{"id":4286,"date":"2025-06-01T01:01:00","date_gmt":"2025-06-01T05:01:00","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jol\/?p=4286"},"modified":"2025-10-13T11:18:25","modified_gmt":"2025-10-13T15:18:25","slug":"moore-harper-morgan","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2025\/06\/01\/moore-harper-morgan\/","title":{"rendered":"Judging the Ordinary Bounds of Judicial Review: A Proposal For How Federal Courts Should Review State Courts’ Interpretations of State Election Laws Under Moore v. Harper"},"content":{"rendered":"

Connor J. Morgan[*]<\/a> <\/span><\/strong><\/p>\n<\/p>\n

Abstract<\/span><\/p>\n

At the conclusion of the majority opinion in <\/em>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 \u201ctransgress the ordinary bounds of judicial review.\u201d The <\/em>Moore Court provided little guidance about how federal courts should engage in this \u201c<\/em>Moore review.\u201d <\/em><\/p>\n

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 <\/em>Moore review in a way that both vindicates the federal entitlement guaranteed by the U.S. Constitution\u2019s Elections Clause and preserves the appropriate balance of power between the federal and state judiciaries. <\/em><\/p>\n

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 cour<\/em>t should determine whether the state court adhered to its ordinary interpretive methodology and, if it did not, whether that deviation was reasonable.<\/em><\/p>\n

I. Introduction<\/span><\/p>\n

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<\/em>.1<\/a><\/sup>Genser v. Butler Cnty. Bd. of Elections, 325 A.3d 458, 486 (Pa. 2024) (Dougherty, J., concurring).<\/span> The concurrence did not add to or quibble with the majority\u2019s reasoning; rather, Justice Dougherty solely expressed his belief that the majority\u2019s interpretation of a state election law did not \u201cso 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.\u201d2<\/a><\/sup>Id.<\/em> (quoting Moore v. Harper, 600 U.S. 1, 37 (2023)).<\/span> The Genser<\/em> majority, Justice Dougherty explained, had \u201cmerely resolv[ed] a state statutory interpretation question duly raised by the litigants in a case on our normal appellate docket\u201d\u2014which, in Justice Dougherty\u2019s view, \u201cis, quite literally, our job.\u201d3<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Justice Dougherty\u2019s concurrence sought to stave off an attack leveled by Justice Sallie Mundy, who dissented in Genser <\/em>and accused the majority of \u201cexceed[ing] the bounds of statutory interpretation and supplant[ing] the power vested in our General Assembly to regulate elections.\u201d4<\/a><\/sup>Id.<\/em> at 486 (Mundy, J., dissenting).<\/span> But dissenting opinions in statutory interpretation cases commonly accuse the majority of judicial policymaking.5<\/a><\/sup>See, e.g.<\/em>, Biden v. Nebraska, 600 U.S. 477, 506 (2023) (\u201cIt 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.\u201d).<\/span> Why did Justice Dougherty speak out in this particular case?<\/p>\n

The answer arises from an ambiguity that the Supreme Court created\u2014but did not resolve\u2014in Moore v. Harper<\/em>.6<\/a><\/sup>600 U.S. 1.<\/span> In Moore<\/em>, the Court affirmed the North Carolina Supreme Court\u2019s decision to strike down a partisan gerrymander on state constitutional law grounds.7<\/a><\/sup>Id.<\/em> at 7\u20139.<\/span> In affirming the North Carolina court, the Moore<\/em> Court rejected the North Carolina Legislature\u2019s \u201cindependent state legislature theory\u201d (ISLT), which contended that, under the Elections Clause of the U.S. Constitution,8<\/a><\/sup>U.S. Const.<\/span> art. I, \u00a7 4, cl. 1 (\u201cThe Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof\u2026\u201d).<\/span> state judiciaries cannot review state legislative acts regarding redistricting.9<\/a><\/sup>Moore<\/em>, 600 U.S. at 19\u201322.<\/span><\/p>\n

But the Moore<\/em> Court concluded its opinion with cryptic dicta, warning that \u201cstate 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.\u201d10<\/a><\/sup>Id. <\/em>at 5.<\/span> The Supreme Court has not elaborated\u2014in Moore<\/em> or in any subsequent opinion\u2014on what it means for a state court to \u201ctransgress the ordinary bounds of judicial review,\u201d11<\/a><\/sup>Id.<\/em> Notably, the Supreme Court recently denied a petition for a writ of certiorari that asked precisely what standard of review should apply. See<\/em> Jacobsen v. Montana Democratic Party, No. 24-220, 2025 WL 247449 (U.S. Jan. 21, 2025).<\/span> and legal scholars warn that federal courts will employ this Moore<\/em> dicta to arrogate power to themselves at the expense of state courts.12<\/a><\/sup>See, e.g.<\/em>, Bruce Ledewitz, Moore News About the Independent State Legislature Doctrine<\/em>, 62 Duq. L. Rev.<\/span> 327, 343\u201344 (2024); Leah M. Litman & Katherine Shaw, The \u201cBounds\u201d of <\/em>Moore: Pluralism and State Judicial Review<\/em>, 133 Yale L.J. F.<\/span> 881, 883 (2024); Nicholas Maggio & Brendan Buschi, The Mad Hatter\u2019s Quip: Looking for Logic in the Independent State Legislature Theory<\/em>, 39 Touro L. Rev.<\/span> 131, 163\u201364 (2024); Jason Marisam, The Vagueness of the Independent State Legislature Doctrine<\/em>, 81 Wash. & Lee L. Rev. Online<\/span> 315, 331 (2024); Manoj Mate, New Hurdles to Redistricting Reform: State Evasion, <\/em>Moore, and Partisan Gerrymandering<\/em>, 56 Conn. L. Rev.<\/span> 839, 859 (2024); Robert F. Williams, From Rights Arguments to Structure Arguments: The Next Stage of the New Judicial Federalism<\/em>, 2023 Wis. L. Rev.<\/span> 1615, 1623 (2023). <\/span> Some have taken to calling the Moore<\/em> dicta \u201cISLT-lite.\u201d13<\/a><\/sup>See, e.g.<\/em>, Leading Case<\/em>, Moore v. Harper, 137 Harv. L. Rev.<\/span> 290, 296 (2023).<\/span> Thus, although the Moore<\/em> 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).14<\/a><\/sup>Id.<\/em><\/span><\/p>\n

It is rare for a federal court to review state court decisions about state laws.15<\/a><\/sup>See<\/em> Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart & Wechsler\u2019s The Federal Courts and the Federal System<\/span> 491 (7th ed. 2015) (\u201c[T]he Court regards the presence of an adequate and independent state ground as depriving it of jurisdiction to review the state court judgment.\u201d); id.<\/em> at 487 (explaining how the Supreme Court\u2019s view \u201cthat it lacks authority to review a state court on issues of state law\u201d resonates with the Court\u2019s holding in Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), that federal courts lack \u201ca general lawmaking power to fashion common law.\u201d).<\/span> But the Moore<\/em> Court created a new area of the law in which federal courts may review state court decisions about state election laws,16<\/a><\/sup>Although the Moore<\/em> decision itself reviewed a state court decision about election-related state constitutional law, Moore<\/em> review likely includes federal court review of state court decisions about election-related state statutes, too. See, e.g.<\/em>, Litman & Shaw, supra<\/em> note 12, at 886.<\/span> which I refer to in this Article as \u201cMoore<\/em> review.\u201d Because Moore<\/em> 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<\/em> review\u2014yet this question is undertheorized. Legal scholars have illuminated the dangers of Moore<\/em> review,17<\/a><\/sup>See generally <\/em>Marisam, supra<\/em> note 12. <\/span> but no scholar has yet described in detail how<\/em> federal courts should engage in Moore<\/em> 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<\/em> review that Justice Mundy\u2019s dissent sought to provoke, wherein a federal court might reverse the Genser<\/em> majority for \u201ctransgress[ing] the ordinary bounds of judicial review.\u201d18<\/a><\/sup>Genser<\/em>, 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<\/em> Court\u2019s decision, which the Supreme Court denied. See<\/em> Republican Nat\u2019l 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<\/em> court\u2019s interpretation was \u201ccontroversial.\u201d Id.<\/em> at 9. <\/span><\/p>\n

