Continuing from my Part 1 post to try to work my way through the issues in this case:
7. Now that the North Carolina legislative officers, the petitioners in the case, have filed their reply brief, the briefing in Moore v. Harper is complete. Having noted (in point 4) that ISL has many versions, I’ll summarize here the version advanced by petitioners:
a. The word “Legislature” in the Elections Clause (and in other provisions of the federal Constitution that refer to the “Legislature” of a state) means the representative body that, pursuant to the state constitution, makes the laws in a state.
b. The Elections Clause assigns to the state legislature the authority to prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives.” When a state legislature exercises that power, it is exercising federal authority.
c. A state constitution may prescribe the procedure, or method, by which a state legislature makes a legislative enactment. So provisions of the constitution that, say, require a bicameral vote or subject legislation to a governor’s veto, may apply to legislation under the Elections Clause.
d. But the state constitution may not impose substantive limits on what a state legislature may enact pursuant to its Elections Clause authority.
e. A state court may well have the authority to review a law enacted by a legislature pursuant to its Election Clause authority. But if and when it does so, the question it is reviewing is whether that law complies with the federal Constitution and federal statutes, not whether it complies with the state constitution.
8. The respondents’ position, by contrast, is that the word “Legislature” means a body that is not just created by the state constitution but also always constrained by it, including in its exercise of authority under the Elections Clause. Therefore, state courts may invalidate a law enacted pursuant to the Elections Clause on the ground that it violates the state constitution.
9. Petitioners and respondents disagree, vigorously and at length, about how historical practice informs the meaning of the Elections Clause. I have not waded my way through the competing discussions and will not try to summarize them here.
10. There are two Supreme Court precedents under the Elections Clause that bear on this matter: Smiley v. Holm (1932) and Arizona State Legislature v. Arizona Independent Redistricting Comm’n (2015).
The question in Smiley was whether a state constitutional provision that gave the governor a veto power over legislation could apply to a redistricting plan that a legislature enacted pursuant to its Elections Clause authority. The Court ruled that the governor’s veto power could apply. In so doing, it distinguished Hawke and Leser (see my point 5), which struck down state constitutional limits on a legislature’s authority to ratify proposed constitutional amendments. The Court explained that the “function to be performed” by the legislature under the Elections Clause was legislative, and it concluded that the exercise of the legislature’s authority “must be in accordance with the method which the state has prescribed for legislative enactments.” (Emphasis added.)
In Arizona State Legislature, the Court ruled by a vote of 5 to 4 that the Elections Clause allowed Arizona voters to adopt an initiative that removed redistricting authority from the state legislature and vested it in an unelected body called the Independent Redistricting Commission. Justice Ginsburg, in her majority opinion, and Chief Justice Roberts, in his vehement dissent, disagree among other things about how the Court’s precedents bear on the question. I offer here a summary with commentary.
Ginsburg invokes three cases: Ohio ex rel. Davis v. Hildebrant (1916), Hawke, and Smiley.
The question in Hildebrant was whether a state constitutional amendment that reserved to the people the right to disapprove a legislature’s federal redistricting law violated the Elections Clause. The Court ruled that the case did not present a justiciable controversy. So it’s strange to see Ginsburg contend that Hildebrant “established” that the term “Legislature” in the Elections Clause “encompassed a veto power lodged in the people.” As the Chief points out, Hildebrant “certainly did not hold” that (emphasis added), even if that was the practical effect of its nonjusticiability ruling. In any event, what was at issue in Hildebrant was “a State’s decision to employ a referendum in addition to redistricting by the Legislature” (emphasis in original), so Hildebrant “in no way suggested that the state legislature could be displaced from the redistricting process.”
Ginsburg is correct that the Court in Hawke, in holding that a state’s constitution could not enable a referendum to override the legislature’s ratification of a constitutional amendment, distinguished the legislature’s ratification role from its authority to legislate under the Elections Clause. But, as the Chief points out, she fails even to acknowledge that the Court in Hawke said that what the term “Legislature” meant when the Constitution was adopted, and what “it still means,” is “the representative body which made the laws of the people.”
As the Chief puts it, Ginsburg’s account of Smiley “is true, so far as it goes.” But Smiley embraces Hawke’s definition of the “Legislature,” and “[t]here is a critical difference between allowing a State to supplement the legislature’s role in the legislative process and permitting the State to supplant the legislature altogether.”
I thus strongly incline to the Chief’s view that the Court’s ruling in Arizona State Legislature is inconsistent with the Court’s precedents that Ginsburg invokes.
But for purposes of this case, there is no need to revisit Arizona State Legislature. Smiley draws the very distinction between process—“the method which the state has prescribed for legislative enactments”— and substance that petitioners draw, and Ginsburg’s majority opinion in Arizona State Legislature both quotes that passage with approval and characterizes the Arizona initiative as an “alternative legislative process.”
