Litigation Update: State Legislatures, State Courts, and Federal Elections

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Ryan Lacey:  Hello and welcome to this Federalist Society webinar. This afternoon, Tuesday, July 26, we discuss Litigation Update: State Legislatures, State Courts, and Federal Elections. My name is Ryan Lacey, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinions are those of our expert on today’s program.

 

Today, we are fortunate to have an excellent speaker in Andrew Grossman, whom I will introduce very briefly, though much more could be said. Andrew is a partner at Baker and Hostetler—if you’ll correct me there, Andrew, that’d be great—LLP and Adjunct Scholar at the Cato Institute. After Andrew gives his remarks, we’ll turn to you, the audience, for questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we will handle questions as we can toward the end of today’s program. With that, thank you for being with us today. Andrew, the floor is yours.

 

Andrew Grossman:  Thank you so much, Ryan. And thank you to everyone attending today. I’ll begin of course with a very interesting disclaimer that I’m speaking today on my own behalf, not on behalf of my firm or my firm’s clients. With that said, our topic today is the case Moore v. Harper, which the Supreme Court has recently agreed to hear, and then more broadly the unique role of state legislatures in setting the rules for federal elections. The basic question that we’re going to address is who sets the rules. Is it state legislatures? Or is it some combination of election officials and state courts? The Constitution says that the manner of choosing representatives, senators, as well as presidential electors is to be determined and prescribed by the legislatures of each state. And ultimately, the question for the Supreme Court in Moore v. Harper is going to be what does that mean, and what are the consequences of that text? That question has come to the fore in recent years.

 

In recent electoral cycles, we’ve seen a surge in litigation at the state level that seeks to influence the manner of conducting federal elections, typically for partisan gain of course. In general, groups allied with the Democratic Party had great success in 2020, challenging many election rules through unilateral actions by state election officials as well as through litigation in state courts. In turn, the Trump campaign seized on some of those changes as support for its claim following the election that the election had been stolen. Now, the election was not stolen, but all of the abrupt changes to election laws, particularly those in partisan direction, did lead many Republican voters to doubt the fairness and integrity of the election process. Some, for example former President Trump, even say that our federal elections are rigged.

 

Now, we’ve also heard some overblown rhetoric on the other side, especially more recently. Since the Supreme Court agreed to hear Moore v. Harper, left-leaning commentators as well as Democratic Party officials have really been nothing short of apoplectic about the threat that they say the case poses. Just to give you an example ripped from the recent headlines, a Washington Post headline recently declared that the case “imperils American democracy.” Vox called it the biggest threat to U.S. democracy since January 6. Slate said that it would “decimate voting rights in every state.” And not to be outdone, MSNBC in a recent article used the headline “How the Supreme Court could make it legal to steal the next presidential election.”

 

Now, I think that this sort of rhetoric and so much of the commentary on the case as well as the broader doctrine underlying it does give more heat than light. And the purpose of this Teleforum is to present a sober discussion of the Moore case, the law, the independent state legislature doctrine, and the arguments on both sides. And I want to be clear. There is a real debate on the merits, and the case does have serious consequences. But the fear mongering and the scary headlines really don’t have a basis in the law and have basically nothing to do with the case. What we’re going to discuss today -- I guess our discussion will proceed in three sections.

 

First, we’ll get an overview of what’s become known as the independent state legislature doctrine as well as its history. In other words, what are we talking about here? What’s the legal issue? It’s a bit complicated, and so it's worth getting into. Second, we’ll talk about Moore v. Harper and the facts of the case and how it arose and made its way to the Supreme Court. Then third, we’ll address some of the arguments on each side, trying to cut through the mist and the fear mongering and trying to get to the substance of the debate so that we can understand what’s really at stake here.

 

So let’s begin with what’s become known as the independent state legislature doctrine. You’ve heard me use that term several times now. You might well be wondering what it means. And I don’t think there is a single answer to that question because there are different versions of it, and different cases have expressed it in different ways. But let me give a general view on it. It arises from two provisions of the Constitution. The Election Clause of Article I states that the manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. Similarly, the Electors Clause, which governs the choosing of presidential electors, states that each state shall appoint presidential electors in such manner as the legislature thereof may direct.

 

So if you take this text at face value, each of those clauses distinguishes between a state, which is the relative geographic unit that is either conducting the election or is making a choice as a whole, versus the legislature, which is determining the manner of making that sort of choice. At least, that’s the textual argument. And in that way, some believe that the Constitution vests the power to set the manner or choosing representative senators and presidential electors in the legislature of each state. That’s literally a gloss on the text. Therefore, because the federal Constitution gives legislatures in particular that power, state constitutions cannot take it away from them by restricting accessorize. And that, in turn, means that state courts and election officials must follow the legislature’s election regulations unless they conflict with the U.S. Constitution or in some cases with federal law.

 

Now, that’s putting things at a pretty high level. Let’s just work through a very simple example. Imagine that a state constitution provides that ballots must be cast in person within the state. Pretty much every state used to have a constitutional provision like that. But imagine that the legislature then proceeds to enact a statute allowing soldiers serving outside of the state to cast absentee ballots in federal elections. Under the independent state legislature doctrine, that statute controls over the constitutional provision because the state constitution cannot restrict the legislature from setting the manner of voting in federal elections.