It is worth emphasizing that Moore<\/em> review does not necessarily have a partisan orientation. The Moore<\/em> dicta arose, of course, as a caveat to an ideologically liberal opinion.19<\/a><\/sup>See<\/em> Harold J. Spaeth, Lee Epstein, Ted Ruger, Jeffrey Segal, Andrew D. Martin & Sara Benesh, Modern Database: 2024 Release 01<\/em>, Wash. U. L.: Sup. Ct. Database<\/span>, http:\/\/supremecourtdatabase.org\/analysisCaseDetail.php?sid=&cid=2022-026-01&pg=0 [https:\/\/perma.cc\/7UJY-4R3B] (coding Moore v. Harper<\/em> as an ideologically liberal decision).<\/span> And based on the current composition of the Supreme Court, legal realists may fairly assume that when the Supreme Court eventually engages in Moore<\/em> review, it will likely reach ideologically conservative outcomes.20<\/a><\/sup>See<\/em> Litman & Shaw, supra<\/em> note 12, at 893\u201394.<\/span> But not all lower federal court judges are conservative, and \u201cit 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.\u201d21<\/a><\/sup>Marisam, supra<\/em> note 12, at 327.<\/span> In that situation, liberal advocates might seek to persuade a federal court to engage in Moore<\/em> review. Consequently, this Article does not presume that the federal court engaging in Moore<\/em> review is ideologically conservative or that the state court being reviewed is ideologically liberal.<\/p>\n

In this Article, I offer a proposal for how federal courts should engage in Moore<\/em> review. In Part II, I analyze the Moore v. Harper<\/em> decision, the creation of ISLT-lite, and legal scholars\u2019 warnings about how Moore<\/em> 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<\/em> 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<\/em> 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.<\/p>\n

II. Analyzing Moore v. Harper<\/em>\u2019s Dicta About ISLT-lite<\/span><\/p>\n

A. <\/span>The Creation of ISLT-lite<\/em><\/p>\n

In Moore<\/em>, the Supreme Court evaluated the North Carolina Legislature\u2019s contention that \u201cthe Elections Clause insulates state legislatures from review by state courts for compliance with state law.\u201d22<\/a><\/sup>Moore<\/em>, 600 U.S. at 19.<\/span> Writing for the Court, Chief Justice John Roberts rejected this maximalist version of ISLT, holding that \u201c[t]he Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.\u201d23<\/a><\/sup>Id.<\/em> at 22.<\/span> The Moore<\/em> Court thus affirmed the North Carolina Supreme Court, which had struck down the Legislature\u2019s congressional districting map as an unconstitutional partisan gerrymander under the state constitution.24<\/a><\/sup>Id.<\/em> at 7\u20139.<\/span><\/p>\n

But the Moore<\/em> Court concluded with a warning, reminding state courts that they \u201cdo not have free rein.\u201d25<\/a><\/sup>Id.<\/em> at 34.<\/span> Rather, because \u201cthe Elections Clause expressly vests power to carry out its provisions in \u2018the Legislature\u2019 of each State,\u201d federal courts \u201cha[ve] an obligation to ensure that state court interpretations of [state election] law do not evade federal law.\u201d26<\/a><\/sup>Id.<\/em> <\/span> This duty, the majority explained, is similar to federal courts\u2019 role in \u201cother areas where the exercise of federal authority or the vindication of federal rights implicates questions of state law.\u201d27<\/a><\/sup>Id.<\/em> <\/span> The Court then described these other areas,28<\/a><\/sup>The relationship between Moore<\/em> review and federal courts\u2019 review of state court decisions in these other areas is examined later in this Article. See infra<\/em> Part III.A.<\/span> and it emphasized that\u2014despite \u201cthe general rule of accepting state court interpretations of state law\u201d\u2014federal courts must \u201ctemper[] such deference\u201d in order to \u201csafeguard limits imposed by the Federal Constitution.\u201d29<\/a><\/sup>Moore<\/em>, 600 U.S. at 35.<\/span><\/p>\n

The Moore<\/em> Court then reviewed Bush v. Gore<\/em>,30<\/a><\/sup>531 U.S. 98 (2000).<\/span> which \u201cdiscussed the outer bounds of state court review\u201d in a similar election-related context.31<\/a><\/sup>Moore<\/em>, 600 U.S. at 34 (citing Bush<\/em>, 531 U.S. 98).<\/span> There, several Justices addressed in separate opinions whether the Florida Supreme Court \u201cexceeded the bounds of ordinary judicial review to an extent that its interpretation violated the Electors Clause.\u201d32<\/a><\/sup>Id. <\/em>at 36 (citing Bush<\/em>, 531 U.S. at 114 (Rehnquist, C.J., concurring); Bush<\/em>, 531 U.S. at 133 (Souter, J., dissenting)). These opinions discussed the Electors Clause, which is similar to the Elections Clause.<\/span> The Moore<\/em> Court noted, but did not attempt to differentiate, the two standards of review proposed by Chief Justice William Rehnquist and Justice David Souter, respectively.33<\/a><\/sup>Id.<\/em><\/span><\/p>\n

After surveying all these cases in which federal courts reviewed state court decisions of state law, the Moore<\/em> Court ultimately declined to \u201cadopt these or any other test\u201d to \u201cmeasure state court interpretations of state law in cases implicating the Elections Clause.\u201d34<\/a><\/sup>Id.<\/em> <\/span> Instead, the majority ambiguously warned only that \u201cstate 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.\u201d35<\/a><\/sup>Id. <\/em>The Court later phrased this warning somewhat differently: \u201cIn 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].\u201d Id.<\/em> at 37.<\/span> This cautionary advice was dicta because the Moore<\/em> Court \u201cdecline[d] to address whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause.\u201d36<\/a><\/sup>Id.<\/em> at 36. The Court did not answer this question because the \u201cdefendants did not meaningfully present the issue in their petition . . . or in their briefing, nor did they press the matter at oral argument.\u201d Id.<\/em> But the Court may have applied the Moore<\/em> dicta in another case. After deciding Moore<\/em>, 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<\/em> Huffman v. Neiman, 143 S. Ct. 2687, 2687 (2023) (mem.). The Court provided no reasoning; it did not answer whether it engaged in Moore<\/em> review (or\u2014if it did\u2014how it did so). Id.<\/em><\/span><\/p>\n

In a concurring opinion, Justice Brett Kavanaugh shed additional\u2014but still limited\u2014light on the Moore<\/em> dicta.37<\/a><\/sup>See Moore<\/em>, 600 U.S. at 38\u201340 (Kavanaugh, J., concurring). Some scholars posit that Justice Kavanaugh (and perhaps Justice Barrett) played a role in \u201cinsist[ing] that the Moore<\/em> majority remain somewhat vague\u201d on what standard of review federal courts should apply when engaging in Moore<\/em> review. Litman & Shaw, supra<\/em> note 12, at 892.<\/span> Recognizing that the majority left open the question of how federal courts should engage in Moore<\/em> review, Justice Kavanaugh described three possible standards.38<\/a><\/sup>See Moore<\/em>, 600 U.S. at 38\u201339.<\/span> First, the federal court could determine whether \u201cthe state court \u2018impermissibly distorted\u2019 state law \u2018beyond what a fair reading required.\u2019\u201d39<\/a><\/sup>Id.<\/em> at 38 (quoting Bush v. Gore, 531 U.S. 98, 115 (2000) (Rehnquist, C.J., concurring)).<\/span> Second, the federal court could assess \u201cwhether the state court exceeded \u2018the limits of reasonable\u2019 interpretation of state law.\u201d40<\/a><\/sup>Id.<\/em> (quoting Bush<\/em>, 531 U.S. at 133 (Stevens, J., dissenting)).<\/span> Third, the federal court could ask \u201cwhether the state court reached a \u2018truly aberrant\u2019 interpretation of state law.\u201d41<\/a><\/sup>Id.<\/em> at 39 (quoting Brief for the United States as Amicus Curiae Supporting Respondents at 27, Moore<\/em>, 600 U.S. 1 (No. 21-1271)). <\/span><\/p>\n

In Justice Kavanaugh\u2019s view, these \u201cthree standards convey essentially the same point: Federal court review of a state court\u2019s interpretation of state law in a federal election case should be deferential, but deference is not abdication.\u201d42<\/a><\/sup>Id. <\/em>Justice Kavanaugh conceded that judges may reach different outcomes under each standard, but he doubted that \u201cthe precise formulation of the standard . . . would be the decisive factor\u201d in any divergence. Id.<\/em> at 39 n.1.<\/span> Nevertheless, Justice Kavanaugh stated that he would adopt the \u201cimpermissibly distorted\u201d standard, and he would apply it both to \u201cstate court interpretations of state statutes\u201d and to \u201cstate court interpretations of state constitutions.\u201d43<\/a><\/sup>Id.<\/em> at 39.<\/span> And in Moore<\/em> review, Justice Kavanaugh emphasized, a federal court \u201cnecessarily must examine the law of the State as it existed prior to the action of the [state] court.\u201d44<\/a><\/sup>Id.<\/em> (quoting Bush<\/em>, 531 U.S. at 114 (Rehnquist, C.J., concurring)) (alteration in original).<\/span><\/p>\n

Like the majority, Justice Kavanaugh declined to answer whether the North Carolina Supreme Court exceeded the ordinary bounds of judicial review, noting only that \u201cthe 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\u201d in the future.45<\/a><\/sup>Id.<\/em> at 40.<\/span><\/p>\n

