Connor J. Morgan[*]
Abstract
At the conclusion of the majority opinion in Moore v. Harper, cryptic dicta warned that federal courts should review state court decisions about election-related state laws to ensure that state courts do not “transgress the ordinary bounds of judicial review.” The Moore Court provided little guidance about how federal courts should engage in this “Moore review.”
Legal scholars warn that federal courts could use Moore review to arrogate power to themselves at the expense of state courts. But scholars have not yet considered in sufficient detail how federal courts should engage in Moore review in a way that both vindicates the federal entitlement guaranteed by the U.S. Constitution’s Elections Clause and preserves the appropriate balance of power between the federal and state judiciaries.
In this Article, I build upon existing scholarship to propose a two-step analysis by which a federal court should engage in Moore review. In this inquiry, the federal court should determine whether the state court adhered to its ordinary interpretive methodology and, if it did not, whether that deviation was reasonable.
I. Introduction
Just days before the 2024 general election, Justice Kevin Dougherty of the Pennsylvania Supreme Court wrote a one-paragraph concurrence in Genser v. Butler County Board of Elections.1Genser v. Butler Cnty. Bd. of Elections, 325 A.3d 458, 486 (Pa. 2024) (Dougherty, J., concurring). The concurrence did not add to or quibble with the majority’s reasoning; rather, Justice Dougherty solely expressed his belief that the majority’s interpretation of a state election law did not “so exceed[] the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution.”2Id. (quoting Moore v. Harper, 600 U.S. 1, 37 (2023)). The Genser majority, Justice Dougherty explained, had “merely resolv[ed] a state statutory interpretation question duly raised by the litigants in a case on our normal appellate docket”—which, in Justice Dougherty’s view, “is, quite literally, our job.”3Id.
Justice Dougherty’s concurrence sought to stave off an attack leveled by Justice Sallie Mundy, who dissented in Genser and accused the majority of “exceed[ing] the bounds of statutory interpretation and supplant[ing] the power vested in our General Assembly to regulate elections.”4Id. at 486 (Mundy, J., dissenting). But dissenting opinions in statutory interpretation cases commonly accuse the majority of judicial policymaking.5See, e.g., Biden v. Nebraska, 600 U.S. 477, 506 (2023) (“It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.”). Why did Justice Dougherty speak out in this particular case?
The answer arises from an ambiguity that the Supreme Court created—but did not resolve—in Moore v. Harper.6600 U.S. 1. In Moore, the Court affirmed the North Carolina Supreme Court’s decision to strike down a partisan gerrymander on state constitutional law grounds.7Id. at 7–9. In affirming the North Carolina court, the Moore Court rejected the North Carolina Legislature’s “independent state legislature theory” (ISLT), which contended that, under the Elections Clause of the U.S. Constitution,8U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…”). state judiciaries cannot review state legislative acts regarding redistricting.9Moore, 600 U.S. at 19–22.
But the Moore Court concluded its opinion with cryptic dicta, warning that “state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”10Id. at 5. The Supreme Court has not elaborated—in Moore or in any subsequent opinion—on what it means for a state court to “transgress the ordinary bounds of judicial review,”11Id. Notably, the Supreme Court recently denied a petition for a writ of certiorari that asked precisely what standard of review should apply. See Jacobsen v. Montana Democratic Party, No. 24-220, 2025 WL 247449 (U.S. Jan. 21, 2025). and legal scholars warn that federal courts will employ this Moore dicta to arrogate power to themselves at the expense of state courts.12See, e.g., Bruce Ledewitz, Moore News About the Independent State Legislature Doctrine, 62 Duq. L. Rev. 327, 343–44 (2024); Leah M. Litman & Katherine Shaw, The “Bounds” of Moore: Pluralism and State Judicial Review, 133 Yale L.J. F. 881, 883 (2024); Nicholas Maggio & Brendan Buschi, The Mad Hatter’s Quip: Looking for Logic in the Independent State Legislature Theory, 39 Touro L. Rev. 131, 163–64 (2024); Jason Marisam, The Vagueness of the Independent State Legislature Doctrine, 81 Wash. & Lee L. Rev. Online 315, 331 (2024); Manoj Mate, New Hurdles to Redistricting Reform: State Evasion, Moore, and Partisan Gerrymandering, 56 Conn. L. Rev. 839, 859 (2024); Robert F. Williams, From Rights Arguments to Structure Arguments: The Next Stage of the New Judicial Federalism, 2023 Wis. L. Rev. 1615, 1623 (2023). Some have taken to calling the Moore dicta “ISLT-lite.”13See, e.g., Leading Case, Moore v. Harper, 137 Harv. L. Rev. 290, 296 (2023). Thus, although the Moore Court rejected ISLT (the theory that state courts cannot review state election laws), the Court legitimized ISLT-lite (the theory that federal courts can sometimes review state court decisions about state election laws).14Id.
It is rare for a federal court to review state court decisions about state laws.15See Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 491 (7th ed. 2015) (“[T]he Court regards the presence of an adequate and independent state ground as depriving it of jurisdiction to review the state court judgment.”); id. at 487 (explaining how the Supreme Court’s view “that it lacks authority to review a state court on issues of state law” resonates with the Court’s holding in Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), that federal courts lack “a general lawmaking power to fashion common law.”). But the Moore Court created a new area of the law in which federal courts may review state court decisions about state election laws,16Although the Moore decision itself reviewed a state court decision about election-related state constitutional law, Moore review likely includes federal court review of state court decisions about election-related state statutes, too. See, e.g., Litman & Shaw, supra note 12, at 886. which I refer to in this Article as “Moore review.” Because Moore review has the potential to dramatically reshape the balance of power between the federal and state judiciaries in the context of state election law adjudication, it is vital to explore how federal courts should engage in Moore review—yet this question is undertheorized. Legal scholars have illuminated the dangers of Moore review,17See generally Marisam, supra note 12. but no scholar has yet described in detail how federal courts should engage in Moore review. Due to this lack of clarity, one can understand why Justice Dougherty felt compelled to issue his concurrence: he hoped to stave off the Moore review that Justice Mundy’s dissent sought to provoke, wherein a federal court might reverse the Genser majority for “transgress[ing] the ordinary bounds of judicial review.”18Genser, 325 A.3d at 486 (Dougherty, J., concurring) (quoting Moore v. Harper, 600 U.S. 1, 36 (2023)). The Republican National Committee sought an emergency stay of the Genser Court’s decision, which the Supreme Court denied. See Republican Nat’l Comm. v. Genser, 145 S. Ct. 9 (2024). Writing for three justices in a statement regarding the denial of the stay, Justice Samuel Alito noted that the Genser court’s interpretation was “controversial.” Id. at 9.
It is worth emphasizing that Moore review does not necessarily have a partisan orientation. The Moore dicta arose, of course, as a caveat to an ideologically liberal opinion.19See Harold J. Spaeth, Lee Epstein, Ted Ruger, Jeffrey Segal, Andrew D. Martin & Sara Benesh, Modern Database: 2024 Release 01, Wash. U. L.: Sup. Ct. Database, http://supremecourtdatabase.org/analysisCaseDetail.php?sid=&cid=2022-026-01&pg=0 [https://perma.cc/7UJY-4R3B] (coding Moore v. Harper as an ideologically liberal decision). And based on the current composition of the Supreme Court, legal realists may fairly assume that when the Supreme Court eventually engages in Moore review, it will likely reach ideologically conservative outcomes.20See Litman & Shaw, supra note 12, at 893–94. But not all lower federal court judges are conservative, and “it is not hard to imagine a future in which conservative partisans on state benches embrace fraudulent vote dilution claims to strike down liberal voting laws.”21Marisam, supra note 12, at 327. In that situation, liberal advocates might seek to persuade a federal court to engage in Moore review. Consequently, this Article does not presume that the federal court engaging in Moore review is ideologically conservative or that the state court being reviewed is ideologically liberal.