 

Now, as some of you may know, that’s not a made-up example. That, in fact, is what the New Hampshire Supreme Court decided in 1864. The same issue arose in a number of other states during the Civil War when many soldiers were serving outside of their states and wished to participate in elections during that time. Many of those cases were decided similarly on the same grounds. And indeed, the independent state legislature doctrine, in about the way that I put it, was applied regularly in the nineteenth century. Professor Michael Morley in a 2020 article in the Georgia Law Review canvassed a series of state court decisions and decisions by Congress on election contests regarding members. And those courts as well as the House and in some cases the Senate were aware of the basis of this doctrine. They were aware of the textual distinction between states and legislatures, and they understood the implication regarding substantive restrictions on a legislature’s ability to determine the manner of conducting federal elections.

 

The doctrine has also popped up in a series of Supreme Court decisions. The Supreme Court endorsed it in an 1892 decision, McPherson v. Blacker. At issue in that case was a Michigan law that required presidential electors to be elected by district rather than by the state as a whole. In other words, the winner of the state’s vote as a whole might not get all the electors but only ones from the district that that candidate had won. The decision emphasized what it called state legislatures plenary power under the Electors Clause. And it explained that this power—and I quote—“cannot be taken from them or modified by their state constitutions.” Now, we’ll return to McPherson, but it was an emphatic statement of the doctrine.

 

Let’s skip ahead now to a 1932 case, Smiley v. Holm. That involved a dispute over the validity of a congressional district map that was adopted by the legislature but towed by the governor. The Court recognized that redistricting is a part of the manner of conducting congressional elections. So in other words, it is subject to the Election Clause. And it also held its torque or holding was because that legislatures are established by state constitutions, they are subject to the ordinary lawmaking procedures that are set forth in constitutions when regulating under the Electors Clause. In other words, a legislature isn’t acting as a legislature—it’s not prescribing the manner of conducting an election—when it is proceeding under procedures that are different than those that are specified in the Constitution. Therefore, it was permissible for the governor to veto the map that it did in the past by the state legislature.

 

Well, we’re going to skip ahead now a fair ways to the 2000 election. Everybody knows Bush v. Gore, but there was a precursor case to that titled Bush v. Palm Beach County Canvassing Board. Prior to the case reaching the Supreme Court, the Supreme Court of Florida ordered recounts in certain counties of Florida but in a way that extended past several statutory deadlines. The Supreme Court agreed to hear the case to resolve whether the decision “changed the manner in which the state’s electors are to be selected in violation of the legislature’s power to designate the manner for selection under the Electors Clause.” Ultimately, the Court said that it would decline to defer to a state court’s interpretation of state law, which is what courts do in pretty much every other -- what federal courts do in every other case. And the reason that it would not defer was that the legislature was acting pursuant to a direct grant of authority by the U.S. Constitution in the Electors Clause.

 

In other words, the state legislature in prescribing the manner of conducting the presidential election was not merely enacting a regular state law. It was acting pursuant to the U.S. Constitution and the grant of lawmaking authority contained in the Electors Clause, and therefore there was a federal question implicated. The Court went on to quote McPherson v. Blacker’s language that a state constitution may not circumscribe the legislative power under the Electors Clause. But ultimately, the Court held that it was unclear to what extent the Florida Supreme Court’s decision relied on the state constitution as opposed to merely an interpretation of state election laws. And so, for that reason, the Court vacated the Florida Supreme Court’s decision and remanded for further proceedings.

 

I think it’s notable that the Court’s decision in Bush v. Palm Beach County Canvassing Board was unanimous. Then, of course, came Bush v. Gore, which was not unanimous. That case challenged manual recounts ordered by the Florida Supreme Court. The majority decision famously decided the case on equal protection grounds, reasoning that the state’s recount procedure treated voters unevenly. But it also ruled that there was not time to implement a new recount procedure because the state law that had been enacted by the legislature required the process of certifying electors to be complete the very same day that the decision was handed down. And so, there was simply no time that that law was going to be followed.

 

What’s interesting—and it is somewhat under reasoned in the majority decision in Bush v. Gore—is the basis for that determination, because of course the Florida Supreme Court believed that the recounts could continue past the certification deadline that was provided by state law. And I think the explanation for why the Court reached that conclusion regarding the remedy was best addressed by Chief Justice Rehnquist in a concurrence, which was joined by Justices Scalia and Thomas. He took the independent state legislature doctrine head on, and he argued that—and I quote—a significant departure from the legislative scheme for appointing presidential electors violates the Electors Clause, and the state supreme court had departed from the legislative scheme by rewriting deadlines, redefining what counted as illegal vote, and allowing the count to extend past the certification deadline. In his view, those were the proper grounds in addition to those stated by the majority for reaching the result that the court did. But what’s interesting is that Chief Justice Rehnquist’s concurrence provides the only rationale for the Court’s remedial determination. In other words, that rather than send the case back to the Florida Supreme Court to try again and to see if it could come up with a better recount procedure, the Court could amend the proceedings and require that the vote count be finalized.

 

Well, we’re going to skip ahead a number of years again, and we’re going to reach the present time and the case of Moore v. Harper. The case arises from a redistricting process in the state of North Carolina following the 2020 census. After the census, North Carolina gained a congressional seat. The state legislature proceeded as it typically does to enact a new congressional district map. That, as it so often does, led to litigation with broad coalition of groups mostly allied with the Democratic Party challenging the map on any number of different grounds all under state law in the state court. The case proceeded in trial court, and the trial court ultimately ruled for the legislature.