B. The Fears About the Moore Dicta and ISLT-lite<\/em><\/p>\n

Justice Clarence Thomas struck first in critiquing the Moore<\/em> dicta. Writing in dissent, Justice Thomas observed that the Moore<\/em> dicta \u201copen[ed] a new field for Bush<\/em>-style controversies over state election law\u2014and a far more uncertain one.\u201d46<\/a><\/sup>Id.<\/em> at 64. Justice Neil Gorsuch joined Justice Thomas\u2019s dissenting opinion in full, and Justice Alito joined Justice Thomas\u2019s dissent with respect to a different part.<\/span> Criticizing the majority for not describing how federal courts should engage in Moore<\/em> review, Justice Thomas listed a series of fundamental unanswered questions.47<\/a><\/sup>Id.<\/em> at 65.<\/span> At bottom, Justice Thomas fretted that the Moore<\/em> dicta would \u201cinvest[] potentially large swaths of state constitutional law with the character of a federal question not amenable to meaningful or principled adjudication by federal courts.\u201d48<\/a><\/sup>Id.<\/em><\/span> Moreover, in Justice Thomas\u2019s view, even if the federal courts\u2019 standard of review is deferential, this \u201cfederalization of state constitutions\u201d will swell federal-court dockets and\u2014at least in some cases\u2014plunge federal courts into \u201cquickly evolving, politically charged controversies.\u201d49<\/a><\/sup>Id.<\/em> Of course, one might observe that Justice Thomas\u2019s belief\u2014that \u201cthe people of a State\u201d lack the power to \u201cplace state-constitutional limits on the times, places, and manners of holding congressional elections that \u2018the Legislature\u2019 of the State has the power to prescribe\u201d under the Elections Clause\u2014would also thrust federal courts into politically charged controversies. See id.<\/em> at 56. After all, if the Moore<\/em> 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\u2019s prerogative to create state election laws. See id.<\/em> at 58\u201359. For a further discussion touching on Justice Thomas\u2019s concerns about Moore<\/em> review, see infra <\/em>note 129 and accompanying text.<\/span><\/p>\n

Legal scholars also worry about the Moore<\/em> dicta, positing two primary reasons for concern.<\/p>\n

1. Increasing Federal Judicial Involvement in State Election Law Cases<\/em><\/p>\n

Scholars predict that the Moore<\/em> dicta will expand federal courts\u2019 jurisdiction over state election law claims where federal jurisdiction may have not otherwise existed.50<\/a><\/sup>See supra<\/em> note 15 and accompanying text.<\/span> As Professor Bruce Ledewitz explains, \u201cbad\u201d state court decisions are not reviewable by federal courts merely on account of their erroneousness.51<\/a><\/sup>See<\/em> Ledewitz, supra<\/em> note 12, at 332.<\/span> Rather, \u201c[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.\u201d52<\/a><\/sup>Id.<\/em><\/span> After all, when a state court decides a case on an \u201cindependent and adequate state ground,\u201d53<\/a><\/sup>Michigan v. Long, 463 U.S. 1032, 1071 (1983).<\/span> the Supreme Court does \u201cnot undertake to review the decision.\u201d54<\/a><\/sup>Id.<\/em> at 1041.<\/span> But according to the Moore<\/em> dicta, because \u201cthe Elections Clause names the \u2018Legislature\u2019 and not state courts as the appropriate policy maker in regulating federal elections,\u201d there is a \u201cfederal issue present when a state court interprets its state constitution [or statutes] in terms of state election law in a federal election.\u201d55<\/a><\/sup>Ledewitz, supra<\/em> note 12, at 332. <\/span> And \u201c[i]f a state court is substituting its own policy . . . preferences for those of the state legislature, it transgresses that federal interest.\u201d56<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Professor Robert Williams concurs with Professor Ledewitz, noting that\u2014in light of the Moore <\/em>dicta\u2014\u201cstate court decisions interpreting state constitutions [or statutes] in federal election cases will no longer constitute \u2018adequate and independent state grounds\u2019 insulating them from SCOTUS review.\u201d57<\/a><\/sup>Williams, supra<\/em> note 12, at 1623 (quoting Michigan<\/em>, 463 U.S. at 1042).<\/span> Rather, according to the Moore<\/em> dicta, \u201cthe Elections Clause . . . creat[es] a possible federal question,\u201d which allows federal court \u201cjurisdiction to decide if state courts \u2018transgress[ed] the ordinary bounds of judicial review.\u2019\u201d58<\/a><\/sup>Id.<\/em> (quoting Moore v. Harper, 600 U.S. 1, 36 (2023)); see <\/em>U.S. Const.<\/span> art. III, \u00a7 2, cl. 1 (authorizing jurisdiction over cases arising under federal law); 28 U.S.C. \u00a7 1331 (conferring jurisdiction over federal question cases). <\/span><\/p>\n

The fact that federal courts will have jurisdiction to engage in Moore<\/em> review is disconcerting,59<\/a><\/sup>Professor Ledewitz argues that most, if not all, Moore<\/em> review will occur in the Supreme Court on appeal from a state supreme court. See<\/em> Ledewitz, supra<\/em> note 12, at 341\u201343. After all, a losing party in a state court cannot appeal that decision to a lower federal court. See id. <\/em>at 341 (citing Adam McLain, The <\/em>Rooker–<\/em>Feldman Doctrine: Toward a Workable Role<\/em>, 149 U. Pa. L. Rev.<\/span> 1555, 1590 n.213 (2001)). Moreover, even if a plaintiff seeks Moore<\/em> review in a federal court to challenge a state supreme court\u2019s prior interpretation of a state election law, the federal question might not arise on the face of the well-pleaded complaint. See id <\/em>at 342.<\/em> One could imagine, however, a federal district court engaging in Moore<\/em> review in several contexts. For example, a federal district court might be asked to engage in Moore<\/em> review while exercising either diversity or supplemental jurisdiction. See<\/em> 28 U.S.C. \u00a7\u00a7 1332, 1367. Or a plaintiff might ask a federal court to engage in Moore<\/em> review to enjoin state officers from implementing a state court\u2019s interpretation of a state law. See Ex parte Young<\/em>, 209 U.S. 123 (1908) (holding that government officials enforcing unconstitutional laws can be sued individually for injunctive relief). Other pathways might also exist.<\/span> regardless of how federal courts actually engage in Moore <\/em>review. The volume of cases in which federal courts are asked to engage in Moore<\/em> 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\u2014and now, because of the Moore <\/em>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.<\/p>\n

2. Arrogating Power to Federal Courts at the Expense of State Courts<\/em><\/p>\n

Scholars also fear how federal courts will engage in Moore<\/em> review. The Moore<\/em> dicta itself provides little guidance. After all, the Moore<\/em> Court\u2019s warning\u2014that \u201cstate courts may not transgress the ordinary bounds of judicial review\u201d60<\/a><\/sup>Maggio & Buschi, supra<\/em> note 12, at 163 (quoting Moore<\/em>, 600 U.S. at 36).<\/span>\u2014\u201cis not entirely clear,\u201d given that the Court \u201crefused to spell out a test or illustrate [its] point by providing examples.\u201d61<\/a><\/sup>Id. <\/em>These scholars observe that the Moore<\/em> dicta may have been intentionally ambiguous. See id.<\/em> (\u201c[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.\u201d). <\/span> Justice Kavanaugh\u2019s concurrence provides little further clarity, echoing that \u201cthis Court need not, and ultimately does not, adopt any specific standard\u201d for Moore<\/em> review.62<\/a><\/sup>Moore<\/em>, 600 U.S. at 39 (Kavanaugh, J., concurring).<\/span> Rather, Justice Kavanaugh predicted that the Court \u201cshould and presumably will distill that general principle into a more specific standard.\u201d63<\/a><\/sup>Id.<\/em> at 40.<\/span> Justice Kavanaugh would have adopted a standard of review that asks \u201cwhether the state court \u2018impermissibly distorted\u2019 state law \u2018beyond what a fair reading required.\u2019\u201d64<\/a><\/sup>Id.<\/em> at 38 (quoting Bush v. Gore, 531 U.S. 98, 115 (2000) (Rehnquist, C.J., concurring)).<\/span> But whether the Court will adopt that standard\u2014and how that standard would itself be operationalized\u2014remains unclear.<\/p>\n

Due to the Moore<\/em> Court\u2019s ambiguous guidance regarding how Moore<\/em> review should be conducted, it is plausible that \u201cfederal 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.\u201d65<\/a><\/sup>Mate, supra<\/em> note 12, at 862; see generally id.<\/em> at 857\u201362 (collecting scholarship discussing how federal courts might engage in Moore<\/em> review).<\/span> Three of the potential consequences of this undefined, boundaryless Moore<\/em> review are worth fleshing out in detail.<\/p>\n