In this Article, I offer a proposal for how federal courts should engage in Moore review. In Part II, I analyze the Moore v. Harper decision, the creation of ISLT-lite, and legal scholars’ warnings about how Moore review could arrogate power to federal courts at the expense of state courts. In Part III, I examine how federal courts review state court decisions regarding state law in other areas, and I survey how legal scholars have preliminarily brainstormed about how federal courts should engage in Moore review. Finally, in Part IV, I aggregate the lessons from Part III and introduce my two-step proposal for how federal courts should engage in Moore review. In reviewing whether a state court transgressed the ordinary bounds of judicial review, the federal court should analyze whether the state court adhered to its ordinary interpretive methodology and, if it did not, determine whether that deviation was reasonable.
II. Analyzing Moore v. Harper’s Dicta About ISLT-lite
A. The Creation of ISLT-lite
In Moore, the Supreme Court evaluated the North Carolina Legislature’s contention that “the Elections Clause insulates state legislatures from review by state courts for compliance with state law.”22Moore, 600 U.S. at 19. Writing for the Court, Chief Justice John Roberts rejected this maximalist version of ISLT, holding that “[t]he Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”23Id. at 22. The Moore Court thus affirmed the North Carolina Supreme Court, which had struck down the Legislature’s congressional districting map as an unconstitutional partisan gerrymander under the state constitution.24Id. at 7–9.
But the Moore Court concluded with a warning, reminding state courts that they “do not have free rein.”25Id. at 34. Rather, because “the Elections Clause expressly vests power to carry out its provisions in ‘the Legislature’ of each State,” federal courts “ha[ve] an obligation to ensure that state court interpretations of [state election] law do not evade federal law.”26Id. This duty, the majority explained, is similar to federal courts’ role in “other areas where the exercise of federal authority or the vindication of federal rights implicates questions of state law.”27Id. The Court then described these other areas,28The relationship between Moore review and federal courts’ review of state court decisions in these other areas is examined later in this Article. See infra Part III.A. and it emphasized that—despite “the general rule of accepting state court interpretations of state law”—federal courts must “temper[] such deference” in order to “safeguard limits imposed by the Federal Constitution.”29Moore, 600 U.S. at 35.
The Moore Court then reviewed Bush v. Gore,30531 U.S. 98 (2000). which “discussed the outer bounds of state court review” in a similar election-related context.31Moore, 600 U.S. at 34 (citing Bush, 531 U.S. 98). There, several Justices addressed in separate opinions whether the Florida Supreme Court “exceeded the bounds of ordinary judicial review to an extent that its interpretation violated the Electors Clause.”32Id. at 36 (citing Bush, 531 U.S. at 114 (Rehnquist, C.J., concurring); Bush, 531 U.S. at 133 (Souter, J., dissenting)). These opinions discussed the Electors Clause, which is similar to the Elections Clause. The Moore Court noted, but did not attempt to differentiate, the two standards of review proposed by Chief Justice William Rehnquist and Justice David Souter, respectively.33Id.
After surveying all these cases in which federal courts reviewed state court decisions of state law, the Moore Court ultimately declined to “adopt these or any other test” to “measure state court interpretations of state law in cases implicating the Elections Clause.”34Id. Instead, the majority ambiguously warned only that “state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”35Id. The Court later phrased this warning somewhat differently: “In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by [the Elections Clause].” Id. at 37. This cautionary advice was dicta because the Moore Court “decline[d] to address whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause.”36Id. at 36. The Court did not answer this question because the “defendants did not meaningfully present the issue in their petition . . . or in their briefing, nor did they press the matter at oral argument.” Id. But the Court may have applied the Moore dicta in another case. After deciding Moore, the Court granted certiorari, vacated, and remanded an Ohio Supreme Court decision that had struck down a congressional districting map as an unconstitutional partisan gerrymander under the state constitution. See Huffman v. Neiman, 143 S. Ct. 2687, 2687 (2023) (mem.). The Court provided no reasoning; it did not answer whether it engaged in Moore review (or—if it did—how it did so). Id.
In a concurring opinion, Justice Brett Kavanaugh shed additional—but still limited—light on the Moore dicta.37See Moore, 600 U.S. at 38–40 (Kavanaugh, J., concurring). Some scholars posit that Justice Kavanaugh (and perhaps Justice Barrett) played a role in “insist[ing] that the Moore majority remain somewhat vague” on what standard of review federal courts should apply when engaging in Moore review. Litman & Shaw, supra note 12, at 892. Recognizing that the majority left open the question of how federal courts should engage in Moore review, Justice Kavanaugh described three possible standards.38See Moore, 600 U.S. at 38–39. First, the federal court could determine whether “the state court ‘impermissibly distorted’ state law ‘beyond what a fair reading required.’”39Id. at 38 (quoting Bush v. Gore, 531 U.S. 98, 115 (2000) (Rehnquist, C.J., concurring)). Second, the federal court could assess “whether the state court exceeded ‘the limits of reasonable’ interpretation of state law.”40Id. (quoting Bush, 531 U.S. at 133 (Stevens, J., dissenting)). Third, the federal court could ask “whether the state court reached a ‘truly aberrant’ interpretation of state law.”41Id. at 39 (quoting Brief for the United States as Amicus Curiae Supporting Respondents at 27, Moore, 600 U.S. 1 (No. 21-1271)).
In Justice Kavanaugh’s view, these “three standards convey essentially the same point: Federal court review of a state court’s interpretation of state law in a federal election case should be deferential, but deference is not abdication.”42Id. Justice Kavanaugh conceded that judges may reach different outcomes under each standard, but he doubted that “the precise formulation of the standard . . . would be the decisive factor” in any divergence. Id. at 39 n.1. Nevertheless, Justice Kavanaugh stated that he would adopt the “impermissibly distorted” standard, and he would apply it both to “state court interpretations of state statutes” and to “state court interpretations of state constitutions.”43Id. at 39. And in Moore review, Justice Kavanaugh emphasized, a federal court “necessarily must examine the law of the State as it existed prior to the action of the [state] court.”44Id. (quoting Bush, 531 U.S. at 114 (Rehnquist, C.J., concurring)) (alteration in original).
Like the majority, Justice Kavanaugh declined to answer whether the North Carolina Supreme Court exceeded the ordinary bounds of judicial review, noting only that “the Court should and presumably will distill that general principle [that state courts may not transgress the ordinary bounds of judicial review] into a more specific standard” in the future.45Id. at 40.
B. The Fears About the Moore Dicta and ISLT-lite
Justice Clarence Thomas struck first in critiquing the Moore dicta. Writing in dissent, Justice Thomas observed that the Moore dicta “open[ed] a new field for Bush-style controversies over state election law—and a far more uncertain one.”46Id. at 64. Justice Neil Gorsuch joined Justice Thomas’s dissenting opinion in full, and Justice Alito joined Justice Thomas’s dissent with respect to a different part. Criticizing the majority for not describing how federal courts should engage in Moore review, Justice Thomas listed a series of fundamental unanswered questions.47Id. at 65. At bottom, Justice Thomas fretted that the Moore dicta would “invest[] potentially large swaths of state constitutional law with the character of a federal question not amenable to meaningful or principled adjudication by federal courts.”48Id. Moreover, in Justice Thomas’s view, even if the federal courts’ standard of review is deferential, this “federalization of state constitutions” will swell federal-court dockets and—at least in some cases—plunge federal courts into “quickly evolving, politically charged controversies.”49Id. Of course, one might observe that Justice Thomas’s belief—that “the people of a State” lack the power to “place state-constitutional limits on the times, places, and manners of holding congressional elections that ‘the Legislature’ of the State has the power to prescribe” under the Elections Clause—would also thrust federal courts into politically charged controversies. See id. at 56. After all, if the Moore Court had affirmed ISLT (as Justice Thomas had urged), federal courts regularly would have to review state election law decisions to protect the state legislature’s prerogative to create state election laws. See id. at 58–59. For a further discussion touching on Justice Thomas’s concerns about Moore review, see infra note 129 and accompanying text.
