Justice Gorsuch wrote: “The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules. Art. I, §4, cl. 1.” And just yesterday evening (after the NYT op-ed had already appeared), justices in two cases made the same argument. With respect to an order concerning Pennsylvania, Justice Alito, joined by Justices Thomas and Gorsuch, stated:
The Supreme Court of Pennsylvania has issued a decree that squarely alters an important statutory provision enacted by the Pennsylvania Legislature pursuant to its authority under the Constitution of the United States to make rules governing the conduct of elections for federal office. See Art. I, §4, cl. 1; Art. II, §1, cl. 2; Bush v. Palm Beach County Canvassing Bd., 531 U. S. 70, 76 (2000) (per curiam)….
The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election. See Art. I, §4, cl. 1; Art. II, §1, cl. 2.
And in a case from North Carolina, Justice Gorsuch, joined by Justice Alito, made this statement in the course of dissenting from the Court’s denial of injunctive relief:
The parties before us all acknowledge that, under the Federal Constitution, only the state “Legislature” and “Congress” may prescribe “[t]he Times, Places and Manner of holding Elections.” Art. I, §4, cl. 1. Everyone agrees, too, that the North Carolina Constitution expressly vests all legislative power in the General Assembly, not the Board or anyone else. N. C. Const., Art. II, §1; cf. N. C. Const., Art. I, §6. So we need not go rifling through state law to understand the Board’s permissible role in (re)writing election laws. All we need to know about its authority to override state election laws is plain from the Federal and State Constitutions.
Let’s now turn to the three professors’ op-ed:
1. The authors assert that “[f]ederal courts have no business interfering in state-law matters.” But setting election rules for federal elections is not a mere state-law matter. As the unanimous Supreme Court stated in Bush v. Palm Beach County Canvassing Bd. (2000) with respect to setting the rules for presidential elections, the state legislature in doing so “is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under Art. II, § 1, cl. 2, of the United States Constitution.” (Emphasis added.) That constitutional provision, the Court indicated (in quoting an 1892 precedent), “operat[es] as a limitation upon the State in respect of any attempt to circumscribe the legislative power.”
2. Curiously, the authors make no mention of the unanimous opinion in Bush v. Palm Beach County, but instead try to discredit Chief Justice Rehnquist’s concurring opinion in Bush v. Gore (2000), which relied directly on Bush v. Palm Beach County.
They claim that “this part of Bush v. Gore has already been squarely rejected by a landmark 2015 case, Arizona [State] Legislature v. Arizona Independent Redistricting Commission.” But Justice Ginsburg’s majority opinion for five justices in that case didn’t even mention Bush v. Gore (or Bush v. Palm Beach County), much less “squarely reject” it. Further, that case’s status as a “landmark” is far from clear. In his vociferous dissent for four justices, Chief Justice Roberts stated that the majority’s position that “the Legislature” in Article I, section 4, means “the people” “has no basis in the text, structure, or history of the Constitution, and … contradicts precedents from both Congress and this Court.” Rather:
The constitutional text, structure, history, and precedent establish a straightforward rule: Under the Elections Clause, “the Legislature” is a representative body that, when it prescribes election regulations, may be required to do so within the ordinary lawmaking process, but may not be cut out of that process.
In his own dissent (on grounds of lack of jurisdiction), Justice Scalia added:
[T]he majority’s resolution of the merits question (“legislature” means “the people”) is so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures, that I cannot avoid adding my vote to the devastating dissent of the Chief Justice.
3. The authors contend that Chief Justice Roberts and the other dissenters in the Arizona State Legislature “squarely relied” on the “key holding” of that case in their ruling last year in Rucho v. Common Cause. But the Chief Justice cites Arizona State Legislature as authority only once, for the proposition that excessively partisan gerrymandering is “incompatible with democratic principles.” (He also twice refers to the district court’s citation of the case.) That proposition has nothing to do with the “key holding” of Arizona State Legislature.
In short, there is no reason to think that the Chief Justice believes that Arizona State Legislature was correctly decided or that its holding should be extended.