What's Wrong with the Argument that State Legislatures Have Exclusive Authority For Everything Election-Related
by Michael C. Dorf
If all goes well tomorrow, neither the Supreme Court nor any other court will have occasion to resolve post-election disputes because Joe Biden and down-ballot Democrats in tight races will win by a sufficiently decisive margin to render any such legal challenge futile. Yet if the last four years have taught us anything, it's that only a fool counts on all going well. Some combination of polling error and voter suppression could produce post-election litigation after all. Or, as Prof. Buchanan has repeatedly warned (including on Friday of last week), Republican state legislators in states Trump loses could nonetheless disenfranchise their states' voters by purporting to assign their Presidential electors directly.
If post-election litigation ensues, its outcome could turn on a principle most clearly articulated thus far by Justice Gorsuch, joined by Justice Kavanaugh, in last week's Wisconsin case. I quoted the language in my "SCOTUS Kremlinology" post last week, but it warrants quoting again:
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.
The part of that quote outside the em-dash is right. The Constitution does give state legislatures primary responsibility for setting rules for federal elections. Article I, Sec. 4 provides: "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators." And Article II, Sec. 1 provides: "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress . . . ." So far so good.
However, the part of Justice Gorsuch's statement inside the em-dash is highly misleading. It's true that federal judges, state judges, state governors, and other state officials do not "bear primary responsibility for setting election rules" (emphasis added). Yet Justice Gorsuch and the other Republican appointees who have endorsed this approach have been voting in election cases as though it follows that federal judges, state judges, state governors, and other state officials bear no responsibility for implementing, interpreting, and/or limiting federal election rules. And that broader view is mistaken for reasons expressed by Profs Tribe and Mazie in the Boston Globe yesterday and in two Verdict columns last week--one by Prof. Buchanan and another by Dean Amar.
I commend those essays to readers. In the balance of this post, I'm going to lay out a class of examples that further illustrates why the legislature-alone theory is wrong.
In his column, Dean Amar quotes a 2001 article he co-authored with Prof Brownstein in the wake of Bush v. Gore, the case in which the legislature-alone theory first surfaced in a concurrence. Amar & Brownstein persuasively showed that when the Constitution's Article II assigns to "[t]he Legislature in each State [authority to] direct the manner of appointing members of the electoral college," it must mean the state legislature as defined and circumscribed by the state's constitution. They gave the following example:
[I]f a state constitution defined the legislature as a quorum of 60 percent of the elected legislative representatives, would we say that 51 percent of the elected representatives could pass a law regarding the selection of presidential electors and have that choice count by virtue of Article II? The answer is no, because 51 percent of the representatives is not the legislature, as defined by the state’s fundamental law. If that is true for a quorum requirement, it is at least not obvious why it is not true for a state legislature that ceases to act as a bona fide legislature by ignoring state constitutional requirements that every vote be counted.
That's a good example and, as I said, the broader logic of the Tribe & Mazie, Amar, Amar & Brownstein, and Buchanan essays is unassailable. To show why they're bullet-proof, I'd like to add another set of examples.
Recall that, according to Justices Gorsuch and Kavanaugh in the Wisconsin case, "state governors" are among the actors who supposedly lack authority to prescribe election rules. At a bare minimum, that cannot possibly mean that a state gets to make laws governing federal elections without gubernatorial participation if a state constitution gives the governor power to sign a bill into law or to veto it. Now suppose that an election bill is passed by a majority of the state legislature but the governor vetoes it and the legislature lacks the supermajority necessary to override the veto. If this were a bill addressing virtually any subject on which states legislate, that would be the end of the matter. But under the most robust version of the legislature-alone theory, the bill actually became law in the state for federal elections before it even went to the governor.