Legal scholars also worry about the Moore dicta, positing two primary reasons for concern.
1. Increasing Federal Judicial Involvement in State Election Law Cases
Scholars predict that the Moore dicta will expand federal courts’ jurisdiction over state election law claims where federal jurisdiction may have not otherwise existed.50See supra note 15 and accompanying text. As Professor Bruce Ledewitz explains, “bad” state court decisions are not reviewable by federal courts merely on account of their erroneousness.51See Ledewitz, supra note 12, at 332. Rather, “[u]nreasonable judicial decisions on matters of state law are state law issues only and, generally speaking, may not be reviewed by the Supreme Court.”52Id. After all, when a state court decides a case on an “independent and adequate state ground,”53Michigan v. Long, 463 U.S. 1032, 1071 (1983). the Supreme Court does “not undertake to review the decision.”54Id. at 1041. But according to the Moore dicta, because “the Elections Clause names the ‘Legislature’ and not state courts as the appropriate policy maker in regulating federal elections,” there is a “federal issue present when a state court interprets its state constitution [or statutes] in terms of state election law in a federal election.”55Ledewitz, supra note 12, at 332. And “[i]f a state court is substituting its own policy . . . preferences for those of the state legislature, it transgresses that federal interest.”56Id.
Professor Robert Williams concurs with Professor Ledewitz, noting that—in light of the Moore dicta—“state court decisions interpreting state constitutions [or statutes] in federal election cases will no longer constitute ‘adequate and independent state grounds’ insulating them from SCOTUS review.”57Williams, supra note 12, at 1623 (quoting Michigan, 463 U.S. at 1042). Rather, according to the Moore dicta, “the Elections Clause . . . creat[es] a possible federal question,” which allows federal court “jurisdiction to decide if state courts ‘transgress[ed] the ordinary bounds of judicial review.’”58Id. (quoting Moore v. Harper, 600 U.S. 1, 36 (2023)); see U.S. Const. art. III, § 2, cl. 1 (authorizing jurisdiction over cases arising under federal law); 28 U.S.C. § 1331 (conferring jurisdiction over federal question cases).
The fact that federal courts will have jurisdiction to engage in Moore review is disconcerting,59Professor Ledewitz argues that most, if not all, Moore review will occur in the Supreme Court on appeal from a state supreme court. See Ledewitz, supra note 12, at 341–43. After all, a losing party in a state court cannot appeal that decision to a lower federal court. See id. at 341 (citing Adam McLain, The Rooker–Feldman Doctrine: Toward a Workable Role, 149 U. Pa. L. Rev. 1555, 1590 n.213 (2001)). Moreover, even if a plaintiff seeks Moore review in a federal court to challenge a state supreme court’s prior interpretation of a state election law, the federal question might not arise on the face of the well-pleaded complaint. See id at 342. One could imagine, however, a federal district court engaging in Moore review in several contexts. For example, a federal district court might be asked to engage in Moore review while exercising either diversity or supplemental jurisdiction. See 28 U.S.C. §§ 1332, 1367. Or a plaintiff might ask a federal court to engage in Moore review to enjoin state officers from implementing a state court’s interpretation of a state law. See Ex parte Young, 209 U.S. 123 (1908) (holding that government officials enforcing unconstitutional laws can be sued individually for injunctive relief). Other pathways might also exist. regardless of how federal courts actually engage in Moore review. The volume of cases in which federal courts are asked to engage in Moore review could burden federal court dockets, especially in battleground states before and during each biannual federal election cycle. Further, election-related cases are often politically controversial—and now, because of the Moore dicta, federal courts may be placed in the awkward position of having to decide contentious election law issues in a manner that undermines state courts.
2. Arrogating Power to Federal Courts at the Expense of State Courts
Scholars also fear how federal courts will engage in Moore review. The Moore dicta itself provides little guidance. After all, the Moore Court’s warning—that “state courts may not transgress the ordinary bounds of judicial review”60Maggio & Buschi, supra note 12, at 163 (quoting Moore, 600 U.S. at 36).—“is not entirely clear,” given that the Court “refused to spell out a test or illustrate [its] point by providing examples.”61Id. These scholars observe that the Moore dicta may have been intentionally ambiguous. See id. (“[T]he Chief Justice is not beyond teeing up a seemingly restrained ruling with an eye towards a much more extreme decision down the road.”). Justice Kavanaugh’s concurrence provides little further clarity, echoing that “this Court need not, and ultimately does not, adopt any specific standard” for Moore review.62Moore, 600 U.S. at 39 (Kavanaugh, J., concurring). Rather, Justice Kavanaugh predicted that the Court “should and presumably will distill that general principle into a more specific standard.”63Id. at 40. Justice Kavanaugh would have adopted a standard of review that asks “whether the state court ‘impermissibly distorted’ state law ‘beyond what a fair reading required.’”64Id. at 38 (quoting Bush v. Gore, 531 U.S. 98, 115 (2000) (Rehnquist, C.J., concurring)). But whether the Court will adopt that standard—and how that standard would itself be operationalized—remains unclear.
Due to the Moore Court’s ambiguous guidance regarding how Moore review should be conducted, it is plausible that “federal courts could apply the standard in a variety of ways that constrain state court interpretation and undermine state court enforcement of democracy principles and voting rights.”65Mate, supra note 12, at 862; see generally id. at 857–62 (collecting scholarship discussing how federal courts might engage in Moore review). Three of the potential consequences of this undefined, boundaryless Moore review are worth fleshing out in detail.
First, some scholars worry that federal courts will utilize Moore review to impose particular interpretative methodologies onto state courts.66Id. at 860–61. For example, Professors Leah Litman and Kate Shaw explain how the Supreme Court (or lower federal courts) could invoke Moore review to “impose an interpretive straitjacket on the states, essentially requiring the states to adopt the Court’s preferred interpretive method, textualism, or even preferred applications of that method (i.e., the Justices’ preferred results) in particular cases.”67Litman & Shaw, supra note 12, at 893; see also Michael Weingartner, Textualism and Anti-Novelty Under Moore v. Harper, Fordham L. Voting Rts. & Democracy Project (Aug. 9, 2023), https://fordhamdemocracyproject.com/2023/08/09/textualism-and-anti-novelty-under-moore-v-harper-2/ [https://perma.cc/XCY4-VC4D] (“[I]n many circumstances, applying strict textualist and anti-novelty approaches would undercut the intent of state legislatures and produce anomalous court interpretations that depart significantly from ‘ordinary’ judicial review.”). Moore review thus “provide[s] an avenue for Justices to characterize readings of state law with which they disagree as not fair readings . . . and accordingly unconstitutional.”68Litman & Shaw, supra note 12, at 894.
