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12/13/2022

David Rivkin et al. on the Independent State Legislature Theory
Michael Ramsey

From the Heritage Foundation, David Rivkin Jr., Andrew Grossman & Richard Raile: History and Consequences: Setting the Record Straight on the Elections Clause and Moore v. Harper.  From the introduction:

In Moore v. Harper the Supreme Court of the United States will consider “[w]hether a State’s judicial branch may nullify the regulations” the state’s legislature enacts to govern federal elections “and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions.” The answer will turn on the meaning of the Constitution’s Elections Clause, which, along with its counterpart Electors Clause, directs “the Legislature” of each state to prescribe the “Manner” of federal elections in that state. The Moore petitioners argue that because these clauses delegate federal lawmaking power directly to state legislatures—not states generally—state courts may not apply state constitutions to override and replace them.

Criticism of this theory has tracked an unfortunate trend of hyperbole employed in recent discussion of election regulation, which is liberally offered but rarely finds support in facts, experience, or common sense. ...

...

On the merits, these apocalyptic claims are no more compelling than all the others proven false by experience. This Legal Memorandum is principally concerned not with the legal arguments for and against the Moore petitioners’ position but with the assertion that their proposed holding would be dangerous to democracy. Central to that claim is the assertion that the Supreme Court would be rejecting “over two hundred years of historical practice” in the state courts, which are presumed to have established and preserved the right to vote as we currently understand it. The Moore respondents have been supported by many amici, and many scholars have written on this subject, but despite their considerable efforts, they have failed to show that a ruling for the Moore petitioners would pose any threat to democracy or voting rights.

Their historical analysis is equally wanting. No one has identified any state court decision invalidating a law enacted under the Elections Clause or Electors Clause for at least 70 years after the constitutional Framing. The first time courts took this step was during the Civil War, and they did so to deny active servicemembers defending the Union the right to vote. Other courts, adopting the Moore petitioners’ theory, affirmed legislative efforts to extend them the right to vote. In short, the only time until recently that this question had any national import, the theory today called “dangerous” achieved the only policy outcome anyone genuinely concerned with voting rights would desire.

From the end of the Civil War until the 21st century, what little evidence there is cuts both ways and, by consequence, against any claim of a “national consensus.” Some state court decisions adhered to the Moore petitioners’ theory, including at least one World War II–era decision that again ratified legislation permitting active servicemembers to vote by mail. A handful of state court decisions applied state constitutions against laws governing federal elections, generally without discussing the federal Constitution, but those decisions established no voting-rights precedent of any import. Virtually all gains in voting rights achieved in the 20th century were achieved by acts of Congress, decisions of the federal courts applying federal law, and acts of the very state legislatures we are supposed to believe cannot be trusted to legislate. The Moore amici and academics supporting their position have identified no legal doctrine essential to “democracy” that would fall away with a ruling for the Moore petitioners.

(Via Legal History Blog.)