 

But its decision was split in a certain way. It ruled against the legislature on the facts. Among the claims that were brought by the plaintiffs in this case was that the new district map was a partisan gerrymander. There was, as there so typically is, a battle of the experts between the parties as to whether or not -- whether it was or whether it was not. Ultimately, the court ruled on the facts against the legislature and for the challengers, holding that the map was a gerrymander and that it did disadvantage Democratic voters. But at the same time, the court held as a matter of law that partisan gerrymandering claims presented non-dutiable political questions because there was simply no clear neutral and workable standards to decide them. Now, that wasn’t a novel decision for the trial court to make given that the North Carolina Supreme Court had reached the same conclusion merely six years previously and that the U.S. Supreme Court had reached a similar decision under federal law just two years prior.

 

But in February of this year, the North Carolina Supreme Court reversed the trial court’s decision and struck down the map. Differing from its 2015 decision, it held that the state constitution does bar partisan gerrymandering. I’ll walk through its reasoning and thumbnail passion to get an understanding of the case. It relied on four provisions in the state constitution. One provides that all elections shall be free. Another provides that people have the right to assemble together to consult for their common good. A third provides for and protects the freedom of speech. And a fourth states that no person shall be denied the equal protection of the laws.

 

Pulling together those different constitutional provisions, the court identified what it called a “principle of political equality.” And drawing on that principle, it ruled that a map “must not diminish or dilute on the basis of partisan affiliation any individual’s vote.” And that, in turn, required that any district map give political parties substantially equal opportunity to translate votes into seats. And on that basis, it struck down the map and it ordered the parties to propose new ones before the trial court. And the legislature did proceed to enact a new map. It also argued that, notwithstanding what the constitution of the state of North Carolina provides, that the legislature had a direct grant authority under the Election Clause to enact its own map, in other words that the state constitution could not limit its ability to determine the manner in which congressional elections would be conducted.

 

The trial court rejected that argument, and it ultimately rejected the legislature’s map as well. It appointed a special master, which then drew a map. And the map was, at the end of the day, not all that different from the ones proposed by challengers in the case. The legislature proceeded to seek a stay from the state supreme court, which was denied, as well as from the United States Supreme Court. At all levels, it pressed the independent state legislature doctrine, arguing that it had the sole authority to create a map and that that authority couldn’t be taken away from it by state courts applying the state constitution.

 

Ultimately, the Supreme Court denied its request for a stay. But Justice Alito joined by Justices Thomas and Gorsuch both dissented. They believed that the case presented an important question and that, as a matter of text and history, the state legislature was probably correct and therefore ought to get a stay. Justice Kavanaugh wrote a concurrence. In other words, he voted against the relief that was sought by the state, but he did express some sympathy for the state’s argument and recognized that the Court should take a case raising this important and recurring issue. But ultimately from his point of view, it was simply too close to the primary election for the Court to afford relief. In other words, at some point, the election must go on, and the Court could hear the case in the ordinary course of its merits calendar and resolve it without the undue haste of an emergency stay application.

 

Taking that as an invitation, the legislature filed a petition for certiorari. And again, the question that it presented was the fundamental one of the independent state legislature doctrine and a state court’s ability to override the legislature’s handiwork by applying provisions of a state constitution. The Court granted that petition and so agreed to hear the case on June 30 of this year. The case is currently in briefing, and it will likely be argued in November or December of this year and then decided presumably by the end of the term.

 

Now, I would like to go through a series of the arguments that we’ve heard, both sides, regarding the merits of the case, some of the threats that it presents, and some of the opportunities that it does as well. As I said at the outset, I think there is a real legitimate debate here on the meaning of the Constitution as well as how that’s played out over the years in case law as well as in practice. But I’m going to begin by clearing what I regard as some underbrush, several unconvincing arguments that I think have really caused a lot of distraction in discussion of this issue and have detracted from necessary discussion and debate on the actual issues that the case raises.

 

So the first argument is one of the ones that I led with at the top of the hour, and that’s the claim that a decision for the legislature in this case would allow elections to be stolen, for example the next presidential election. I will note that this argument is not really been made by parties to the case because I think it’s a difficult argument for an attorney to argue with a straight face. If you’re talking about the presidential election that’s governed by the Electors Clause, there’s a separate clause that you also have to take into account known as the Electoral Votes Clause. And that clause provides that Congress may determine the time of choosing the electors.

 

In other words, the presidential Election Day is not something that is left to the states, and indeed, Congress has determined that day, setting it in Section 1 of Title 3 of the United States code. As a result, the manner of choosing the electors, which is the only power in this area that state legislatures have, is a manner that must be exercised prior to the Election Day set pursuant to the Electoral Votes Clause. And there’s simply no authority for a state legislature after Election Day to override the voters and to pull back the decision on electors from the electorate. And that’s a position that so far as I am aware has been embraced by pretty much all academic literature on this question. And there are other reasons as well, other constitutional provisions, that may bear on that conclusion and that may lead to and support the results, including the Due Process Clause. But I think this timing issue presented by the Electoral Votes Clause is sufficient in and of itself to prevent a state legislature from simply overriding the electorate. The electors have to be chosen on a particular day. That day is Election Day, and after Election Day, the state legislature has no power to override the electorate.