Let's make that concrete. Earlier this year, the Kentucky legislature passed a bill requiring voters to show photo ID. The governor vetoed it and then the legislature overrode his veto. Suppose, however, that the override vote had failed. Under the legislature-alone theory, even though election officials in Kentucky would think photo IDs still were not required, they actually would be--but only for the federal portion of the election. The vetoed photo ID bill would not be the law for state and local elections; yet all of the ballots cast in the federal portion of the election would be invalid because voters failed to show ID--even though no one asked them to do so.
That example is one of countless variations. Enterprising election lawyers could search through state legislative records going back decades to find bills that were vetoed but, under the legislature-alone theory, have actually been the law governing federal elections ever since--even though no one thought so.
We can draw two conclusions from the foregoing discussion, one narrow and one broad. The narrow conclusion is that the argument I set forth with Grace Brosofsky and Prof. Tribe is undoubtedly right. We argued based on text, history, and precedent that if a state has on its books a law designating popular election as the means of choosing its Presidential electors, the state legislature can only change that mechanism to direct legislative appointment (or some other means) by its ordinary legislative process, including presentment to and an opportunity for veto by the governor. I continue to think that our argument was more than sufficient on its own terms. The hypothetical example based on Kentucky's voter-ID law shows that, in addition, the contrary view logically entails chaos.
The broader conclusion is that the entire legislature-alone theory is badly mistaken for the reasons laid out by Tribe & Mazie, Amar, Amar & Brownstein, and Buchanan. It is child's play to come up with further examples showing how every legitimate organ of state and local government must be able to play a role in the implementation of a legislative scheme for running elections.
It is not too late for various Justices to walk back the legislature-alone theory. Should the issue return to the Supreme Court in the current election or a future one, Justice Gorsuch could simply say that when he wrote that "state legislatures . . . bear primary responsibility for setting election rules," he really did mean primary responsibility, not exclusive responsibility. Moreover, he could say that a state legislature of course exists within the bounds set by the state constitution.
Would such a position require repudiating the Bush v. Gore concurrence? Well, for one thing, it's only a concurrence and was thus never the law. And for another thing, as Tribe & Mazie argue, there's a great deal that's wrong with the Bush v. Gore concurrence. But for a third thing, even if we take the Bush v. Gore concurrence as authoritative, it does not vindicate the legislature-alone theory.
The best understanding of the Bush v. Gore concurrence is not that it rules out any role in election rules for state actors other than state legislators defined in isolation from their state constitutions. The best understanding does not even rule out a substantial role for state courts in construing the meaning of state statutes governing federal elections. Rather, the best understanding of the Bush v. Gore concurrence reads it as of a piece with a limited line of cases in which federal courts review state court determinations of the meaning of state law with less-than-complete deference of the sort that state courts receive in the ordinary course. However, less-than-complete deference is still deference. While the Bush v. Gore concurrence characterized the appropriate standard of Supreme Court review of state court decision making as "independent," it added that such federal review was "still deferential."
To be sure, many observers, including me, continue to think that the Bush v. Gore concurrence misapplied that standard in the particular case. For example, Prof. Monaghan thought that the concurrence would have been more persuasive if the three Justices who signed it said that they were applying de novo review of the Florida Supreme Court's decision. In his words, "such an opinion would have avoided the needless humiliation of the Florida Supreme Court" accomplished by the actual Bush v. Gore concurrence, which claimed that that court acted unreasonably in its reading of state election law.
Yet the question whether the Bush v. Gore concurrence misapplied the "still deferential" standard of review has no ongoing importance. It implicates only issues of how best to characterize Florida law circa 2000. Whatever one thinks about those issues, neither the Bush v. Gore concurrence nor any precedent of the Supreme Court requires anything like the legislature-alone theory.
I renew my wish that the Court does not have further occasion to resolve election-related legal questions. If such an occasion does arise, I hope that a majority of the Justices will repudiate the legislature-alone theory as incoherent and a misreading of what they have said to date. But I am not brimming with confidence that they will do so. When the stakes are high, off-the-wall views can find their way onto the wall.