Tomorrow the Court hears oral argument in Moore v. Harper, the Elections Clause case that I have inconclusively addressed in three posts (part 1, part 2, and part 3). In today’s Wall Street Journal, law professor Steven Calabresi argues that a ruling in favor of the North Carolina legislators “would be a constitutional travesty.” But I’m not persuaded by his argument.
Calabresi asserts at the outset that the case is really “about states’ rights” and about “whether federal courts can dictate to the states how their legislatures are composed.” I find that a confusing and unhelpful way to think about a case that presents the question what a state’s “Legislature” is for purposes of the Elections Clause.
Calabresi contends that the Constitution “doesn’t authorize the Supreme Court to decide what a state legislature is or isn’t.” But one way or the other, that’s exactly what the Court will be deciding. As I read Calabresi, he is not arguing that the Court should dismiss the case as nonjusticiable. He instead wants the Court to decide that a state legislature consists of whatever entities and mechanisms a state constitution gives a role in lawmaking: the legislative houses, the governor’s veto, and popular initiative or referendum.
Perhaps Calabresi is right. But (as I discuss in point 10 in my part 2 post) the Chief Justice argued vigorously just a few years ago that the Court’s precedents establish 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.”
Calabresi also expresses alarm over what a ruling in favor of the legislators on the Elections Clause would mean for the power of the state legislature to appoint presidential electors (under the Electors Clause in Article II, section 1). He contends that “an unchecked state legislature could give the state’s electoral votes to the loser of the popular vote.” But that would be true only in the highly unlikely event that the state legislature established that rule before the election. (See point 6 in my part 1 post.) And that same result could happen under his own approach if the state constitution dictated, say, that the state’s electoral votes should go to the Republican candidate, irrespective who won the popular vote.
More broadly, congressional action to reform the 1887 Electoral Count Act is a far better means of preventing mischief by state legislatures on presidential electors.