 

As I noted, the idea that it does have that power finds about zero support in the academic literature. In fact, the only analysis I was able to find claiming that a state legislature does have that power was a memorandum that was prepared in December of 2020 by acting Assistant Attorney General Jeffrey Clark. That letter, which has obtained some notoriety, did not actually go out the door from the Department of Justice. But I’ll also note that it’s not much of an analysis. Mr. Clark’s letter simply asserts that a state legislature has the power to appoint electors after Election Day. And it completely ignores the Electoral Votes Clause as well as the long history of application of those clauses in the conduct of presidential elections since the very beginning of the -- since going back at this point hundreds of years.

 

So I think it’s fair to say that there is an understandable concern based on, for example, Mr. Clark’s memorandum as well as claims that were made by the Trump campaign that an interpretation of the Electors Clause—which of course is not the provision that’s at issue in Moore—but an interpretation of the Electors Clause could lead to untoward results, and so one can certainly understand the concern. But on the other hand, I think the concern is readily allayed. Even people who were involved in President Trump’s campaign after the election as well as in his litigation efforts recognized and have since said that they believe that there were approximately zero votes for this view of the law on the Supreme Court. I think that’s about right. It’s atextual. It finds no support in case law. And it’s based on a deliberate misrepresentation of the power that’s conferred by the Electors Clause.

 

But I think more importantly for our purposes, it simply has nothing to do with the issue that’s presented in Moore v. Harper. The question in Moore v. Harper is whether a state court may apply a state constitution to override the state legislature. That’s simply a different question, and it doesn’t implicate the power that’s being claimed by Mr. Clark and that I think so many people who oppose the independent state legislature doctrine have expressed in some of their fear mongering articles. I would however call out one law professor, Leah Litman, who although an opponent of the independent state legislature doctrine, I think has been very forthright that this argument doesn’t hold water. And I wish that’s something that we would see more of in this debate. Because at the end of the day, it simply isn’t a serious argument that doesn’t have support in the law, in the text, in history, or even in academic literature.

 

Moving on, a second claim that we’ve heard is that a decision for the legislature in this case would allow legislatures to do anything at all. It would simply be a free for all, and they would be subject to no checks and balances. Relatedly, I’ve heard the claim that a decision for the legislature would pose a serious threat to voting rights. I think it’s very important to note that Moore v. Harper is actually not a case about judicial review, but it’s really about what body of law applies when there is judicial oversight in administration of elections. State courts would still play a role in fact finding, in interpreting the law, and applying the law to the facts. Those are the things that state courts do in practically every election. The only limitation would be that state constitutions would not apply to override the enactment of the state legislatures in determining the manner of conducting federal elections.

 

But what would apply is the full body of federal law. That includes the Fifteenth Amendment, the Nineteenth Amendment, the Twenty-sixth Amendment, and the Equal Protection Clause, which bar together all manner of discrimination based on race, based on sex, based on age, and other types of invidious discrimination. Likewise, voter qualifications—in other words who at the end of the day is eligible to vote—do remain subject to state constitutions under the Voter Qualifications Clause as well as under the Seventeenth Amendment. And then, of course, there’s federal statutory law, including the Voting Rights Act.

 

I think it’s important to put all of this in context. It’s an unfortunate part of the history of our nation that, if you look back more than a few decades, there were a number of states that were seeking to deny the franchise to portions of the electorate. And the thing that carried the day in those years was federal law, the federal Constitution, and the enforcement of those federal laws, including the Voting Rights Act and including the amendments that I mentioned. Those were sufficient to carry the day then. And indeed, most of the state constitutional provisions that are at issue in the cases that have been brought in recent electoral cycles involve provisions of state constitutional law that effectively mirror the provisions of the U.S. Constitution. So if we’re talking about voting rights, if we’re talking about equal protection, if we’re talking about one person, one vote, none of those things really has anything to do with Moore v. Harper. And a decision from the legislature in this case simply would not undermine those rights and those protections of law.

 

A third claim that I’ve heard is that the independent state legislature doctrine has no historical basis. Well, I mean I think we’ve already addressed that to a point. Begin with the text of the clauses, at least from one view of the text, it’s literally what they say. They vest the power to determine the manner of choosing these federal offices in the legislatures of the states. And that was a deliberate choice by the framers, and it was characteristic of their use of the word legislature as opposed to state throughout the Constitution. There are a number of provisions that distinguish between the two, particularly when involving powers such as appointments or powers such as la making.

 

It would have been the easiest thing in the world for the framers of the Constitution, in fact the clauses at issue would have been simpler had they simply read, “The states shall determine,” or, “The states shall prescribe.” But, of course, that’s not what the framers chose to do. And the best rationale for why they probably decided to put things that way was that they recognized that conducting elections and choosing officials is inherently a political exercise, and so they chose to vest the power to determine how that would work in the most representative bodies of the states, in other words the state legislatures.

 

So far as history is concerned, the doctrine has been recognized since just about the beginning. It was forcefully expressed by Justice Story and by Daniel Webster at the Massachusetts Constitutional Convention in 1820 when they argued against a proposed provision of the state constitution that would have conflicted with the state legislature’s power under the Electors Clause. Likewise, as I mentioned previously, there’s a long history of recognition and application of the independent state legislature doctrine particularly in state court decisions over the years, particularly in the nineteenth century. Again, I would direct you to Professor Michael Morley’s very detailed article on that, and it does lay out the history. And, of course, there’s been a history of recognizing the doctrine in Supreme Court jurisprudence, and we’ll address that in greater detail in a moment. But I think it’s sufficient to say that there is a long history of recognition and application of the doctrine.