Second, some scholars—such as Professor Richard Pildes—note that Moore review might chill state courts from broadly construing open-ended state constitutional principles.69See Hearing on The Independent State Legislature Theory and its Potential to Disrupt our Democracy Before the H. Comm. On H. Admin., 117th Cong. 7 (2022) (statement of Richard Pildes, Professor of Constitutional Law, New York University School of Law). Under this view, state courts might be able to continue applying specific and substantive state constitutional guarantees.70Id. at 7. But state courts might be less able to fully apply open-ended state constitutional guarantees, such as the right to free and fair elections.71Id.; accord Ned Foley, Moore v. Harper & The Need For Clarity, Election L. Blog (June 28, 2023), https://electionlawblog.org/?p=137143 [https://perma.cc/FZ4D-5KAH] (arguing that state courts should not “rewrite unambiguous state statutes . . . based on nothing more than nonspecific phrases in a state constitution,” implying that state courts should interpret open-ended state constitutional guarantees narrowly). Professor Pildes’s view thus accords with that of Professors Litman and Shaw: federal courts engaging in Moore review might be more likely to affirm state courts’ textualist interpretations of specific and enumerated constitutional provisions, and they might be more likely to reverse state court interpretations of broad constitutional provisions that necessarily require purposivist, common law-based modes of interpretation.72See supra notes 67–71 and accompanying text.
Third, some scholars anticipate that state courts will have to jump through additional hoops to avoid reversal during a future Moore review. For example, Professor Derek Muller believes that state courts will have to “explain how their decisions naturally follow from previous precedent and remain within the heartland of ordinary judicial review.”73Derek Muller, Moore v. Harper Vindicates Rehnquist’s Opinion in Bush v. Gore, Election L. Blog (June 27, 2023), https://electionlawblog.org/?p=137104 [https://perma.cc/4KCK-DL9J]. Relatedly, Professor Ned Foley thinks that the Moore dicta serves as a warning to state courts, urging them to hesitate before striking down state legislative enactments.74See Foley, supra note 71 (arguing that the Moore dicta was at least partially aimed at the Pennsylvania Supreme Court, which in a 2020 opinion “judicial[ly] alter[ed] . . . an unambiguous state legislative rule, based on nothing more than a vague provision of a state constitution.”). In Professor Foley’s view, perhaps the chilling effect produced by the Moore dicta is more significant than the standard by which Moore review is actually conducted.
All of these scholars agree that Moore review will constrain state court interpretations of state election law—a domain that, before Moore, was generally left to state courts.75Other federal constitutional provisions, like the Fourteenth Amendment, have long allowed federal courts to review state election laws. Moore now allows federal review when no other constitutional violation is alleged. Therefore, Moore review will necessarily affect the balance of power between the federal and state judiciaries. To minimize the degree to which Moore review detrimentally alters this balance of power, it is vital to explore how federal courts should engage in Moore review.
III. The Ambiguity Regarding How Federal Courts Should Engage in Moore Review
As Part II described, scholars worry that federal courts could use Moore review to arrogate power to themselves at the expense of state courts. That concern is amplified by the fact that the Supreme Court has provided little insight into how federal courts should engage in Moore review. This Part surveys this dearth of guidance, before Part IV proposes a two-step inquiry.
First, although the Moore Court contextualized Moore review by referencing other legal areas in which federal courts must “ensure that state court interpretations of [state] law do not evade federal law,”76Moore v. Harper, 600 U.S. 1, 34 (2023). the Court’s examples provide little insight into how federal courts should engage in Moore review. Second, although some scholars have begun to ponder how federal courts should engage in Moore review, their proposals do not provide sufficient guidance either to a federal court that is determining how to engage in Moore review or to a state court that is striving to stay within the ordinary bounds of judicial review.
A. The Unhelpfulness of Moore’s Discussion About Federal Court Review of State Court Decisions Concerning State Law in Other Areas
Federal courts ordinarily do not review state court decisions about state laws.77See supra note 15 and accompanying text. But as the Moore Court explained, there are exceptions.78See Moore, 600 U.S. at 34–35 (discussing implication of questions of state law in cases involving property, contracts, and the adequate and independent state grounds doctrine). In these “other areas” of the law, where “the exercise of federal authority or the vindication of federal rights implicates questions of state law,” federal courts “have an obligation to ensure that state court interpretations of that law do not evade federal law.”79Id. at 34. For example, although state law defines property rights, “[s]tates ‘may not sidestep the Takings Clause by disavowing traditional property interests.’”80Id. at 35 (quoting Phillips v. Wash. Legal Found., 524 U.S. 156, 164 (1998)). The Moore Court noted that a “similar principle applies with respect to the Contracts Clause” because, while federal courts should give deference to state courts on matters of state contract law, federal courts “are bound to decide for [them]selves whether a contract was made.”81Id. (quoting Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 100 (1938)). Finally, the Moore Court stated that, in “[c]ases raising the question whether adequate and independent grounds exist to support a state court judgment,” federal courts should “consider[] whether a state court opinion below adopted novel reasoning to stifle the ‘vindication in state courts of . . . federal constitutional rights.’”82Id. (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457–58 (1958) (alteration in original)). Professor Michael Klarman observes that NAACP is a bad example because the “state court[] had manifested, beyond a shadow of a doubt, the willingness to defy federal law.” Michael J. Klarman, Bush v. Gore Through the Lens of Constitutional History, 89 Cal. L. Rev. 1721, 1738 (2001). The Moore Court concluded that, in each of these areas, federal courts should be “mindful of the general rule of accepting state court interpretations of state law,” but they must “temper[] such deference when required by [their] duty to safeguard limits imposed by the Federal Constitution.”83Moore, 600 U.S. at 35; see also Bush v. Gore, 531 U.S. 98, 114 (2000) (Rehnquist, C.J., concurring) (“Though we generally defer to state courts on the interpretation of state law . . . there are of course areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law.”); Henry P. Monaghan, Supreme Court Review of State-Court Determinations of State Law in Constitutional Cases, 103 Colum. L. Rev. 1919, 1964 (2003) (“Our constitutional structure and history strongly support the view that . . . the Court possesses a residual ancillary jurisdiction independently to determine the content of state law whenever the Federal Constitution directly constrains its operation or incorporates it.”).
For two reasons, the Supreme Court’s jurisprudence in these areas fails to shine light on how federal courts should engage in Moore review, wherein federal courts must determine if state court interpretations of state election laws “evade” the limits imposed by the Elections Clause.84Moore, 600 U.S. at 34.
First, these examples of other areas (in which federal courts review state court decisions concerning state law) are unhelpful because the Supreme Court “has not embraced a consistent approach to reviewing state law issues embedded in questions of federal entitlement.”85Fallon, Jr. et al., supra note 15, at 523. Rather, the Supreme Court has evinced “a wide range of attitudes regarding the degree of deference to be accorded to the determination of the state court.”86Alfred Hill, The Inadequate State Ground, 65 Colum. L. Rev. 943, 969 (1965). Scholars have described this range of attitudes in a few different ways. For example, Professor Alfred Hill observes that the Court swings between exercising its “independent judgment” and engaging in “manifest error” review,87Id. and Professor Henry Monaghan notes that the Court oscillates between reviewing the state court decision de novo and giving either Skidmore or Chevron deference.88See Monaghan, supra note 83, at 1978 (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944); Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)) (discussing Contracts Clause cases in particular); see also Fallon, Jr. et al., supra note 15, at 523 (“Sometimes the Court has engaged in de novo review, sometimes settled for limited review, and sometimes deferred altogether to the state court determination.”).