First, some scholars worry that federal courts will utilize Moore<\/em> review to impose particular interpretative methodologies onto state courts.66<\/a><\/sup>Id.<\/em> at 860\u201361.<\/span> For example, Professors Leah Litman and Kate Shaw explain how the Supreme Court (or lower federal courts) could invoke Moore<\/em> review to \u201cimpose 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.\u201d67<\/a><\/sup>Litman & Shaw, supra<\/em> note 12, at 893; see also<\/em> Michael Weingartner, Textualism and Anti-Novelty Under<\/em> Moore v. Harper, Fordham L. Voting Rts. & Democracy Project<\/span> (Aug. 9, 2023), https:\/\/fordhamdemocracyproject.com\/2023\/08\/09\/textualism-and-anti-novelty-under-moore-v-harper-2\/ [https:\/\/perma.cc\/XCY4-VC4D] (\u201c[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 \u2018ordinary\u2019 judicial review.\u201d).<\/span> Moore<\/em> review thus \u201cprovide[s] an avenue for Justices to characterize readings of state law with which they disagree as not fair readings . . . and accordingly unconstitutional.\u201d68<\/a><\/sup>Litman & Shaw, supra <\/em>note 12, at 894.<\/span><\/p>\n

Second, some scholars\u2014such as Professor Richard Pildes\u2014note that Moore<\/em> review might chill state courts from broadly construing open-ended state constitutional principles.69<\/a><\/sup>See<\/em> Hearing on<\/em> The Independent State Legislature Theory and its Potential to Disrupt our Democracy<\/em> Before the H. Comm. On H. Admin.<\/em>, 117th Cong. 7 (2022) (statement of Richard Pildes, Professor of Constitutional Law, New York University School of Law).<\/span> Under this view, state courts might be able to continue applying specific and substantive state constitutional guarantees.70<\/a><\/sup>Id. <\/em>at 7.<\/em><\/span> But state courts might be less able to fully apply open-ended state constitutional guarantees, such as the right to free and fair elections.71<\/a><\/sup>Id.<\/em>; accord <\/em>Ned Foley, Moore v. Harper & The Need For Clarity<\/em>, Election L. Blog<\/span> (June 28, 2023), https:\/\/electionlawblog.org\/?p=137143 [https:\/\/perma.cc\/FZ4D-5KAH] (arguing that state courts should not \u201crewrite unambiguous state statutes . . . based on nothing more than nonspecific phrases in a state constitution,\u201d implying that state courts should interpret open-ended state constitutional guarantees narrowly).<\/span> Professor Pildes\u2019s view thus accords with that of Professors Litman and Shaw: federal courts engaging in Moore<\/em> review might be more likely to affirm state courts\u2019 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.72<\/a><\/sup>See supra<\/em> notes 67\u201371 and accompanying text.<\/span><\/p>\n

Third, some scholars anticipate that state courts will have to jump through additional hoops to avoid reversal during a future Moore<\/em> review. For example, Professor Derek Muller believes that state courts will have to \u201cexplain how their decisions naturally follow from previous precedent and remain within the heartland of ordinary judicial review.\u201d73<\/a><\/sup>Derek Muller, Moore v. Harper Vindicates Rehnquist\u2019s Opinion in<\/em> Bush v. Gore, Election L. Blog<\/span> (June 27, 2023), https:\/\/electionlawblog.org\/?p=137104 [https:\/\/perma.cc\/4KCK-DL9J].<\/span> Relatedly, Professor Ned Foley thinks that the Moore<\/em> dicta serves as a warning to state courts, urging them to hesitate before striking down state legislative enactments.74<\/a><\/sup>See<\/em> Foley, supra<\/em> note 71 (arguing that the Moore<\/em> dicta was at least partially aimed at the Pennsylvania Supreme Court, which in a 2020 opinion \u201cjudicial[ly] alter[ed] . . . an unambiguous state legislative rule, based on nothing more than a vague provision of a state constitution.\u201d).<\/span> In Professor Foley\u2019s view, perhaps the chilling effect produced by the Moore<\/em> dicta is more significant than the standard by which Moore<\/em> review is actually conducted.<\/p>\n

All of these scholars agree that Moore<\/em> review will constrain state court interpretations of state election law\u2014a domain that, before Moore<\/em>, was generally left to state courts.75<\/a><\/sup>Other federal constitutional provisions, like the Fourteenth Amendment, have long allowed federal courts to review state election laws. Moore<\/em> now allows federal review when no other constitutional violation is alleged.<\/span> Therefore, Moore<\/em> review will necessarily affect the balance of power between the federal and state judiciaries. To minimize the degree to which Moore<\/em> review detrimentally alters this balance of power, it is vital to explore how federal courts should engage in Moore<\/em> review.<\/p>\n

III. The Ambiguity Regarding How Federal Courts Should Engage in Moore<\/em> Review
<\/span>As Part II described, scholars worry that federal courts could use Moore<\/em> 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<\/em> review. This Part surveys this dearth of guidance, before Part IV proposes a two-step inquiry.<\/p>\n

First, although the Moore<\/em> Court contextualized Moore<\/em> review by referencing other legal areas in which federal courts must \u201censure that state court interpretations of [state] law do not evade federal law,\u201d76<\/a><\/sup>Moore v. Harper, 600 U.S. 1, 34 (2023).<\/span> the Court\u2019s examples provide little insight into how federal courts should engage in Moore<\/em> review. Second, although some scholars have begun to ponder how federal courts should engage in Moore<\/em> review, their proposals do not provide sufficient guidance either to a federal court that is determining how to engage in Moore<\/em> review or to a state court that is striving to stay within the ordinary bounds of judicial review.<\/p>\n

A. The Unhelpfulness of Moore\u2019s Discussion About Federal Court Review of State Court Decisions Concerning State Law in Other Areas<\/em><\/p>\n

Federal courts ordinarily do not review state court decisions about state laws.77<\/a><\/sup>See supra<\/em> note 15 and accompanying text. <\/span> But as the Moore<\/em> Court explained, there are exceptions.78<\/a><\/sup>See Moore<\/em>, 600 U.S. at 34\u201335 (discussing implication of questions of state law in cases involving property, contracts, and the adequate and independent state grounds doctrine). <\/span> In these \u201cother areas\u201d of the law, where \u201cthe exercise of federal authority or the vindication of federal rights implicates questions of state law,\u201d federal courts \u201chave an obligation to ensure that state court interpretations of that law do not evade federal law.\u201d79<\/a><\/sup>Id.<\/em> at 34.<\/span> For example, although state law defines property rights, \u201c[s]tates \u2018may not sidestep the Takings Clause by disavowing traditional property interests.\u2019\u201d80<\/a><\/sup>Id. <\/em>at 35 (quoting Phillips v. Wash. Legal Found., 524 U.S. 156, 164 (1998)).<\/span> The Moore<\/em> Court noted that a \u201csimilar principle applies with respect to the Contracts Clause\u201d because, while federal courts should give deference to state courts on matters of state contract law, federal courts \u201care bound to decide for [them]selves whether a contract was made.\u201d81<\/a><\/sup>Id.<\/em> (quoting Indiana ex rel. <\/em>Anderson v. Brand, 303 U.S. 95, 100 (1938)).<\/span> Finally, the Moore<\/em> Court stated that, in \u201c[c]ases raising the question whether adequate and independent grounds exist to support a state court judgment,\u201d federal courts should \u201cconsider[] whether a state court opinion below adopted novel reasoning to stifle the \u2018vindication in state courts of . . . federal constitutional rights.\u2019\u201d82<\/a><\/sup>Id.<\/em> (quoting NAACP v. Alabama ex rel.<\/em> Patterson, 357 U.S. 449, 457\u201358 (1958) (alteration in original)). Professor Michael Klarman observes that NAACP <\/em>is a bad example because the \u201cstate court[] had manifested, beyond a shadow of a doubt, the willingness to defy federal law.\u201d Michael J. Klarman, Bush v. Gore Through the Lens of Constitutional History<\/em>, 89 Cal. L. Rev.<\/span> 1721, 1738 (2001).<\/span> The Moore<\/em> Court concluded that, in each of these areas, federal courts should be \u201cmindful of the general rule of accepting state court interpretations of state law,\u201d but they must \u201ctemper[] such deference when required by [their] duty to safeguard limits imposed by the Federal Constitution.\u201d83<\/a><\/sup>Moore<\/em>, 600 U.S. at 35; see also<\/em> Bush v. Gore, 531 U.S. 98, 114 (2000) (Rehnquist, C.J., concurring) (\u201cThough 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.\u201d); Henry P. Monaghan, Supreme Court Review of State-Court Determinations of State Law in Constitutional Cases<\/em>, 103 Colum. L. Rev.<\/span> 1919, 1964 (2003) (\u201cOur 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.\u201d).<\/span><\/p>\n

For two reasons, the Supreme Court\u2019s jurisprudence in these areas fails to shine light on how federal courts should engage in Moore<\/em> review, wherein federal courts must determine if state court interpretations of state election laws \u201cevade\u201d the limits imposed by the Elections Clause.84<\/a><\/sup>Moore<\/em>, 600 U.S. at 34.<\/span><\/p>\n