 

And then, just as a practical matter, it generally has been followed. The explosion that we’ve seen state court litigation seeking to upset the rules of federal elections, it’s a relatively recent development. If you go back a few years, state court legislation trying to change the rules of federal elections—it’s not the point that it never happened—but it was substantially rarer than it was to this day, and it involved much narrower, oftentimes highly technical issues. What’s changed, I think, is the amount of money and the amount of resources that the political parties have poured into litigation across the board at the federal and state levels to achieve their preferred electoral rules, particularly for all important federal elections.

 

That’s something that we didn’t see nearly as much of in the past, and it is a relatively recent development. And so, it’s no surprise that that sort of issue would come to the fore nowadays when there are so many instances where state courts have applied state constitutional provisions to override legislative enactments for governing federal elections. And so, I think the issue has simply gained a greater salience than it had in the past. In other words, it’s not pulling a rabbit out of a hat. It’s simply seizing on a well-known and long understood doctrine that turns out to be applicable to a current problem that has arisen in recent years.

 

Now going to get to what I think are good questions that are at the heart of the issue that I do not really consider to be underbrush. One thing that I found very interesting that both sides of this debate, both for and against the doctrine, have made claims that the Supreme Court has already answered the question and, of course, in their favor. I think it’s fair to say they can’t both be right. And I think the best view is they’re probably both wrong. But they do have arguments, and I don’t think that the arguments on either side are frivolous. There are decisions of the Supreme Court that cast doubt on the doctrine, and there are also decisions by the Supreme Court that seem to support it.

 

If you’re talking about the decisions that would seem to cast doubt on the doctrine, one that is often cited is the case I mentioned earlier, Smiley v. Holm. That was the one involving a governor’s veto of a redistricting map. But if you read the decision, what it really has to do it is the lawmaking process by which the legislature acts as a legislature. In other words, the two clauses at issue here, the Electors Clause and the Election Clause, ask the legislature to use their lawmaking power. And their lawmaking power, of course, is defined by the procedural provisions of a state constitution that establish a legislature.

 

To put it differently, if the people who comprise the legislature showed up at a local bar or a bowling alley and decided by a majority vote or just by sticking their hands up in the air they were going to do something, it wouldn’t be state law. It would simply be something that a group of people had decided to do. What makes it law, what makes it lawmaking are the procedures that establish the legislature and that give it its lawmaking power. I think the same is true of a more recent case that’s been cited, the Arizona State Legislature case. That case upheld the use of an independent redistricting commission that was established under state law through a state referendum process. The majority decision in that case held that the term legislature as used in the Election Clause includes any “lawmaking process” that is established by a state constitution and that that can include a referendum process.

 

The third decision I would cite on the anti-side, the side of those who disagree with the doctrine, is Rucho v. Common Cause. That was a 2019 decision in which the Court held that federal courts may not hear partisan gerrymandering claims because there is no clear workable and politically neutral standard by which to judge them, and they therefore present a political question as opposed to one that’s suitable for judicial determination. The Court did recognize that provisions in state statutes and state constitutions could potentially provide standards and guidance for state courts to apply in partisan gerrymandering cases.

 

But I think that what the Court said there has to be taken in context. First of all, it wasn’t ruling on that issue, and so what it said was classic dicta. And second, it was attempting in that discussion to distinguish the fact that there were standards that had been adopted by state courts and they may well have some sway with respect to state legislative elections. In other words, just because states could do this in some instance and just because some states had found what they believe to be clear workable and neutral standards didn’t mean necessarily that the same thing would apply under the terms of the federal Constitution which lacks that type of clarity. At the end of the day, I think there is a common view that what the court said there in Rucho was dicta.

 

But now moving to the other, in other words the proponents of the independent state legislature doctrine, I would actually say the same thing in all likelihood of the Court’s discussion in McPherson v. Blacker. That’s where you will recall the Court said that, under the Electors Clause, a state constitution could not circumscribe the power of the state legislature to determine the manner of choosing presidential elections. The problem is the case involved no conflict between a legislative enactment and a state constitutional provision. Although the Court may not have considered what it was saying at that time to be dicta and that there is an argument that the discussion there did play into its view of state legislature’s plenary power under the Electors Clause, I think probably the best view of McPherson is that the Court was expressing its view of the law, albeit on an ancillary issue, and that it probably was best understood as dicta.

 

But it’s harder to explain the two Bush cases. As we discussed, the Court in Bush v. Palm Beach County Canvassing Board unanimously vacated a state court decision on the basis that the state court simply might have contravened the independent state legislature doctrine by relying on state constitutional provisions as opposed to simply applying the text of election regulations that had been enacted by the state legislature. It’s typical to understand the legal basis for the Court taking that unusual step of vacating a state court decision if, at the end of the day, it wasn’t trying to avoid a constitutional violation. And so, Bush v. Palm Beach County Canvassing Board is about the high-water mark in terms of the Court applying the independent state legislature doctrine.

 

Likewise, the remedy in Bush v. Gore—in other words cutting short the recount procedure rather than remanding the matter to the state court to allow the recount to continue under standards that satisfy equal protection—it’s hard to explain that other than as simply carrying out what the legislature had prescribed in its dually enacted election regulations. And indeed, that’s what the Court said it was doing. But it also didn’t say that it was doing that pursuant to the independent state legislature doctrine or even go so far as quoting that famous language from McPherson v. Blacker that a decision to the contrary would simply be unavailable.