Second and more fundamentally, in each of these other areas, the state law question is antecedent to a federal entitlement.89See, e.g., U.S. Const. amend. V. For example, the federal entitlement protected by the Takings Clause—to “just compensation” for “property…taken” by the government90Id.—is triggered only when the “taken” thing is defined as “property” under state law. Therefore, a court must answer whether the “taken” thing is defined as “property” under state law before the court can determine whether the federal entitlement protected by the Takings Clause is implicated.91See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972) (“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.”); Tyler v. Hennepin County, Minnesota, 598 U.S. 631, 638 (2023) (“The Takings Clause does not itself define property. For that, the Court draws on existing rules or understandings about property rights. State law is one important source. But state law cannot be the only source….So we also look to ‘traditional property law principles,’ plus historical practice and this Court’s precedents.”) (internal citations and quotation marks omitted).
In these other areas where the state law question is antecedent to a federal entitlement, federal court review is justified because state courts “cannot be fully trusted to apply state law consistent with the vindication of such a federal entitlement.”92Vikram D. Amar, The Moore the Merrier: How Moore v. Harper’s Complete Repudiation of the Independent State Legislature Theory Is Happy News for the Court, the Country, and Commentators, 2023 Cato Sup. Ct. Rev. 275, 290–91 (2022¬–2023). Interestingly, although skepticism of states is often the predicate for federal court review of state court decisions about state laws, the Supreme Court occasionally rejects this suspicion. See, e.g., Alden v. Maine, 527 U.S. 706, 755 (1999) (“We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States.”). After all, “the federal right in question runs against the state itself such that all state entities—including state courts—might be tempted to warp state law to protect the state fisc.”93Amar, supra note 92, at 291. To provide a concrete example in the context of the Takings Clause, a state court might construe the state’s definition of “property” narrowly to avoid classifying a “taken” thing as “property”—thereby not triggering the state’s obligation to provide “just compensation” for the “taken” thing. U.S. Const. amend. V.
But it is not evident what, if any, federal entitlement is protected by the Elections Clause, which could be vindicated via Moore review. As Professor Vikram Amar notes, “[u]nlike the Takings and Contracts Clause cases . . . the Elections Clause—post-Moore—does not involve any federal right that is separate from state-law entitlements and that state courts might have an incentive to evade, circumvent, or sidestep.”94Amar, supra note 92, at 292. After all, the only federal entitlement that the Elections Clause might possibly protect is the federal interest in ensuring that state “Legislature[s]” prescribe the “Time, Places, and Manner of holding [federal] Elections.”95U.S. Const. art. I, § 4, cl. 1. One can imagine how this federal entitlement could have bite, prohibiting any state actor—except the state legislature—from influencing state laws regarding federal elections. But the Moore Court “fundamentally reject[ed] the notion that ‘Legislature’ in Article I refers to any entity in particular,” holding instead that state judicial review is entirely permissible under the Elections Clause.96Amar, supra note 92, at 284 (citing Moore v. Harper, 600 U.S. 1, 22 (2023)). Therefore, under Moore, the federal entitlement protected by the Elections Clause is empty, ensuring only that the state legislative process (which includes judicial review) crafts state election laws. As Professor Amar puts it, the federal entitlement is merely “the right to have state courts comply with state law.”97Id. at 285. Professor Amar then asserts that “[i]f federal courts were to be skeptical of state-court determinations of state law in the Elections Clause arena, there would be literally no reason for federal courts not to be skeptical of all state-court interpretations of state law. And if that happened all of federalism would become a dead letter.” Id. at 292. Thus, in his view, “federal courts will necessarily defer to state-court understandings of state statutory and constitutional law meanings,” so long as state courts “reasonably engage in the same kinds of judicial processes and consider the same kinds of interpretive factors that have historically guided them to resolve election contests and other important state statutory and constitutional questions.” Id.
Thus, Moore review, which vindicates this hollow federal entitlement, is entirely different from the other areas in which federal courts review state court decisions about state laws. In those other areas, federal court review safeguards substantive federal entitlements to just compensation, contract enforcement, and due process, among others—each of which could be evaded by state court decisions about state laws. Under Moore review, however, there is no federal entitlement for federal courts to defend, except for ensuring that the state legislative process for creating state election laws—which includes state judicial review—functions normally.
For both these reasons, the Moore Court’s citations to these other legal areas are of little utility. Federal courts’ standards of review of state court decisions in these areas are murky and variable. And even if the standards of review were clear, federal court review in these other areas protects substantive federal entitlements, unlike Moore review. These other areas thus provide inapt analogies, providing little insight into how federal courts should engage in Moore review.
B. Initial Scholarly Views on How Federal Courts Should Engage in Moore Review
Some scholars have sketched initial views on how federal courts should engage in Moore review. In my view, these proposals do not provide sufficient standalone guidance to meaningfully help either a federal court determine the proper scope of Moore review or a state court stay within the ordinary bounds of judicial review. But these scholars’ views are nevertheless quite helpful because I build on them in the proposal that I offer in Part IV. These scholars’ viewpoints fall into three groups.
In the first group, some scholars urge federal courts to engage in Moore review only “in the most extreme scenarios, where [the state court has] brought about a result that clearly usurped a state legislature’s policymaking role or strayed from ordinary judicial decision-making in the state.”98Blake L. Weiman, Moore to Come: The Impending Independent State Legislature Departure Standard, 26 N.Y.U. J. Legis. & Pub. Pol’y 517, 529 (2024); see also Scott L. Kafker & Simon D. Jacobs, The Supreme Court Summons the Ghosts of Bush v. Gore: How Moore v. Harper Haunts State and Federal Constitutional Interpretation of Election Laws, 59 Wake Forest L. Rev. 61, 63–64 (2024) (“[T]he original and best understanding of the Elections Clause provides for a very limited form of federal oversight….[The Elections Clause] only prevents state courts from performing the function of state legislatures.”). But these scholars do not agree about when a scenario is sufficiently extreme.
Blake Weiman, for example, acknowledges that “what represents an extreme in this context is largely unclear.”99Weiman, supra note 98, at 529. In light of this ambiguity, Weiman urges federal courts to evaluate two considerations: “(a) the sufficiency of the state court decision’s analysis and (b) the nature of the state constitutional provision(s) at issue.”100Id. at 527. These considerations boil down to the federal court’s assessment of whether the state court’s rationale is consonant with “the state’s legal practice and tradition.”101Id. Moreover, the sufficiency of the state court’s rationale may depend on whether the state constitutional provision is broad or specific.102Id. In thinking about how federal courts will evaluate the state court’s rationale, Weiman echoes the views of Professors Litman, Shaw, and Pildes.103See supra notes 67–71 and accompanying text. The “sufficiency” of the state court’s analysis will depend on the degree to which the state court’s interpretation accords with federal modes of constitutional interpretation, especially in regard to vague state constitutional provisions.104Weiman, supra note 98, at 555. Weiman’s view thus provides little insight into how federal courts should assess the sufficiency of a state court’s interpretation. In other words, Weiman does not describe what analytical tools a federal court should employ to determine if a state court’s rationale is sufficient to survive Moore review.
Justice Scott Kafker (of the Massachusetts Supreme Judicial Court) and Simon Jacobs agree that federal courts should engage in Moore review only in extreme scenarios, positing that “a fundamental rewriting and transformation of an election statute is . . . required for a state court to arrogate to itself the legislative right to prescribe the times, places, and manner of elections.”105Kafker & Jacobs, supra note 98, at 120. But Justice Kafker and Jacobs do not describe how a federal court should identify whether a state court arrogated legislative power; rather, they assert only that this “state judicial overreaching . . . is different in kind, not degree, from interpreting the meaning of unclear election provisions.”106Id.