11. Petitioners and respondents dispute how two of the Court’s cases addressing the meaning of “Legislature” for purposes of the Electors Clause—McPherson v. Blacker (1892) and Bush v. Palm Beach County Canvassing Board (2000)—bear on the Elections Clause.
In McPherson, the Court ruled that the Electors Clause allowed a state legislature to direct that a state’s presidential electors be appointed by vote in each congressional district rather than on a statewide basis. In the course of so ruling, the Court observed that the phrase “in such manner as the Legislature thereof may direct” in the Electors Clause “operat[es] as a limitation upon the state in respect of any attempt to circumscribe the legislative power.” The Court also favorably quoted a Senate report that stated that the power under the Electors Clause to appoint presidential electors
is conferred upon the legislatures of the states by the constitution of the United States, and cannot be taken from them or modified by their state constitutions any more than can their power to elect senators of the United States. Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated.
Respondents raise three points about McPherson, but only one of the three points strikes me as substantial.
First, respondents assert that the Court “explained explicitly that ‘legislative power,’ even when invoked under the federal constitution, is ‘limited by the constitution of the state.’” (State respondents’ brief.) But the passage they quote describes the ordinary power of a state legislature, not its power under the Electors Clause, and McPherson specifically states that the “insertion” of the phrase “in such manner as the Legislature thereof may direct” in the Electors Clause “operat[es] as a limitation upon the state in respect of any attempt to circumscribe the legislative power.”
Second, respondents correctly observe that the Court was not addressing a claim that the state legislative enactment violated the state constitution. (Non-state respondents’ brief.) In that regard, the Court’s observation that the state may not “circumscribe the legislative power” of the legislature under the Electors Clause might be discounted as dicta unnecessary to (even if an actual part of the reasoning of) the ruling in the case.
Third, respondents argue that the Court did not object to the state supreme court’s “considering state constitutional claims” against the legislation. (Non-state respondents’ brief.) But the state supreme court rejected those claims, and the Court merely recognized that it was (in its words) “not authorized to revise the conclusions of the state court on these matters of local law.” Its opinion cannot be plausibly read to mean that a ruling by the state supreme court that the legislative enactment under the Electors Clause was invalid because it violated the state constitution would likewise have been a conclusion on a mere matter of “local law.” On the contrary, such a ruling would have teed up the federal constitutional question whether a state constitution may “circumscribe the legislative power” of the legislature under the Electors Clause.
In the Palm Beach County case (a precursor to Bush v. Gore), the per curiam Court, without any registered dissent, asked the Florida supreme court to clarify whether its decision requiring manual recounts of ballots was based on a reading of “the Florida Constitution as circumscribing the legislature’s authority under [the Electors Clause].” Quoting McPherson with approval, the Court emphasized that when a legislature acts under the Electors Clause, it is “not acting solely under the authority given it by the people of the State.” It expressed concern that the Florida supreme court might have “construed the Florida Election Code without regard to the extent to which the Florida Constitution could, consistent with [the Electors Clause], ‘circumscribe the legislative power.’” (Quoting McPherson.)
There is lots of room for debate over such matters as whether the statements in McPherson are correct, what Palm Beach County does or doesn’t mean, and whether Palm Beach County is sound. But McPherson on its face supports petitioners’ position that state constitutions cannot impose substantive limits on how a state legislature exercises the authorities conferred on it by the federal Constitution.
12. Petitioners argue—correctly, I believe—that under respondents’ position a state constitution could entirely exclude the state legislature from having any role in prescribing the rules governing federal elections. The state constitution could provide, for example, its own set of rules for federal elections, and it could state that any addition or revision to those rules could be made only by popular referendum. With respect to redistricting specifically, the state constitution could confer redistricting authority directly on the governor, or on the state supreme court, or on some other body.
Respondents’ position that a state legislature is always constrained by its state constitution would apply as well to the legislature’s role under the Electors Clause and in the Article V amendment-ratification process. That would mean that the people by referendum could, say, adopt a constitutional provision that entirely excludes the state legislature from the appointment of presidential electors and that instead confers on the governor or the state supreme court justice plenary authority to appoint the state’s electors. It would also mean that the southern states before the Civil War could have embedded in their constitutions a provision barring the legislature from ever voting to ratify an amendment that ended slavery or prohibited discrimination on the basis of race.
I will emphasize that I do not present these consequences as some sort of proof that respondents’ position is wrong. Petitioners’ own position is also vulnerable to illustrations of how it could be exploited in unseemly ways. But these consequences do, I think, suggest that the intuition that state legislatures are of course subject to state constitutional limitations when they exercise federal constitutional roles might not be right.