 

But it is strange that the Court did not expressly reach that issue and simply decided it because the state supreme court had already determined that the various deadlines at issue could be waived and indeed had to be waived under its understanding of state law. And so, for that reason, the Court effectively overruled the Florida Supreme Court in making that determination, which would seem to be as a matter of holding a very strong endorsement, if not precisely a holding applying, the independent state legislature doctrine.

 

But I want to confess neither of the Bush decisions really presented clear reasoning on this point. Justice Rehnquist’s concurrence did, but of course it was a concurrence. And so, for that reason, it’s difficult, I think, to say with any degree of certainty that either of them necessarily adopted the independent state legislature doctrine as a holding, one that could be applied in future cases. And indeed, as I read it, that seems to be the position of four justices on the Court. Justices Alito, Thomas, Gorsuch, and Kavanaugh have all recognized in various ways that the issue does remain an open one and is one that, in their view, the Court ought to decide. I think that if you have justices who are generally originalist and textualist in their outlook, if they’re of the opinion that the issue has not be squarely presented and squarely decided by the Court, I think as a practical matter that’s probably the correct answer here. And so, while both sides argue that they have the existing case law on their side, there really isn’t a case that squarely decides it in a way that you can simply quote the holding and say, “That is the law.”

 

Next point we’ll get to is I think one that has some merit to it, but it’s difficult to say how much. Some opponents of the state legislature in the Moore case have argued that a decision for the legislature will complicate election administration. The idea is that you could wind up with different rules for federal elections versus state ones. For example, a court could extend the deadline by applying a state constitutional provision. And while that would apply for state elections that are on the ballot, under the doctrine it presumably would not apply to federal elections, and so that potentially could cause some confusion.

 

Now, I think we have to recognize that there are, that there have been, and that there certainly potentially can be differences between the ways that states administer federal elections versus state elections. Typically states do strive as much as possible to maintain uniformity across different types of elections. For example, they tend to conduct them on the same day. But there’s no reason to believe -- and I don’t think there’s any great reason to believe that states would do otherwise here. Even when state courts are applying state constitutional provisions in a way that would apply to state elections but would not apply to federal elections under the doctrine, state legislatures still could come in and ensure that there is uniformity. It also may dissuade parties as well as state courts from undertaking adventuresome and aggressive views of state constitutional provisions in altering election law. But in any instance, I think the right answer here is that the ball is in the state’s court.

 

If states would like to maintain uniformity and if this uniformity is a problem in election administration, it's something that is generally is going to be in the power of the state legislatures to correct any areas where there might be a disjunction. And I will note, sometimes there are divergences between different elections. Sometimes there are different election dates, for example when states hold by-elections. And sometimes there are even different voter qualifications for local elections. In other words, some people may be eligible to vote in some races but not in other races. That, of course, happens all the time, and it hasn’t really caused much of a problem in election administration. I think there is an issue here, and it’s one that states may have to confront in some instances. But it doesn’t strike me as one that’s different in kind from what state legislatures and state election administrators are doing all the time.

 

The final point I’ll get to is the claim that this case is about the future of our democracy. Now here, I actually agree. It really does present the fundamental question of who decides on the rules for federal elections. Is it going to be the people selected representatives in state legislatures, or is it going to be courts and election officials? And there are two sides to this.

 

One side argues that the litigation blitz that we witnessed in recent years has undermined public confidence and trust in elections. The 2020 elections in particular saw major shifts in voting rules being made by officials acting on their own and by courts that tended to implement one party’s long-term objectives in the area of election administration. So of course it’s no surprise that some members in the public thought that the process was unfair. Following the rules set by elected representatives well in advance of Election Day I think would cut down illegal gamesmanship, and it may well promote stability and confidence. At the end, I think it’s difficult to say that that’s antidemocratic and that it would be antidemocratic by simply empowering the people’s elected representatives to set the rules subject to the overall standards of fairness provided by the federal constitution and federal law.

 

But there is a debate on this issue. On the other hand, people who -- many people do believe that there is a necessary role for state courts in enforcing the restrictions and the protections of state constitutional provisions even with respect to federal elections. They think that state election officials need the necessary flexibility to make sure that everybody can fairly vote and that judges are better positioned than state legislatures to ensure fundamental fairness in elections by changing election procedures and by designing redistricting maps.

 

And at the end of the day, I think those two things are really what this case is all about. It’s not about overriding voters, and it’s not about undermining voter maps. It’s about the two things that I think the opponents of the independent state legislature doctrine have really honed in on and that is simply the raft of changes to election procedures that we’ve seen in recent elections often through litigation as well as challenges to partisan gerrymandering through litigation. Particularly those latter class of claims are now unavailable in federal court, and so state courts present the only venue where they can be pursued. And I will note that in the current election cycle, both sides have notched up some wins and some losses under partisan gerrymandering theories.

 

But at the same time, when you’re talking about federal elections, there does seem to be a greater interest among the Democratic Party coalition in pursuing partisan gerrymandering cases. And really, as I said, I think that’s what this comes down to is the viability of bringing those cases with respect to house elections and house electoral districts as well as the routine types of challenges to election procedures that we’ve seen so much of in recent years. Those things are important, and there is disagreement among people, legitimate disagreement, about the importance of those types of lawsuits and about who ultimately should be deciding these types of issues and what body of law should be applied when these types of issues are raised.

 

And different people have different views on those things, but I think we should understand that those two things are really what’s at stake in this case and not the more bombastic and fear-mongering type claims that we’ve heard from so many people discussing this issue. It’s not about stealing elections. I don’t think either side has a fair argument that it is. So we should take the case as it comes, and we should take the doctrine as it comes, and we should think about this on the merits. And with that, I will conclude. And of course, I’m happy to entertain any questions that the audience may have.