First, these examples of other areas (in which federal courts review state court decisions concerning state law) are unhelpful because the Supreme Court \u201chas not embraced a consistent approach to reviewing state law issues embedded in questions of federal entitlement.\u201d85<\/a><\/sup>Fallon, Jr. et al.<\/span>, supra<\/em> note 15, at 523.<\/span> Rather, the Supreme Court has evinced \u201ca wide range of attitudes regarding the degree of deference to be accorded to the determination of the state court.\u201d86<\/a><\/sup>Alfred Hill, The Inadequate State Ground<\/em>, 65 Colum. L. Rev.<\/span> 943, 969 (1965).<\/span> 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 \u201cindependent judgment\u201d and engaging in \u201cmanifest error\u201d review,87<\/a><\/sup>Id.<\/em> <\/span> and Professor Henry Monaghan notes that the Court oscillates between reviewing the state court decision de novo and giving either Skidmore<\/em> or Chevron<\/em> deference.88<\/a><\/sup>See<\/em> Monaghan, supra<\/em> 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<\/em> Fallon, Jr. et al.<\/span>, supra<\/em> note 15, at 523 (\u201cSometimes the Court has engaged in de novo review, sometimes settled for limited review, and sometimes deferred altogether to the state court determination.\u201d).<\/span><\/p>\n

Second and more fundamentally, in each of these other areas, the state law question is antecedent to a federal entitlement.89<\/a><\/sup>See, e.g.<\/em>, U.S. Const.<\/span> amend. V. <\/span> For example, the federal entitlement protected by the Takings Clause\u2014to \u201cjust compensation\u201d for \u201cproperty\u2026taken\u201d by the government90<\/a><\/sup>Id.<\/em><\/span>\u2014is triggered only when the \u201ctaken\u201d thing is defined as \u201cproperty\u201d under state law. Therefore, a court must answer whether the \u201ctaken\u201d thing is defined as \u201cproperty\u201d under state law before<\/em> the court can determine whether the federal entitlement protected by the Takings Clause is implicated.91<\/a><\/sup>See <\/em>Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972) (\u201cProperty 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.\u201d); Tyler v. Hennepin County, Minnesota, 598 U.S. 631, 638 (2023) (\u201cThe 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\u2026.So we also look to \u2018traditional property law principles,\u2019 plus historical practice and this Court\u2019s precedents.\u201d) (internal citations and quotation marks omitted).<\/span><\/p>\n

In these other areas where the state law question is antecedent to a federal entitlement, federal court review is justified because state courts \u201ccannot be fully trusted to apply state law consistent with the vindication of such a federal entitlement.\u201d92<\/a><\/sup>Vikram D. Amar, The <\/em>Moore the Merrier: How <\/em>Moore v. Harper\u2019s Complete Repudiation of the Independent State Legislature Theory Is Happy News for the Court, the Country, and Commentators<\/em>, 2023 Cato Sup. Ct. Rev.<\/span> 275, 290\u201391 (2022\u00ac\u20132023). 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,<\/em> e.g.<\/em>, Alden v. Maine, 527 U.S. 706, 755 (1999) (\u201cWe are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States.\u201d).<\/span> After all, \u201cthe federal right in question runs against the state itself such that all state entities\u2014including state courts\u2014might be tempted to warp state law to protect the state fisc.\u201d93<\/a><\/sup>Amar, supra<\/em> note 92, at 291. To provide a concrete example in the context of the Takings Clause, a state court might construe the state\u2019s definition of \u201cproperty\u201d narrowly to avoid classifying a \u201ctaken\u201d thing as \u201cproperty\u201d\u2014thereby not triggering the state\u2019s obligation to provide \u201cjust compensation\u201d for the \u201ctaken\u201d thing. U.S. Const.<\/span> amend. V.<\/span><\/p>\n

But it is not evident what, if any, federal entitlement is protected by the Elections Clause, which could be vindicated via Moore<\/em> review. As Professor Vikram Amar notes, \u201c[u]nlike the Takings and Contracts Clause cases . . . the Elections Clause\u2014post-Moore<\/em>\u2014does 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.\u201d94<\/a><\/sup>Amar, supra<\/em> note 92, at 292.<\/span> After all, the only federal entitlement that the Elections Clause might possibly protect is the federal interest in ensuring that state \u201cLegislature[s]\u201d prescribe the \u201cTime, Places, and Manner of holding [federal] Elections.\u201d95<\/a><\/sup>U.S. Const<\/span>. art. I, \u00a7 4, cl. 1.<\/span> One can imagine how this federal entitlement could have bite, prohibiting any state actor\u2014except the state legislature\u2014from influencing state laws regarding federal elections. But the Moore<\/em> Court \u201cfundamentally reject[ed] the notion that \u2018Legislature\u2019 in Article I refers to any entity in particular,\u201d holding instead that state judicial review is entirely permissible under the Elections Clause.96<\/a><\/sup>Amar, supra<\/em> note 92, at 284 (citing Moore v. Harper, 600 U.S. 1, 22 (2023)).<\/span> Therefore, under Moore<\/em>, 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 \u201cthe right to have state courts comply with state law<\/em>.\u201d97<\/a><\/sup>Id.<\/em> at 285. Professor Amar then asserts that \u201c[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.\u201d Id.<\/em> at 292. Thus, in his view, \u201cfederal courts will necessarily defer to state-court understandings of state statutory and constitutional law meanings,\u201d so long as state courts \u201creasonably 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.\u201d Id.<\/em><\/span><\/p>\n

Thus, Moore<\/em> 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<\/em> federal entitlements to just compensation, contract enforcement, and due process, among others\u2014each of which could be evaded by state court decisions about state laws. Under Moore<\/em> 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\u2014which includes state judicial review\u2014functions normally.<\/p>\n

For both these reasons, the Moore<\/em> Court\u2019s citations to these other legal areas are of little utility. Federal courts\u2019 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<\/em> review. These other areas thus provide inapt analogies, providing little insight into how federal courts should engage in Moore<\/em> review.<\/p>\n

B. Initial Scholarly Views on How Federal Courts Should Engage in Moore Review<\/em><\/p>\n

Some scholars have sketched initial views on how federal courts should engage in Moore<\/em> 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<\/em> review or a state court stay within the ordinary bounds of judicial review. But these scholars\u2019 views are nevertheless quite helpful because I build on them in the proposal that I offer in Part IV. These scholars\u2019 viewpoints fall into three groups.<\/p>\n

In the first group, some scholars urge federal courts to engage in Moore<\/em> review only \u201cin the most extreme scenarios, where [the state court has] brought about a result that clearly usurped a state legislature\u2019s policymaking role or strayed from ordinary judicial decision-making in the state.\u201d98<\/a><\/sup>Blake L. Weiman, Moore to Come: The Impending Independent State Legislature Departure Standard<\/em>, 26 N.Y.U. J. Legis. & Pub. Pol\u2019y<\/span> 517, 529 (2024); see also<\/em> Scott L. Kafker & Simon D. Jacobs, The Supreme Court Summons the Ghosts of <\/em>Bush v. Gore: How <\/em>Moore v. Harper Haunts State and Federal Constitutional Interpretation of Election Laws<\/em>, 59 Wake Forest L. Rev.<\/span> 61, 63\u201364 (2024) (\u201c[T]he original and best understanding of the Elections Clause provides for a very limited form of federal oversight\u2026.[The Elections Clause] only prevents state courts from performing the function of state legislatures.\u201d).<\/span> But these scholars do not agree about when a scenario is sufficiently extreme.<\/p>\n

Blake Weiman, for example, acknowledges that \u201cwhat represents an extreme in this context is largely unclear.\u201d99<\/a><\/sup>Weiman, supra<\/em> note 98, at 529.<\/span> In light of this ambiguity, Weiman urges federal courts to evaluate two considerations: \u201c(a) the sufficiency of the state court decision\u2019s analysis and (b) the nature of the state constitutional provision(s) at issue.\u201d100<\/a><\/sup>Id.<\/em> at 527.<\/span> These considerations boil down to the federal court\u2019s assessment of whether the state court\u2019s rationale is consonant with \u201cthe state\u2019s legal practice and tradition.\u201d101<\/a><\/sup>Id.<\/em><\/span> Moreover, the sufficiency of the state court\u2019s rationale may depend on whether the state constitutional provision is broad or specific.102<\/a><\/sup>Id.<\/em><\/span> In thinking about how federal courts will evaluate the state court\u2019s rationale, Weiman echoes the views of Professors Litman, Shaw, and Pildes.103<\/a><\/sup>See supra<\/em> notes 67\u201371 and accompanying text.<\/span> The \u201csufficiency\u201d of the state court\u2019s analysis will depend on the degree to which the state court\u2019s interpretation accords with federal modes of constitutional interpretation, especially in regard to vague state constitutional provisions.104<\/a><\/sup>Weiman, supra <\/em>note 98, at 555.<\/span> Weiman\u2019s view thus provides little insight into how<\/em> federal courts should assess the sufficiency of a state court\u2019s interpretation. In other words, Weiman does not describe what analytical tools a federal court should employ to determine if a state court\u2019s rationale is sufficient to survive Moore<\/em> review.<\/p>\n