In the second group, Professor Laura Fitzgerald proposes that—because of the Supreme Court’s “presumption that state courts can be trusted to self-enforce their supremacy clause obligations when applying state law”—a federal court should “reverse state-court state-law judgments . . . only where it can identify and substantiate some concrete indication that the state court has deliberately manipulated state law to thwart federal law.”107Laura S. Fitzgerald, Suspecting the States: Supreme Court Review of State-Court State-Law Judgments, 101 Mich. L. Rev. 80, 89 (2002) (citing Alden v. Maine, 527 U.S. 706, 755 (1999)). Professor Fitzgerald wrote in the aftermath of Bush, long before Moore was decided—but her viewpoint applies effectively to Moore. This proposition supports the notion that a federal court engaging in Moore review should orient its inquiry toward uncovering whether the state court demonstrated bias. And in Professor Fitzgerald’s view, unless the federal court can specifically articulate and substantiate its suspicion of the state court, the federal court cannot overturn the state court’s decision about state election laws.108Id. at 177–78.
Professor Fitzgerald’s proposal could readily be applied in many of the other areas in which federal courts review state court decisions regarding state law.109See supra notes 77–83 and accompanying text. But unlike the federal constitutional guarantees that create federal entitlements in those other areas, the Elections Clause does not create any federal entitlement beyond “the right to have state courts comply with state law.”110See Amar, supra note 92, at 285 (emphasis omitted); see generally supra notes 94–97 and accompanying text. Therefore it is not clear how a federal court could determine that a state court “deliberately manipulated state [election] law to thwart” this empty entitlement,111Fitzgerald, supra note 107, at 89. unless the state court’s decision also thwarts other federal constitutional provisions or statutes.112For example, if a state court interprets a state election law in a way that intrudes on the right to vote, then an injured plaintiff could both collaterally attack that interpretation via Moore review and challenge the underlying law under the First and Fourteenth Amendments. See, e.g., Anderson v. Celebrezze, 460 U.S. 780 (1983) (holding that Ohio’s requirement for independent presidential candidates to file in March to appear on the November ballot imposed an unconstitutional burden on voters’ and supporters’ rights); Burdick v. Takushi, 504 U.S. 428 (1992) (holding that Hawaii’s write-in voting ban did not unreasonably violate citizens’ First and Fourteenth Amendment rights); accord Amar, supra note 92, at 295 (“A state-court ruling sufficiently corrupt, aberrant or irrational to warrant federal-court oversight under the Elections Clause would also fail . . . to survive even rational basis review under the Equal Protection Clause (which requires a rational fit to a permissible government purpose), much less the heightened scrutiny that is implicated on account of the fundamental ‘right to vote’ in any election, state or federal.”). In other words, because the only federal entitlement protected by the Elections Clause is the federal interest in ensuring that state legislative processes (including state judicial review) function normally to craft state election laws, it is difficult to imagine how a state court could demonstrate bias against that federal interest.113See Amar, supra note 97 and accompanying text. Professor Fitzgerald’s view thus does not provide specific guidance about how federal courts should engage in Moore review, at least where no other violations of federal law are present.
In the third group, Michael Weingartner proposes a different framework for how federal courts should engage in Moore review.114See Weingartner, supra note 67. He writes that federal courts engaging in Moore review should “focus . . . on understanding and maintaining the type of interpretation that state courts ordinarily do, and have done for centuries.”115Id. That way, federal courts could avoid “introduc[ing] new and potentially disruptive principles like textualism or an anti-novelty bias that lack any basis in state law or practice.”116Id. Weingartner does not describe, however, how federal courts engaging in Moore review should go about analyzing state court modes of interpretation.
These three groups of viewpoints do not provide specific instructions to federal courts about how they should engage in Moore review. But this legal scholarship is helpful because it illuminates important guiding principles that underlie my proposal in Part IV. At bottom, federal courts engaging in Moore review should reverse state court decisions about state election laws only in rare or extreme situations,117See supra notes 98 and 105 and accompanying text. where the federal court can articulate and substantiate its belief that a state court deviated from its ordinary practices.118See supra notes 101, 107–108, and 115 and accompanying text.
IV. A Proposal For How Federal Courts Should Engage in Moore Review
To ensure that federal courts do not apply Moore review in a way that adversely affects the balance of power between the federal and state judiciaries, it is important to explore in greater detail how federal courts should engage in Moore review. This proposal is intended to provide guidance both to federal courts seeking to engage in Moore review and to state courts attempting to stay within the ordinary bounds of judicial review.
1. Defining What Federal Entitlement Is Vindicated by Moore Review
Before proposing how federal courts should engage in Moore review, it is necessary to first define with greater precision what federal entitlement is protected by the Elections Clause (and thereby is vindicated by Moore review). The lessons of Part III are helpful here. In Part III.A, I agreed with Professor Amar that the federal entitlement protected by Moore review is the “right to have state courts comply with state law.”119See Amar, supra note 92, at 285 (emphasis omitted). In the abstract, this federal entitlement is tautological, but this entitlement takes on substance in light of Part III.B’s lessons. The legal scholars’ views surveyed in that section converge on a common principle: Moore review should consider whether a state court’s interpretation of a state election law adhered to the state court’s ordinary methodology for statutory or constitutional interpretation.120See Weingartner, supra note 67 (arguing that Moore review should “focus…on understanding and maintaining the type of interpretation that state courts ordinarily do”); Weiman, supra note 98, at 527 (arguing that Moore review should focus on “whether and to what extent the state court decision departs from the state’s legal practice and tradition”); Fitzgerald, supra note 107, at 96 (arguing that federal courts should reverse state court decisions about state laws only when there is “some concrete indication that the state court has deliberately manipulated state law”—perhaps by departing from its ordinary interpretive methodology—“to thwart federal law”). After all, a “range of substantive and methodological diversity . . . characterizes state constitutions and their proper interpretation,” and a state court may adopt a methodology that “is more purposive, or structural and holistic, or precedent-based, or representation-reinforcing, or democracy-promoting, or canon-driven, than relentlessly textual.”121Amar, supra note 92, at 289 n.51. Moore review should account for state courts’ myriad interpretive methodologies.
For these reasons, I posit that the federal entitlement protected by the Elections Clause—and which Moore review should vindicate—is the federal interest in ensuring that a state court does not unreasonably deviate from its ordinary interpretive methodology when it interprets state election laws.122Put another way, “the right to have state courts comply with state law,” Amar, supra note 92, at 285, is the right to ensure that a state court adheres to its ordinary interpretive methodology when it interprets state election law. At a theoretical level, my proposal is most similar to Weingartner’s view. See Weingartner, supra note 67. In other words, the Elections Clause requires state courts to adhere to methodological stare decisis in election-related cases,123J. Stephen Tagert, To Erie or Not to Erie: Do Federal Courts Follow State Statutory Interpretation Methodologies?, 66 Duke L.J. 211, 214 (2016) (“Methodological stare decisis occurs when courts give precedential effect to judicial statements about methodology.”). or to sufficiently justify any deviation from their ordinary interpretive methodology.124See infra Part IV.C.
This proposition is supported by clues in Moore itself. The Moore dicta, though sparse, suggests that state courts should behave “ordinar[ily].”125Moore v. Harper, 600 U.S. 1, 37 (2023) (stating that “state courts may not so exceed the bounds of ordinary judicial review,” thereby implying that state courts violate these bounds when they do not act ordinarily). It also suggested that there are “bounds” of possible interpretations that are reasonable—not that there is a single best interpretation.126Id. Further, in his concurrence, Justice Kavanaugh explained that “in reviewing state court interpretations of state law, ‘we necessarily must examine the law of the State as it existed prior to the action of the [state] court.’”127Id. at 39 (Kavanaugh, J., concurring) (quoting Bush v. Gore, 531 U.S. 98, 114 (2000) (Rehnquist, C.J., concurring)). That examination of pre-existing state law could refer to an inquiry into the state court’s ordinary interpretive methodology, especially given that this review is “deferential.”128Id. Finally, Justice Thomas’s dissent raised several questions that intimate that Moore review might require assessing a state court’s methodological precedents.129Id. at 65 (Thomas, J., dissenting) (“What methods of constitutional interpretation do [the bounds of ordinary judicial review] allow? Do those methods vary from State to State? And what about stare decisis—are federal courts to review state courts’ treatment of their own precedents for some sort of abuse of discretion?”) (emphasis omitted). For these reasons, although the Moore Court did not answer what Moore review should entail, my proposition—that the Elections Clause requires state courts to apply their ordinary interpretive methodologies or to sufficiently justify any deviation—is not inconsistent with Moore itself.