 

Ryan Lacey:  Well, thank you so much, Andrew, for that very all-encompassing presentation of the case and the history behind it. You answered a lot of my questions that I had written down originally, and I don’t want to have you rehash them. One, a very basic one, how do you see this case playing out? What do you think the Court is going to say? And do you think it’ll be a broad decision or a very narrow one? Can you speak of how you anticipate this is going to end up?

 

Andrew Grossman:  Sure. Writing separate opinions, four justices currently on the Court have expressed some sympathy for the doctrine and, I think, are likely votes in favor of the state legislature in this case. That would be Justice Thomas, Alito, Kavanaugh, and Gorsuch. Meanwhile, on the other side, there doesn’t seem to really be much interest in this. Justice Jackson, of course, is a blank slate, and I do not know what her views on this area of the law would be. But Justice Kagan particularly in her Arizona State Legislature case really did seem down on this view of the law. And of course, that decision was joined by Justice Sotomayor. So they’re likely votes on the other side.

 

That leaves in the middle the Chief Justice as well as Justice Barrett. The Chief Justice has kept his cards close to the vest in this case, and I think that’s something that has been typical of him in these types of issues. And if the Chief or Justice Barrett or perhaps Justice Kavanaugh winds up being the swing vote here, which numerically it's likely that one or all of them could be, it’s possible the Court will have a very narrow decision. If the Court rules for the petitioners, that is the state legislature in this case, the Court could simply rule that what the lower courts did here was too far. I don’t think the Court would necessarily need to address an overall view deciding the independent state legislature question.

 

Instead, they could put it kind of the way that Chief Justice Rehnquist put it in his Bush v. Gore concurrence that a marked deviation, in other words going too far, applying the rules in a way that seems unlikely or unexpected under state law, is simply beyond the power of state courts in adjudicating these kinds of cases that implicate the power of the legislature under the Election Clause. So you could potentially get a narrow decision.

 

That said, there are reasons for the Court to go broader, namely that there has been a flood of cases raising this issue. And I think it’s eminently foreseeable that, if the Court does proceed narrowly, it will get a number of cases that follow on raising the questions that it left unanswered. And so, if the Court were to hold it in a straightforward fashion that legislatures do have power here that can’t be constrained by state constitutions, it would go a long way to quelling uncertainty in the law and providing good guidelines for the states as to how they ought to conduct their elections going forward.

 

Ryan Lacey:  Understood. Understood. And I’ll turn now to some audience questions and then remind everybody in the last ten minutes for our program that, if you have a question for Andrew, you can put it in the Q&A section at the bottom of your screen. And I’ll read him your question. First one’s from Steve Twist (sp), and he asks, “What does the future hold for independent redistricting commissions?”

 

Andrew Grossman:  That is a good question. Obviously, the state upheld Arizona’s that was adopted by referendum. But ones that are adopted legislatively, to the extent that that’s as a matter of political economy something that could happen, obviously aren’t subject to the same objection as ones that are adopted through referendum or in other means that circumvent the legislature. In general, if you’re talking about referenda, the Arizona State Legislature case is going to be on point for that. There was, of course, a very strong dissent in that case that was joined by four justices, and that was penned by Chief Justice Roberts.

 

If the Court were to side with the state legislature in this case, I think it wouldn’t upset necessarily the Arizona State Legislature precedent because I just don’t think there’s any reason in this case that the Court needs to do that. I don’t think it’s an issue that’s really presented here, and I don’t think it’s one the Court’s likely to read. But at the same time, a decision endorsing the doctrine and applying it might well undercut the theoretical pinings of the Arizona State Legislature case or at least point in that direction. And so, I guess it would be an open question as to whether somebody, perhaps a state legislature, wanted to mount the challenge to the handiwork of an independent redistricting commission in some future case.

 

Ryan Lacey:  And kind of combining a couple questions from our audience, how do you think that state courts -- state courts have right now a lot of power seemingly when it comes to redistricting. How do you think they might push back against that? If the independent state legislature doctrine gives all the power to the state legislatures, do you anticipate any pushback from the state courts?

 

Andrew Grossman:  Well, I think in that instance, I think it would be very difficult for state courts to push back for two reasons. First, the substantive claims that you would see in those instances -- and again, remember we’re talking about federal elections here, not state legislative redistricting. But with respect to federal elections, I think you would be seeing more unified cases that merely present claims under federal law. I think you might see more of those cases proceeding in federal court, and so there would simply be fewer cases regarding redistricting in state courts. To the extent that cases do proceed in state courts under whatever theories they might move forward upon, at the end of the day, there is going to be a check in the form of direct review by the United States Supreme Court through certiorari. So I don’t think that state courts are going to go out of their way to adopt unusual theories under federal law because at the end of the day they would face a check on being able to do that.

 

And to the extent that they would try to do such things under state constitutions or involving state procedural rules and so forth, I think that would just be a very difficult thing to do. And I certainly wouldn’t assume that state courts are going to operate in bad faith or anything of the sort merely that some of them now—and I would take the North Carolina Supreme Court as an example—have a different way of interpreting state constitutions than the one that really prevails now for interpreting and applying federal law and the federal constitution and the federal courts. And so, that’s where you see the conflict. But if you take the state constitutions out of the picture, then you don’t really have that type of conflict, I think.

