Second of three parts on Moore v. Harper
The dominant mode of constitutional interpretation now applied by the Supreme Court’s conservative majority is finding meaning of the basic document in American history and tradition. That, however, does not involve an open-ended inquiry into the past: it is said to be focused on the meaning that the words of the Constitution had when they were first put into the document – either originally in 1787 or by later formal amendments. It rejects the idea of an evolving, living Constitution.
The aim of that approach, its advocates say, is to have an objective definition, so that Justices and judges do not import into the Constitution their own personal preferences. Still, it turns out, at least some of the time, to be a quite selective inquiry, so that there remains the potential for discretionary choices. It is perhaps too much to suggest that this approach (known generally as “originalism”) is vulnerable to manipulation, but at times it can look like that.
Originalism may be at work when the Supreme Court, at a hearing scheduled for December 7, begins to explore what is called the “independent state legislature” theory regarding the conduct of federal elections. That will be a test of what part of that theory’s history will be most persuasive to the Justices.
The hearing in Moore v. Harper is specifically about the election districts used in 2022 for choosing North Carolina’s 14 members of the U.S. House of Representatives, but the case has grown into an open-ended inquiry into that theory as it would apply to presidential elections, too.
The theory, in its simplest form, is that Articles I and II of the Constitution, in setting out modes of election for members of the House of Representatives and the Presidency, give basic authority to state legislatures to exercise a federal function and, therefore, they remain free from restraints by state courts or by state constitutions or a governor’s veto. This is a theory of “legislative choice,” in place of the people’s choice.
The original Constitution, of course, mandated a very specific form of “legislative choice” in electing U.S. Senators. They were chosen by the state legislatures, not the people, under Article I. That approach lasted for well over a century, until 1913, when the 17th Amendment handed that choice to the people, voting directly.
Beyond that, though, “legislative choice” did not fare well at the time of the nation’s founding; the idea was decidedly unpopular during the constitutional convention in 1787. Many of the debates among the Philadelphia delegates centered on the idea – sponsored mainly by smaller, Southern states – that Congress should choose the President. In the end, the idea was abandoned in favor of the Electoral College. Over time, the common practice developed for choosing electors by the people, voting directly, instead of leaving the choice to state legislatures.
The idea of “legislative choice” as the mode of federal election was revived from time to time in later history, but it never caught on widely. By 1826, for example, only two states retained state legislatures’ power to pick presidential electors, and after 1860, no state used that method.
When the 14th Amendment was ratified in 1868, after the Civil War, it appeared to have nullified state legislatures’ authority to limit the people’s right to vote in all federal elections, including those for Congress and the Presidency. The Amendment set a penalty of a loss of seats in the House (and thus in the Electoral College, too) if a state had denied any eligible voters their right to cast a ballot. That was a response to some of the denials of voting rights in states of the Confederacy.
By the time the post-Civil War’s Reconstruction period ended in the settlement of the contested presidential election of 1876, the concept of “legislative choice” was largely a constitutional dead letter.
That concept, however, had a sudden and still puzzling revival in 1892, in a Supreme Court decision that arose in the aftermath of the 1876 election. To this day, the 1892 decision in McPherson v. Blacker remains at the core of the argument in favor of the “independent state legislature” theory.
Actually, the McPherson case had nothing to do with the theory. It was a test of whether a state – Michigan — could choose its presidential electors from districts rather than statewide. There was no question that, in that mode of election, it would be by the people’s vote. At issue was an 1891 state law that provided for presidential elections in 12 separate districts.
Ruling unanimously as it upheld that method, the Court rejected a variety of constitutional challenges, but in the course of doing so, made a number of sweeping remarks that were not necessary to the outcome (what lawyers and judges refer to as non-binding dicta). The opinion pulled the theory of “legislative choice” out of the dustbin of history, elevating state legislatures to dominance (“plenary authority”) over presidential elections.
Chief Justice Melville Fuller, the author of the opinion, wrote: “The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the electoral franchise can alone choose the electors. It…leaves it to the legislature exclusively to define the method…”
Over 22 pages, Fuller engaged in a highly selective recital of history. But he did put a particular emphasis on an 1874 Senate report (never adopted in the Senate), which had declared that the power to choose 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…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.”
With the re-emergence of the theory in today’s Supreme Court, the Fuller opinion has been subjected to spreading criticism among academics and election-law specialists. One of the most devastating is a soon-to-be-published law review article, by three historians, seeking to expose – in 45 pages of deeply detailed historical research — what they call the “gaping gaps” in Fuller’s version of history. On that opinion’s citation of the Senate report from 1874, for example, the article recounts “a great deal of evidence [that] undermines” that report.
In the Court’s modern history, it appears that a good deal of the impetus for reviving the theory came from William H. Rehnquist, as an Associate Justice and then as Chief Justice (he died in 2005).
Rescuing the McPherson opinion from obscurity, Rehnquist brought it up in 1983, in an Ohio presidential election case on an issue of candidates’ access to the ballot. There was no issue in the case about voters’ right to choose electors. Rehnquist’s one-paragraph reference to the theory appeared to be mostly rhetorical; he did not explain why he had cited it.