Justice Scott Kafker (of the Massachusetts Supreme Judicial Court) and Simon Jacobs agree that federal courts should engage in Moore<\/em> review only in extreme scenarios, positing that \u201ca 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.\u201d105<\/a><\/sup>Kafker & Jacobs, supra<\/em> note 98, at 120.<\/span> 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 \u201cstate judicial overreaching . . . is different in kind, not degree, from interpreting the meaning of unclear election provisions.\u201d106<\/a><\/sup>Id.<\/em><\/span><\/p>\n

In the second group, Professor Laura Fitzgerald proposes that\u2014because of the Supreme Court\u2019s \u201cpresumption that state courts can be trusted to self-enforce their supremacy clause obligations when applying state law\u201d\u2014a federal court should \u201creverse 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.\u201d107<\/a><\/sup>Laura S. Fitzgerald, Suspecting the States: Supreme Court Review of State-Court State-Law Judgments<\/em>, 101 Mich. L. Rev.<\/span> 80, 89 (2002) (citing Alden v. Maine, 527 U.S. 706, 755 (1999)). Professor Fitzgerald wrote in the aftermath of Bush<\/em>, long before Moore<\/em> was decided\u2014but her viewpoint applies effectively to Moore<\/em>.<\/span> This proposition supports the notion that a federal court engaging in Moore<\/em> review should orient its inquiry toward uncovering whether the state court demonstrated bias. And in Professor Fitzgerald\u2019s view, unless the federal court can specifically articulate and substantiate its suspicion of the state court, the federal court cannot overturn the state court\u2019s decision about state election laws.108<\/a><\/sup>Id.<\/em> at 177\u201378.<\/span><\/p>\n

Professor Fitzgerald\u2019s proposal could readily be applied in many of the other areas in which federal courts review state court decisions regarding state law.109<\/a><\/sup>See supra<\/em> notes 77\u201383 and accompanying text.<\/span> But unlike the federal constitutional guarantees that create federal entitlements in those other areas, the Elections Clause does not create any federal entitlement beyond \u201cthe right to have state courts comply with state law.\u201d110<\/a><\/sup>See<\/em> Amar, supra<\/em> note 92, at 285 (emphasis omitted); see generally supra<\/em> notes 94\u201397 and accompanying text.<\/span> Therefore it is not clear how a federal court could determine that a state court \u201cdeliberately manipulated state [election] law to thwart\u201d this empty entitlement,111<\/a><\/sup>Fitzgerald, supra<\/em> note 107, at 89. <\/span> unless the state court\u2019s decision also thwarts other federal constitutional provisions or statutes.112<\/a><\/sup>For 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<\/em> review and challenge the underlying law under the First and Fourteenth Amendments. See, e.g.<\/em>, Anderson v. Celebrezze, 460 U.S. 780 (1983) (holding that Ohio\u2019s requirement for independent presidential candidates to file in March to appear on the November ballot imposed an unconstitutional burden on voters\u2019 and supporters\u2019 rights); Burdick v. Takushi, 504 U.S. 428 (1992) (holding that Hawaii\u2019s write-in voting ban did not unreasonably violate citizens\u2019 First and Fourteenth Amendment rights); accord<\/em> Amar, supra<\/em> note 92, at 295 (\u201cA 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<\/em> government purpose), much less the heightened scrutiny that is implicated on account of the fundamental \u2018right to vote\u2019 in any election, state or federal.\u201d).<\/span> 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.113<\/a><\/sup>See <\/em>Amar, supra<\/em> note 97 and accompanying text.<\/span> Professor Fitzgerald\u2019s view thus does not provide specific guidance about how federal courts should engage in Moore<\/em> review, at least where no other violations of federal law are present.<\/p>\n

In the third group, Michael Weingartner proposes a different framework for how federal courts should engage in Moore<\/em> review.114<\/a><\/sup>See<\/em> Weingartner, supra<\/em> note 67.<\/span> He writes that federal courts engaging in Moore<\/em> review should \u201cfocus . . . on understanding and maintaining the type of interpretation that state courts ordinarily do, and have done for centuries.\u201d115<\/a><\/sup>Id.<\/em><\/span> That way, federal courts could avoid \u201cintroduc[ing] new and potentially disruptive principles like textualism or an anti-novelty bias that lack any basis in state law or practice.\u201d116<\/a><\/sup>Id.<\/em><\/span> Weingartner does not describe, however, how federal courts engaging in Moore<\/em> review should go about analyzing state court modes of interpretation.<\/p>\n

These three groups of viewpoints do not provide specific instructions to federal courts about how they should engage in Moore<\/em> 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<\/em> review should reverse state court decisions about state election laws only in rare or extreme situations,117<\/a><\/sup>See supra <\/em>notes 98 and 105 and accompanying text.<\/span> where the federal court can articulate and substantiate its belief that a state court deviated from its ordinary practices.118<\/a><\/sup>See supra<\/em> notes 101, 107\u2013108, and 115 and accompanying text.<\/span><\/p>\n

IV. A Proposal For How Federal Courts Should Engage in Moore<\/em> Review<\/span><\/p>\n

To ensure that federal courts do not apply Moore<\/em> 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<\/em> review. This proposal is intended to provide guidance both to federal courts seeking to engage in Moore<\/em> review and to state courts attempting to stay within the ordinary bounds of judicial review.<\/p>\n

1. Defining What Federal Entitlement Is Vindicated by Moore Review<\/em><\/p>\n

Before proposing how federal courts should engage in Moore<\/em> 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<\/em> 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<\/em> review is the \u201cright to have state courts comply with state law.\u201d119<\/a><\/sup>See<\/em> Amar, supra<\/em> note 92, at 285 (emphasis omitted).<\/span> In the abstract, this federal entitlement is tautological, but this entitlement takes on substance in light of Part III.B\u2019s lessons. The legal scholars\u2019 views surveyed in that section converge on a common principle: Moore<\/em> review should consider whether a state court\u2019s interpretation of a state election law adhered to the state court\u2019s ordinary methodology for statutory or constitutional interpretation.120<\/a><\/sup>See<\/em> Weingartner, supra<\/em> note 67 (arguing that Moore<\/em> review should \u201cfocus\u2026on understanding and maintaining the type of interpretation that state courts ordinarily do\u201d); Weiman, supra<\/em> note 98, at 527 (arguing that Moore<\/em> review should focus on \u201cwhether and to what extent the state court decision departs from the state\u2019s legal practice and tradition\u201d); Fitzgerald, supra<\/em> note 107, at 96 (arguing that federal courts should reverse state court decisions about state laws only when there is \u201csome concrete indication that the state court has deliberately manipulated state law\u201d\u2014perhaps by departing from its ordinary interpretive methodology\u2014\u201cto thwart federal law\u201d).<\/span> After all, a \u201crange of substantive and methodological diversity . . . characterizes state constitutions and their proper interpretation,\u201d and a state court may adopt a methodology that \u201cis more purposive, or structural and holistic, or precedent-based, or representation-reinforcing, or democracy-promoting, or canon-driven, than relentlessly textual.\u201d121<\/a><\/sup>Amar, supra<\/em> note 92, at 289 n.51.<\/span> Moore<\/em> review should account for state courts\u2019 myriad interpretive methodologies.<\/p>\n

For these reasons, I posit that the federal entitlement protected by the Elections Clause\u2014and which Moore<\/em> review should vindicate\u2014is the federal interest in ensuring that a state court does not unreasonably deviate from its ordinary interpretive methodology when it interprets state election laws.122<\/a><\/sup>Put another way, \u201cthe right to have state courts comply with state law<\/em>,\u201d Amar, supra<\/em> 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\u2019s view. See<\/em> Weingartner, supra<\/em> note 67.<\/span> In other words, the Elections Clause requires state courts to adhere to methodological stare decisis in election-related cases,123<\/a><\/sup>J. Stephen Tagert, To <\/em>Erie or Not to <\/em>Erie: Do Federal Courts Follow State Statutory Interpretation Methodologies?<\/em>, 66 Duke L.J.<\/span> 211, 214 (2016) (\u201cMethodological stare decisis occurs when courts give precedential effect to judicial statements about methodology.\u201d).<\/span> or to sufficiently justify any deviation from their ordinary interpretive methodology.124<\/a><\/sup>See infra<\/em> Part IV.C.<\/span><\/p>\n