2. Step 1: Did the State Court Adhere to Methodological Stare Decisis?
In my view, the Elections Clause requires state courts to employ their ordinary interpretive methodology when interpreting state election laws. In turn, a federal court engaging in Moore review should inquire into whether the state court followed that requirement.
It is worth emphasizing at the outset that this inquiry should focus solely on whether the state court followed its methodological precedents, rather than on the substance of the interpretation. An interpretive methodology might generate multiple reasonable interpretations, rather than one best answer.130See, e.g., Biden v. Nebraska, 600 U.S. 477, 507 (2023) (noting that the Court “employed the traditional tools of judicial decisionmaking” and that “[r]easonable minds may disagree with [its] analysis”). But see Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024) (“[C]ourts use every tool at their disposal to determine the best reading of the statute . . . .”) (emphasis added). Therefore, a federal court engaging in Moore review should answer merely whether the state court could have reasonably reached its interpretation by applying its ordinary interpretive methodology. If no reasonable jurist could have reached that interpretation via that particular interpretive methodology, then the state court necessarily deviated from that methodology, which might merit reversal.131See infra Part IV.C.
Although the federal judiciary lacks an entrenched commitment to methodological stare decisis,132See Recent Case, FTC v. Credit Bureau Center, LLC, 133 Harv. L. Rev. 1444, 1448 (2020) (“While substantive stare decisis is entrenched in our legal system, federal courts generally reject methodological stare decisis.”); see also Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology As “Law” and the Erie Doctrine, 120 Yale L.J. 1898, 1924 (2011) (“[T]he federal courts are wholly inconsistent about whether state or federal methodology applies to state statutes.”). But see Aaron-Andrew P. Bruhl, Interpreting State Statutes in Federal Court, 98 Notre Dame L. Rev. 61, 79 (2022) (“[T]he federal courts generally understand themselves to be bound to apply state interpretive methods to state statutes.”). federal courts are well-equipped to answer whether a state court followed its ordinary interpretive methodology. This inquiry is similar to the analyses that federal courts are familiar with conducting under Erie,133Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). Klaxon,134Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941). and—until recently—Chevron.135Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), overruled by Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024). In each of these regimes, federal courts step outside of their normal role as independent adjudicators. In cases implicating Erie and Klaxon, a federal court must determine how a state court would decide a legal question.136The Erie line of cases “require[s] federal court adherence to state ‘meta’ principles of law, as well as state definitions of rights and duties.” Michael C. Dorf, Prediction and the Rule of Law, 42 UCLA L. Rev. 651, 713 (1995). Several scholars contend that Erie’s logic compels federal courts to adhere to states’ interpretive methodologies when federal courts interpret state statutes. See, e.g., Gluck, supra note 132, at 1991 (“When federal courts overlook state methodology and apply only federal interpretive principles, they are not engaging with state practice.”); Tagert, supra note 123, at 217 (“[B]ecause statutory interpretation should be considered substantive law, federal courts should use Erie for statutory interpretation so that both federal and state courts apply the same legal rules to state statutes no matter the venue.”). Similarly, Klaxon requires federal courts sitting in diversity to “apply the choice-of-law rules of the state in which the federal court sits.” Zachary B. Pohlman, State Statutory Interpretation and Horizontal Choice of Law, 70 U. Kan. L. Rev. 505, 557 (2022) (“If the state’s choice-of-law regime would have it apply, say, a sister state’s interpretive methodology, the federal court . . . need[s] to interpret the statute according to that state’s methodology.”). And in cases implicating Chevron, a federal court (formerly) determined if an agency’s interpretation of a statutory ambiguity was reasonable.137Chevron was “a canon of interpretation that tells courts when to defer to the extrinsic evidence of agency statutory interpretations.” Abbe R. Gluck, Statutory Interpretation Methodology As “Law”: Oregon’s Path-Breaking Interpretive Framework and Its Lessons for the Nation, 47 Willamette L. Rev. 539, 561 (2011). When undertaking Moore review, a federal court must analogously determine whether a state court followed its methodological precedents for constitutional or statutory interpretation.138While the foregoing doctrines each pertain to statutory interpretation, their principles apply equally to constitutional interpretation. Both statutory and constitutional interpretations could be the subjects of Moore review. See, e.g., Litman & Shaw, supra note 12, at 900.
A federal court has several pathways to discover a state court’s ordinary interpretive methodology. First, the state court decision subject to Moore review might itself explain the state court’s interpretive methodology, articulating either how that interpretation follows from the state court’s methodological precedents or why the state court is justified in “overrul[ing] a proposition of interpretive methodology.”139Aaron-Andrew P. Bruhl, Eager to Follow: Methodological Precedent in Statutory Interpretation, 99 N.C. L. Rev. 101, 148 (2020). Bruhl explains that, although a state court may “be more willing to overrule interpretive doctrines than substantive precedents” on reliance-based grounds, one can still expect that state court “to explain that stare decisis is relaxed, rather than to ignore the analysis completely.” Id. For a discussion about whether state courts can both overrule a methodological precedent and avoid reversal during Moore review, see infra Part IV.C. Second, a previous decision from that state court might explain the state court’s interpretive methodology.140See, e.g., Portland Gen. Elec. Co. v. Bureau of Lab. & Indus., 859 P.2d 1143, 1145–47 (Or. 1993) (adopting a three-tiered methodology for statutory interpretation). Until its abrogation by statute, the decision constituted an archetypal methodological precedent that the Oregon Supreme Court “applied . . . religiously . . . without a single dissenting opinion from any member of the court arguing that the methodology was not real law or that it did not control as a matter of stare decisis.” Gluck, supra note 137, at 546 (internal quotation marks omitted). Third, even though some state courts lack an “established methodology,”141Bruhl, supra note 132, at 97. “every state legislature in the country has enacted legislation codifying certain canons of construction that state courts are expected to follow when interpreting statutes.”142Anita S. Krishnakumar, Reconsidering Substantive Canons, 84 U. Chi. L. Rev. 825, 896 (2017); see generally Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 Geo. L.J. 341 (2010). Importantly, however, Professor Abbe Gluck observes that state courts sometimes reject “rules of interpretation that have been legislated by statute,” adhering to their own preferred interpretive methodologies. Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750, 1824 (2010). Whether the state court or legislature has the better of this conflict does not matter in Moore review. The federal court’s task is to determine whether the state court adhered to its ordinary interpretive methodology—not whether that methodology complies with legislative directives. Of course, this conflict might complicate the preliminary question of what constitutes the state court’s ordinary interpretive methodology. All of these sources might be useful to the federal court in ascertaining the state court’s ordinary interpretive methodology—and whether the state court adhered to it.