He made a robust use of it, however, in 2000 in the famous judicial saga, Bush v. Gore. The Court had agreed to review how state courts in Florida had ruled on that state’s extremely close outcome in the presidential contest that year between Republican George W. Bush and Democrat Al Gore.
One of the issues that Bush’s team of conservative lawyers had raised was whether the state Supreme Court, in ordering a partial recount, had misinterpreted the Constitution’s assignment of power to state legislatures in regulating the choice of electors – the constitutional text behind the “legislative choice” theory. Their filings relied heavily upon the 1892 McPherson decision.
The Court made two decisions, each mentioning the McPherson ruling; Rehnquist clearly played a central role in both. First, the Court issued, without dissent, an unsigned opinion asking the state Supreme Court for clarification of its action; opinions in that form usually go through the Chief Justice’s chambers. Then, in a final ruling, the Court overturned the state court, barring (by a 5-4 vote) any further recount and, thus, putting Bush in the White House.
Rehnquist joined in the unsigned final opinion, and then wrote a separate concurring opinion, quoting significantly and uncritically from the McPherson opinion’s broadest assertions, including the disputed 1874 Senate report and its extreme statement of legislatures’ power. Rehnquist’s separate opinion had the support of Justice Clarence Thomas and then-Justice Antonin Scalia. Thomas is the only member of the Bush v. Gore Court still serving.
The net effect of what the Court had done in 2000 was to cite, without giving its explicit approval, the idea that state legislatures, in carrying out their election assignment under the Constitution, were performing a federal function, and that they had unchecked authority to decide on the method – do it themselves, or assign it to voters.
The fact is, however, that neither of those was necessary to the final outcome, which was based on the Court’s entirely separate conclusion that Florida’s recount system violated some voters’ constitutional right to legal equality. Moreover, the Court said explicitly that its ruling was a special one for this controversy only, and it set no precedent.
That, however, is not how Bush v. Gore is treated these days by many advocates, and – most significantly — by four of the current Justices.
The “independent state legislative” theory has had a spectacular revival, in the wake of the 2020 presidential election, and Justices Samuel A. Alito, Jr., Neil M. Gorsuch and Clarence Thomas have given that revival strong encouragement, although it is not certain that they will embrace the theory fully in the end. A fourth Justice, Brett M. Kavanaugh, also has stressed the importance of the issue, but has been more cautious in expressing his views.
The resurgence of the theory is due, in the main, to the rise of multiple constitutional challenges to the 2020 defeat of Donald Trump. Several of those have reached the Supreme Court and the “independent state legislature” theory, the 1892 McPherson decision and Rehnquist’s reasoning in Bush v. Gore in 2000 have all been at the center.
Beyond the lawsuits, some 60 in number, all but one of which failed in lower courts, former New York City mayor Rudy Giuliani and a conservative California law professor, John Eastman, played prominent roles in the former President’s unsuccessful effort to use the “independent state legislature” theory as the constitutional basis for overturning President Biden’s 2020 victory.
The state of Texas, with the support of 17 other states, pressed that very theory in a sweeping lawsuit filed directly in the Supreme Court about a month after the election. It asked the Court to block the counting of electoral votes from four key states won by Biden, as a step toward giving state legislatures new chances to act on their own to cast electoral votes for Trump. The Court swiftly turned down that maneuver, in a narrow decision that declared only that one state does not have any right to sue over how any other state runs its elections. It did not mention the theory.
Justices Alito and Thomas dissented, arguing that the Court should have heard and decided the Texas case. However, they did not indicate at that time how they would have ruled on the idea of legislative choice.
Last March, however, the two of them – joined by Justice Gorsuch – revealed an unmistakable inclination. The Court had received a preliminary legal request in the North Carolina congressional redistricting case (Moore v. Harper), filed by the state legislative leaders advancing the theory. The Court rejected that plea, without explanation.
Alito, however, wrote a separate, five-page opinion to object. Joined by Thomas and Gorsuch, the opinion said that the dispute “presents an exceptionally important and recurring question of constitutional law” and went on to say at another point that the state legislature leaders would be “likely to prevail…if review is granted.” While both sides had made “serious arguments,” Alito suggested that the legislators’ “argument is stronger.”
Justice Brett M. Kavanaugh wrote a two-page opinion for himself, but it was not as revealing. He supported the Court’s refusal to hear the preliminary legal issue, then said he agreed that the constitutional issue was important and that “both sides have advanced serious arguments.” He did not say which he thought was stronger.
It is not uncommon (but it is not routine) for Justices to express such views at preliminary stages of a case, because one of the tests of whether to grant such motions is the prospect of how the case might come out if it were to be decided finally. The Justices insist that they are not bound by what they write until after full briefing and a hearing.
Four days after those opinions came out, the North Carolina legislators filed their formal appeal. Since it takes the votes of only four of the nine Justices to grant review of a case, the four Justices’ expressions in March left no doubt that the case would move forward. The Court accepted it on June 30.
All nine Justices are expected to be on the bench on December 7, for the hearing on the case.
Next: The third and final part of this series, appearing tomorrow, will discuss the details of Moore v. Harper and how the rulings by the state courts in that case influenced the most recent congressional elections there on November 8.