 

Ryan Lacey:  Understood. Understood. One of our audience members asks, “Please apply the exonym analysis you have provided today to the 2020 election. Are there any misgivings about the manner in which the doctrine was applied in any of the 2020 swing states?”

 

Andrew Grossman:  Well, many courts, I think, were hesitant to weigh in on this issue largely because of the general confusion and disarray that was caused by the pandemic. You did see a lot of changes to state laws that were made in some cases through election officials acting on their own, in some cases through consent decrees, and in many cases through litigation. A number of those, particularly ones that proceeded in the federal courts, were rejected under the so-called Purcell principle that just generally puts a brick on the scale against making changes to election rules late in the process.

 

At the same time, when election officials did make changes and they were subsequently challenged in court as violating the independent state legislature doctrine, a number of cases declined to reach them for the reason that the litigation was brought too late in the game or that it was simply too close to the election. I think the real problem that we had here and what caused so much confusion as well as so much of a lack of trust in public confidence in elections was that the law in this area simply wasn’t as clear as it could have been. If everybody knew at the beginning of things what the proper role of state legislatures is, and if everybody had a shared understanding of that, I think there would have been much less room for dispute.

 

And so, that’s the way I would really apply it to the 2020 election is we saw so much litigation, we saw so much confusion, we saw so much distrust, and I think that really whichever way the Court goes, a lot of that could really be ameliorated just by having a clear understanding of what law controls. That said, I think that embracing and applying the doctrine would go even further in terms of fostering public confidence by removing uncertainties and by making the law clearer. But I think a decision either way would have that effect somewhat and really would help.

 

Ryan Lacey:  Turning back to state courts, one of our audience members raises an interesting issue that in North Carolina, the Supreme Court of North Carolina is actually elected. You mentioned that it’s important for the independent state legislature doctrine that the legislatures are closest to the people. Therefore, they should have the most say in choosing how the districting is. But in a place like North Carolina where the courts are also elected, or at least the Supreme Court is, how do you think that affects this issue, and do you think that’ll play a part in the case?

 

Andrew Grossman:  Sure. Some states do use elections for judicial office. Even in states that use elections, they are frequently preceded by appointments that can last a number of years. And then sometimes, justices aren’t exactly elected but subject to retention elections, which are somewhat different. But you have to keep in mind that when the framers were writing the Constitution, they were writing a constitution -- they were writing provisions that would apply to all the states. And you’re not always talking about judicial elections. And as I mentioned, you’re not always talking about elections that work in the same way.

 

And so, I think the U.S. Supreme Court, when it’s understanding the rationale, when it’s thinking about the rationale of these constitutional provisions, it has to look across the field of states, just as the framers did, rather than saying, “Well, in one state, they elect the Supreme Court justices there every so often.” At the end of the day, it’s the state legislatures in every state that are the representative bodies for lawmaking purposes. And as I said, states do different things in terms of judges. But you can say as to all legislatures, they’re elected, and they’re the people’s representatives.

 

Ryan Lacey:  Understood. Understood. Last question in the last few minutes, who do you think on which side of this issue -- you mentioned that people are mischaracterizing this case. And of course, we had in 2020 people claiming that the election was stolen and everything. Which side do you think exaggerates this issue more? And why do you think this case has come under so much scrutiny in claiming that the world is going to end if the Supreme Court takes it up and decides the way that they will?

 

Andrew Grossman:  Well, I think the rhetoric that we’ve heard on both sides has really been regrettable. I think a number of people associated with the Trump campaign, as well as frankly the former president himself, have made claims about the 2020 election that were indefensible. I think there were violations of law in the 2020 election, particularly if your view is that the state legislatures do have privacy in this area. That said, nobody’s been able to pinpoint areas where those violations of law made a difference in the electoral outcome. And so, I think for that reason in particular that the election -- the rhetoric that we’ve seen coming from some associate of the Republican Party and some Republican Party voters has been overblown and has not been helpful. I think that they’ve identified an important issue, and I can certainly understand why people are concerned about the rules of the game being fair and not being manipulated through official action and litigation, but I don’t think that justifies the sorts of rhetoric that we’ve heard coming from that side.

 

On the other side, I think that a lot of the rhetoric that we’ve heard about this case and about the independent state legislature doctrine is simply indefensible. And I think the difference there is that many of the people making these arguments are people who ought to know better and, I think, in some cases do know better. They know that this case does not present a roadmap for stealing elections or anything like that. But they also know that this case potentially would complicate the ability to bring partisan litigation to advance certain electoral outcomes.

 

And at the end of the day, that’s really what it’s about, and you can understand why people who would like to take advantage of such litigation would fall as they do, would adopt the side that they do with respect to the issue presented here. Of course they’re against the independent state legislature doctrine, and of course they’re against the state legislature in this case. But at the same time, I don’t think that justifies claiming that the sky is going to fall, and people are going to be disenfranchised and all of these dire consequences. Because when you get into the specifics—and you don’t even have to get very far into the specifics—it’s very easy to see that simply none of that is true.

 

Ryan Lacey:  Understand. Well, we’ve come up to the top of the hour, Andrew, but I would like to thank you so much for your valuable time and expertise today. And I would like to thank our audience for joining us and participating. And to answer one final question from the audience, which I assume is for me, yes, this webinar will be available on our website and on our YouTube in the coming days. It takes a little while to post afterwards, but it will be available to view afterwards. Anyway, thank you all for coming and joining. Without further ado, we are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.