3. Step 2: Was the Deviation from Methodological Stare Decisis Reasonable?
In my view, Moore review does not require reversal as soon as the federal court determines that the state court deviated from methodological stare decisis.143Throughout this Article, I use the term “reverse,” but the proper action will depend on the case’s posture. The Supreme Court could reverse a state court during Moore review. But the term “reverse” would not accurately describe, for example, a federal court order that enjoins state officials from enforcing a state court decision that failed Moore review. See supra note 59 (describing how Moore review could arise in lower federal courts). Rather, the federal court should next address whether the state court’s deviation was reasonable.
A reasonable deviation—which would not warrant reversal during Moore review—could occur in at least two circumstances. First, a state court decision might itself announce a new methodology or explain why a new methodology overcomes methodological stare decisis.144See supra note 139. A state court’s decision to apply a new methodology might be especially common—and thus perhaps less suspect—in states that do not have well-established methodological precedents. A state court’s application of a new methodology might be presumptively suspect, but with sufficient explanation regarding the state court’s justification for applying the new methodology,145See Melissa Murray, The Symbiosis of Abortion and Precedent, 134 Harv. L. Rev. 308, 328 (2020) (explaining that courts apply “precedents on precedent” to determine if stare decisis requires upholding a past precedent or not); Note, The Paradox of Precedent About Precedent, 138 Harv. L. Rev. 797, 798–800 (2025) (describing precedents about precedent). that action would likely fall within the “ordinary bounds of judicial review”—after all, creating, applying, and overturning precedent are core judicial functions.146Cf. Weiman, supra note 98, at 527 (positing that, in some circumstances, “the state court’s burden is higher to demonstrate the propriety of its decision as appropriately rooted in state law”). While the federal entitlement protected by the Elections Clause generally prohibits state courts from deviating from their methodological precedents, this federal entitlement would intrude on state judicial decision-making to an intolerable degree if it irrevocably trapped state courts’ interpretive methodologies in amber.147Cf., e.g., Alden v. Maine, 527 U.S. 706, 709 (1999) (“Federalism requires that [the federal government] accord States the respect and dignity due them as residuary sovereigns and joint participants in the Nation’s governance.”).
Second, state courts might apply a different interpretive methodology in election-related cases than they apply in other cases. For example, many states’ interpretive methodologies include a judicially created or legislatively enacted “democracy canon,” which compels state courts to liberally construe election-related laws in favor of voting rights.148See generally Richard L. Hasen, The Democracy Canon, 62 Stan. L. Rev. 69 (2009); Jessica Bulman-Pozen & Miriam Seifter, The Democracy Principle in State Constitutions, 119 Mich. L. Rev. 859, 908 (2021) (“The commitment to popular self-rule pervades all fifty state constitutions and has emerged through interstate borrowing in drafting and interpretation, as well as through dialogue with the federal Constitution. It is thus appropriate for constitutional interpreters to consider a shared state commitment to democracy as they make sense of and implement provisions contained in particular documents.”). Via this canon, a state court might interpret an election law differently than it would interpret another statute. In election-related cases, the federal court should review the state court’s decision in light of the state court’s election law-specific methodology, rather than its general interpretive methodology.
Beyond these two considerations, there may be other reasons why a federal court engaging in Moore review should find that a state court did not transgress the ordinary bounds of judicial review, even if it deviated from methodological stare decisis. In my view, the touchstone for this second step of Moore review is whether the state court’s deviation was sufficiently reasonable.
Of course, a state court’s deviation from its methodological precedents in an election-related case might sometimes indicate that the state court “manipulated state law,”149Fitzgerald, supra note 107, at 89. Again, in my view, the federal entitlement protected by the Elections Clause is the federal interest in ensuring that a state court does not unreasonably deviate from its ordinary interpretive methodology when it interprets state election laws. See supra notes 122–124 and accompanying text. An unreasonable or unexplained deviation from a state court’s ordinary interpretive methodology would violate this federal entitlement. thereby “transgress[ing] the ordinary bounds of judicial review.”150Moore v. Harper, 600 U.S. 1, 36 (2023). In evaluating whether a state court’s deviation was unreasonable, the federal court might consider (among other factors) whether the state court purported to apply its ordinary interpretive method but reached a result that no reasonable jurist could have reached,151See supra note 131 and accompanying text. and whether the state court adequately explained why its “precedents on precedent” justified the court in deviating from methodological stare decisis.152See supra notes 144–147 and accompanying text. But in those cases where the federal court determines that the state court’s deviation was unreasonable, the federal court is justified in reversing the state court decision.
4. Applying Moore Review to Genser v. Butler County Board of Elections
I conclude with an example of how a federal court should engage in Moore review, applying my two-step proposal to review the aforementioned Genser decision.153Genser v. Butler Cnty. Bd. of Elections, 325 A.3d 458 (Pa. 2024). Genser should easily survive Moore review because the Pennsylvania court adhered to its methodological precedents.
The question in Genser was whether a voter who failed to enclose their mail-in ballot in a Secrecy Envelope could then cast a provisional ballot on Election Day.154Id. at 461. In a previous case, the Pennsylvania court had held that the “failure to follow the mandatory requirements for voting by mail”—which requires a Secrecy Envelope—“nullifies the attempt to vote by mail and the ballot.”155Id. at 479 (citing Pa. Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020)). As such, the Genser court held that a “ballot lacking a Secrecy Envelope is void.”156Id. at 480.
The resulting question was whether the Election Code, which required the County Board of Elections to count a provisional ballot so long as the voter “did not cast any other ballot,” prohibited the Board from counting this voter’s provisional ballot.157Id. (quoting 25 Pa. Stat. Ann. § 3050(a.4)(5)(i)). The Genser court described this question as “a question of statutory interpretation.”158Id. at 475. The court explained that its ordinary interpretive methodology is to use the text as its “primary guide” to “ascertaining the General Assembly’s legislative intent,” as required by Pennsylvania’s Statutory Construction Act.159Id. at 479.
Applying this textualist interpretive methodology, the court followed the text, holding that because “the Secrecy Envelope was not used,” “no ballot was received.”160Id. at 481. And because no ballot was received, “the Board could not refuse to count Electors’ provisional ballots.”161Id.
The Pennsylvania court also noted its democracy-canon precedent, explaining that “[t]he General Assembly wrote the Election Code with the purpose of enabling citizens to exercise their right to vote.”162Id. at 482 (citing In re Luzerne Cnty. Return Bd., 290 A.2d 108, 109 (Pa. 1972)). In the court’s view, this democracy-promoting methodological precedent bolstered its textualist reading of the statute.163Id. at 482–83.
Because the Pennsylvania court applied its methodological precedents to arrive at its decision, if a federal court engages in Moore review regarding Genser, it should uphold the Pennsylvania court.
V. Conclusion
The dearth of guidance provided by the Moore Court about how federal courts should engage in Moore review creates the risk that federal courts will use Moore review to arrogate power to themselves at the expense of state courts. This Article offers a proposal for how federal courts should engage in Moore review. To vindicate the narrow federal entitlement protected by the Elections Clause, Moore review allows a federal court to determine whether a state court adhered to its methodological precedents in election-related cases. If it did not, the federal court should analyze whether the state court had a sufficiently good reason for deviating from methodological stare decisis. This two-step inquiry is humble, asking only whether the state court adhered to its ordinary interpretive methodology—not whether the federal court would have interpreted the law in the same way. But when a state court unreasonably deviates from methodological stare decisis, Moore review has teeth, allowing the federal court to reverse the state court’s decision.
[*] J.D., Harvard Law School, 2025; B.S., University of Utah, 2019. Thank you to my Election Law classmates, and especially to Lauren Newby, for helping to shape my thinking about this Article. And thank you to Mia Berman, Marissa Medici, and rest of the Harvard Journal on Legislation team for their diligent efforts in editing this piece. All views and mistakes are my own.