This proposition is supported by clues in Moore <\/em>itself. The Moore<\/em> dicta, though sparse, suggests that state courts should behave \u201cordinar[ily].\u201d125<\/a><\/sup>Moore v. Harper, 600 U.S. 1, 37 (2023) (stating that \u201cstate courts may not so exceed the bounds of ordinary judicial review,\u201d thereby implying that state courts violate these bounds when they do not act ordinarily).<\/span> It also suggested that there are \u201cbounds\u201d of possible interpretations that are reasonable\u2014not that there is a single best interpretation.126<\/a><\/sup>Id.<\/em><\/span> Further, in his concurrence, Justice Kavanaugh explained that \u201cin reviewing state court interpretations of state law, \u2018we necessarily must examine the law of the State as it existed prior to the action of the [state] court.\u2019\u201d127<\/a><\/sup>Id.<\/em> at 39 (Kavanaugh, J., concurring) (quoting Bush v. Gore, 531 U.S. 98, 114 (2000) (Rehnquist, C.J., concurring)).<\/span> That examination of pre-existing state law could refer to an inquiry into the state court\u2019s ordinary interpretive methodology, especially given that this review is \u201cdeferential.\u201d128<\/a><\/sup>Id.<\/em> <\/span> Finally, Justice Thomas\u2019s dissent raised several questions that intimate that Moore<\/em> review might require assessing a state court\u2019s methodological precedents.129<\/a><\/sup>Id.<\/em> at 65 (Thomas, J., dissenting) (\u201cWhat 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\u2014are federal courts to review state courts\u2019 treatment of their own precedents for some sort of abuse of discretion?\u201d) (emphasis omitted).<\/span> For these reasons, although the Moore<\/em> Court did not answer what Moore<\/em> review should entail, my proposition\u2014that the Elections Clause requires state courts to apply their ordinary interpretive methodologies or to sufficiently justify any deviation\u2014is not inconsistent with Moore<\/em> itself.<\/p>\n

2. Step 1: Did the State Court Adhere to Methodological Stare Decisis?<\/em><\/p>\n

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<\/em> review should inquire into whether the state court followed that requirement.<\/p>\n

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.130<\/a><\/sup>See, e.g.<\/em>, Biden v. Nebraska, 600 U.S. 477, 507 (2023) (noting that the Court \u201cemployed the traditional tools of judicial decisionmaking\u201d and that \u201c[r]easonable minds may disagree with [its] analysis\u201d). But see<\/em> Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024) (\u201c[C]ourts use every tool at their disposal to determine the best reading<\/em> of the statute . . . .\u201d) (emphasis added).<\/span> Therefore, a federal court engaging in Moore<\/em> review should answer merely whether the state court could have reasonably<\/em> 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.131<\/a><\/sup>See infra<\/em> Part IV.C.<\/span><\/p>\n

Although the federal judiciary lacks an entrenched commitment to methodological stare decisis,132<\/a><\/sup>See<\/em> Recent Case<\/em>, FTC v. Credit Bureau Center, LLC, 133 Harv. L. Rev.<\/span> 1444, 1448 (2020) (\u201cWhile substantive stare decisis is entrenched in our legal system, federal courts generally reject methodological stare decisis.\u201d); see also<\/em> Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology As \u201cLaw\u201d and the <\/em>Erie Doctrine<\/em>, 120 Yale L.J.<\/span> 1898, 1924 (2011) (\u201c[T]he federal courts are wholly inconsistent about whether state or federal methodology applies to state statutes.\u201d). But see<\/em> Aaron-Andrew P. Bruhl, Interpreting State Statutes in Federal Court<\/em>, 98 Notre Dame L. Rev.<\/span> 61, 79 (2022) (\u201c[T]he federal courts generally understand themselves to be bound to apply state interpretive methods to state statutes.\u201d).<\/span> 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<\/em>,133<\/a><\/sup>Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). <\/span> Klaxon<\/em>,134<\/a><\/sup>Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941).<\/span> and\u2014until recently\u2014Chevron<\/em>.135<\/a><\/sup>Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), overruled by<\/em> Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).<\/span> In each of these regimes, federal courts step outside of their normal role as independent adjudicators. In cases implicating Erie<\/em> and Klaxon<\/em>, a federal court must determine how a state court would decide a legal question.136<\/a><\/sup>The Erie<\/em> line of cases \u201crequire[s] federal court adherence to state \u2018meta\u2019 principles of law, as well as state definitions of rights and duties.\u201d Michael C. Dorf, Prediction and the Rule of Law<\/em>, 42 UCLA L. Rev.<\/span> 651, 713 (1995). Several scholars contend that Erie<\/em>\u2019s logic compels federal courts to adhere to states\u2019 interpretive methodologies when federal courts interpret state statutes. See, e.g.<\/em>, Gluck, supra <\/em>note 132, at 1991 (\u201cWhen federal courts overlook state methodology and apply only federal interpretive principles, they are not engaging with state practice.\u201d); Tagert, supra<\/em> note 123, at 217 (\u201c[B]ecause statutory interpretation should be considered substantive law, federal courts should use Erie<\/em> for statutory interpretation so that both federal and state courts apply the same legal rules to state statutes no matter the venue.\u201d). Similarly, Klaxon<\/em> requires federal courts sitting in diversity to \u201capply the choice-of-law rules of the state in which the federal court sits.\u201d Zachary B. Pohlman, State Statutory Interpretation and Horizontal Choice of Law<\/em>, 70 U. Kan. L. Rev.<\/span> 505, 557 (2022) (\u201cIf the state\u2019s choice-of-law regime would have it apply, say, a sister state\u2019s interpretive methodology, the federal court . . . need[s] to interpret the statute according to that state\u2019s methodology.\u201d).<\/span> And in cases implicating Chevron<\/em>, a federal court (formerly) determined if an agency\u2019s interpretation of a statutory ambiguity was reasonable.137<\/a><\/sup>Chevron<\/em> was \u201ca canon of interpretation that tells courts when to defer to the extrinsic evidence of agency statutory interpretations.\u201d Abbe R. Gluck, Statutory Interpretation Methodology As \u201cLaw\u201d: Oregon’s Path-Breaking Interpretive Framework and Its Lessons for the Nation<\/em>, 47 Willamette L. Rev.<\/span> 539, 561 (2011).<\/span> When undertaking Moore<\/em> review, a federal court must analogously determine whether a state court followed its methodological precedents for constitutional or statutory interpretation.138<\/a><\/sup>While 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<\/em> review. See, e.g.<\/em>, Litman & Shaw, supra<\/em> note 12, at 900.<\/span><\/p>\n

A federal court has several pathways to discover a state court\u2019s ordinary interpretive methodology. First, the state court decision subject to Moore<\/em> review might itself explain the state court\u2019s interpretive methodology, articulating either how that interpretation follows from the state court\u2019s methodological precedents or why the state court is justified in \u201coverrul[ing] a proposition of interpretive methodology.\u201d139<\/a><\/sup>Aaron-Andrew P. Bruhl, Eager to Follow: Methodological Precedent in Statutory Interpretation<\/em>, 99 N.C. L. Rev.<\/span> 101, 148 (2020). Bruhl explains that, although a state court may \u201cbe more willing to overrule interpretive doctrines than substantive precedents\u201d on reliance-based grounds, one can still expect that state court \u201cto explain that stare decisis is relaxed, rather than to ignore the analysis completely.\u201d Id. <\/em>For a discussion about whether state courts can both overrule a methodological precedent and avoid reversal during Moore<\/em> review, see infra<\/em> Part IV.C.<\/span> Second, a previous decision from that state court might explain the state court\u2019s interpretive methodology.140<\/a><\/sup>See, e.g.<\/em>, Portland Gen. Elec. Co. v. Bureau of Lab. & Indus., 859 P.2d 1143, 1145\u201347 (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 \u201capplied . . . 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.\u201d Gluck, supra<\/em> note 137, at 546 (internal quotation marks omitted). <\/span> Third, even though some state courts lack an \u201cestablished methodology,\u201d141<\/a><\/sup>Bruhl, supra<\/em> note 132, at 97.<\/span> \u201cevery state legislature in the country has enacted legislation codifying certain canons of construction that state courts are expected to follow when interpreting statutes.\u201d142<\/a><\/sup>Anita S. Krishnakumar, Reconsidering Substantive Canons<\/em>, 84 U. Chi. L. Rev.<\/span> 825, 896 (2017); see<\/em> generally<\/em> Jacob Scott, Codified Canons and the Common Law of Interpretation<\/em>, 98 Geo. L.J.<\/span> 341 (2010). Importantly, however, Professor Abbe Gluck observes that state courts sometimes reject \u201crules of interpretation that have been legislated by statute,\u201d adhering to their own preferred interpretive methodologies. Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism<\/em>, 119 Yale L.J.<\/span> 1750, 1824 (2010). Whether the state court or legislature has the better of this conflict does not matter in Moore<\/em> review. The federal court\u2019s task is to determine whether the state court adhered to its ordinary interpretive methodology\u2014not whether that methodology complies with legislative directives. Of course, this conflict might complicate the preliminary question of what<\/em> constitutes the state court\u2019s ordinary interpretive methodology. <\/span> All of these sources might be useful to the federal court in ascertaining the state court\u2019s ordinary interpretive methodology\u2014and whether the state court adhered to it.<\/p>\n

3. Step 2: Was the Deviation from Methodological Stare Decisis Reasonable?<\/em><\/p>\n

In my view, Moore<\/em> review does not require reversal as soon as the federal court determines that the state court deviated from methodological stare decisis.143<\/a><\/sup>Throughout this Article, I use the term \u201creverse,\u201d but the proper action will depend on the case\u2019s posture. The Supreme Court could reverse a state court during Moore<\/em> review. But the term \u201creverse\u201d would not accurately describe, for example, a federal court order that enjoins state officials from enforcing a state court decision that failed Moore<\/em> review. See supra<\/em> note 59 (describing how Moore<\/em> review could arise in lower federal courts).<\/span> Rather, the federal court should next address whether the state court\u2019s deviation was reasonable.<\/p>\n

A reasonable deviation\u2014which would not warrant reversal during Moore<\/em> review\u2014could 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.144<\/a><\/sup>See<\/em> supra<\/em> note 139. A state court\u2019s decision to apply a new methodology might be especially common\u2014and thus perhaps less suspect\u2014in states that do not have well-established methodological precedents.<\/span> A state court\u2019s application of a new methodology might be presumptively suspect, but with sufficient explanation regarding the state court\u2019s justification for applying the new methodology,145<\/a><\/sup>See<\/em> Melissa Murray, The Symbiosis of Abortion and Precedent<\/em>, 134 Harv. L. Rev. 308<\/span>, 328 (2020) (explaining that courts apply \u201cprecedents on precedent\u201d to determine if stare decisis requires upholding a past precedent or not); Note, The Paradox of Precedent About Precedent<\/em>, 138 Harv. L. Rev.<\/span> 797, 798\u2013800 (2025) (describing precedents about precedent).<\/span> that action would likely fall within the \u201cordinary bounds of judicial review\u201d\u2014after all, creating, applying, and overturning precedent are core judicial functions.146<\/a><\/sup>Cf.<\/em> Weiman, supra<\/em> note 98, at 527 (positing that, in some circumstances, \u201cthe state court’s burden is higher to demonstrate the propriety of its decision as appropriately rooted in state law\u201d).<\/span> 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\u2019 interpretive methodologies in amber.147<\/a><\/sup>Cf., e.g.<\/em>, Alden v. Maine, 527 U.S. 706, 709 (1999) (\u201cFederalism requires that [the federal government] accord States the respect and dignity due them as residuary sovereigns and joint participants in the Nation\u2019s governance.\u201d).<\/span><\/p>\n

Second, state courts might apply a different interpretive methodology in election-related cases than they apply in other cases. For example, many states\u2019 interpretive methodologies include a judicially created or legislatively enacted \u201cdemocracy canon,\u201d which compels state courts to liberally construe election-related laws in favor of voting rights.148<\/a><\/sup>See generally <\/em>Richard L. Hasen, The Democracy Canon<\/em>, 62 Stan. L. Rev.<\/span> 69 (2009); Jessica Bulman-Pozen & Miriam Seifter, The Democracy Principle in State Constitutions<\/em>, 119 Mich. L. Rev.<\/span> 859, 908 (2021) (\u201cThe 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.\u201d).<\/span> 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\u2019s decision in light of the state court\u2019s election law-specific methodology, rather than its general interpretive methodology.<\/p>\n

Beyond these two considerations, there may be other reasons why a federal court engaging in Moore<\/em> 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<\/em> review is whether the state court\u2019s deviation was sufficiently reasonable.<\/p>\n

Of course, a state court\u2019s deviation from its methodological precedents in an election-related case might sometimes indicate that the state court \u201cmanipulated state law,\u201d149<\/a><\/sup>Fitzgerald, supra<\/em> 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<\/em> deviate from its ordinary interpretive methodology when it interprets state election laws. See supra<\/em> notes 122\u2013124 and accompanying text. An unreasonable or unexplained deviation from a state court\u2019s ordinary interpretive methodology would violate this federal entitlement.<\/span> thereby \u201ctransgress[ing] the ordinary bounds of judicial review.\u201d150<\/a><\/sup>Moore v. Harper, 600 U.S. 1, 36 (2023).<\/span> In evaluating whether a state court\u2019s 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,151<\/a><\/sup>See<\/em> supra<\/em> note 131 and accompanying text.<\/span> and whether the state court adequately explained why its \u201cprecedents on precedent\u201d justified the court in deviating from methodological stare decisis.152<\/a><\/sup>See supra<\/em> notes 144\u2013147 and accompanying text. <\/span> But in those cases where the federal court determines that the state court\u2019s deviation was unreasonable, the federal court is justified in reversing the state court decision.<\/p>\n

4. Applying Moore Review to Genser v. Butler County Board of Elections<\/em><\/p>\n

I conclude with an example of how a federal court should engage in Moore<\/em> review, applying my two-step proposal to review the aforementioned Genser <\/em>decision.153<\/a><\/sup>Genser v. Butler Cnty. Bd. of Elections, 325 A.3d 458 (Pa. 2024).<\/span> Genser<\/em> should easily survive Moore<\/em> review because the Pennsylvania court adhered to its methodological precedents.<\/p>\n

The question in Genser<\/em> 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.154<\/a><\/sup>Id.<\/em> at 461.<\/span> In a previous case, the Pennsylvania court had held that the \u201cfailure to follow the mandatory requirements for voting by mail\u201d\u2014which requires a Secrecy Envelope\u2014\u201cnullifies the attempt to vote by mail and the ballot.\u201d155<\/a><\/sup>Id.<\/em> at 479 (citing Pa. Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020)).<\/span> As such, the Genser<\/em> court held that a \u201cballot lacking a Secrecy Envelope is void.\u201d156<\/a><\/sup>Id.<\/em> at 480.<\/span><\/p>\n

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 \u201cdid not cast any other ballot,\u201d prohibited the Board from counting this voter\u2019s provisional ballot.157<\/a><\/sup>Id.<\/em> (quoting 25 Pa. Stat. Ann. \u00a7 3050(a.4)(5)(i)).<\/span> The Genser<\/em> court described this question as \u201ca question of statutory interpretation.\u201d158<\/a><\/sup>Id.<\/em> at 475.<\/span> The court explained that its ordinary interpretive methodology is to use the text as its \u201cprimary guide\u201d to \u201cascertaining the General Assembly\u2019s legislative intent,\u201d as required by Pennsylvania\u2019s Statutory Construction Act.159<\/a><\/sup>Id.<\/em> at 479.<\/span><\/p>\n

Applying this textualist interpretive methodology, the court followed the text, holding that because \u201cthe Secrecy Envelope was not used,\u201d \u201cno ballot was received.\u201d160<\/a><\/sup>Id.<\/em> at 481.<\/span> And because no ballot was received, \u201cthe Board could not refuse to count Electors\u2019 provisional ballots.\u201d161<\/a><\/sup>Id.<\/em><\/span><\/p>\n

The Pennsylvania court also noted its democracy-canon precedent, explaining that \u201c[t]he General Assembly wrote the Election Code with the purpose of enabling citizens to exercise their right to vote.\u201d162<\/a><\/sup>Id.<\/em> at 482 (citing In re<\/em> Luzerne Cnty. Return Bd., 290 A.2d 108, 109 (Pa. 1972)).<\/span> In the court\u2019s view, this democracy-promoting methodological precedent bolstered its textualist reading of the statute.163<\/a><\/sup>Id. <\/em>at 482\u201383.<\/span><\/p>\n

Because the Pennsylvania court applied its methodological precedents to arrive at its decision, if a federal court engages in Moore<\/em> review regarding Genser<\/em>, it should uphold the Pennsylvania court.<\/p>\n

V. Conclusion<\/span><\/p>\n

The dearth of guidance provided by the Moore<\/em> Court about how federal courts should engage in Moore<\/em> review creates the risk that federal courts will use Moore<\/em> 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<\/em> review. To vindicate the narrow federal entitlement protected by the Elections Clause, Moore<\/em> 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\u2014not 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<\/em> review has teeth, allowing the federal court to reverse the state court\u2019s decision.<\/p>\n

\n

[*]<\/a> 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<\/em> team for their diligent efforts in editing this piece. All views and mistakes are my own.<\/p>\n\n\n

\n
View PDF Version<\/a><\/div>\n<\/div>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

Connor J. Morgan[*] Abstract At the conclusion of the majority opinion in Moore v. Harper, cryptic dicta warned that federal […]<\/p>\n","protected":false},"author":204,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[47],"tags":[40],"class_list":["post-4286","post","type-post","status-publish","format-standard","hentry","category-print","tag-volume-62-2-summer-2025"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZQ7o-178","jetpack_sharing_enabled":true,"post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/posts\/4286","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/users\/204"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/comments?post=4286"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/posts\/4286\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/media?parent=4286"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/categories?post=4286"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/tags?post=4286"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}