by on By Bradley Silverman*
With voting underway and election rules being challenged in courts across the country, fears of another Bush v. Gore[1] are on the rise. As state courts and officials in Pennsylvania, North Carolina, Minnesota, Texas and elsewhere modify state election rules to accommodate the unprecedented challenges that COVID-19 has presented, some argue that their actions are unconstitutional.[2] Justice Amy Coney Barrett has not yet weighed in on the issue, and the remaining Justices appear to be evenly divided.[3] As an originalist matter, the Supreme Court should stay out of these cases. Indeed, no less an originalist than Justice Thomas has championed this understanding of the Constitution for over a quarter of a century.
The argument that the Constitution prevents state courts and officials from altering state election rules rests on two provisions. The Congressional Elections Clause says that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” subject only to congressional override.[4] The Presidential Elections Clause, meanwhile, says that “[e]ach State shall appoint” presidential electors “in such Manner as the Legislature thereof may direct.”[5] In Bush v. Palm Beach County Canvassing Board, the Supreme Court held that when state legislatures regulate presidential elections, they act “by virtue of a direct grant of authority made under [the Presidential Elections Clause].”[6] The Court relied on the 1892 case McPherson v. Blacker, which held that the Presidential Elections Clause “operat[es] as a limitation upon the State in respect of any attempt to circumscribe the legislative power.”[7] A week later, Chief Justice Rehnquist wrote a concurring opinion in Bush v. Gore arguing that “in a Presidential election the clearly expressed intent of the legislature must prevail.”[8]
The Supreme Court does not, as a general matter, review state court judgments resting on state law.[9] “A State’s highest court,” it has repeatedly held, “is unquestionably the ultimate expositor of state law.”[10] To warrant Supreme Court review, there must be a federal question.[11] The idea that a state court or official’s alteration of a state election rule warrants Supreme Court review thus requires viewing the Elections Clauses as freestanding grants of power to state legislatures, trumping even contrary provisions of their state constitutions. Palm Beach County Canvassing Board, for example, questioned whether the Florida Supreme Court had usurped “the legislature’s power to designate the manner for” holding presidential elections under the Presidential Elections Clause.[12] Chief Justice Rehnquist’s Bush v. Gore concurrence likewise asserted that the Florida Supreme Court’s judgment warranted review “to respect the legislature’s [Presidential Elections Clause] powers.”[13] And McPherson held that the Presidential Elections Clause gives state legislatures “the broadest power of determination” over presidential elections.[14]
But one could read the Elections Clauses quite differently—not to confer any powers on state legislatures, but merely to impose duties on them to set rules for federal elections, using whatever powers their state constitutions have given them. Think of it this way: if the teacher says that Bobby must choose which snack to share with the class the next day, Bobby’s mother can still make him bring a healthy snack to share instead of candy. It would do Bobby no good to say that the teacher told him to choose which snack to bring. His mother would tell him, quite rightly, that in Mom’s house, Mom’s rules apply. Likewise, under this view, the Elections Clauses say that each state legislature must choose how its state conducts federal elections, but nothing about which options it may choose from. They reserve this latter question to each state’s own constitution to answer, by giving or denying powers to the state legislature.
This understanding of the Elections Clauses takes the state legislatures “as they come—as creatures born of, and constrained by, their state constitutions.”[15] It also finds support in McPherson, which held that “[w]hat is forbidden or required to be done by a state” as to presidential elections “is forbidden or required of the legislative power under state constitutions as they exist.”[16] Significantly, if the Elections Clauses impose duties on state legislatures rather than granting them any new powers, then a state court or official’s decision to modify the state’s election rules in response to COVID-19 does not deprive the state legislature of any constitutional rights, and thus presents no federal question warranting Supreme Court review.
That is exactly the interpretation of the Elections Clauses that Justice Thomas has long advocated. Just this July, in Chiafalo v. Washington, he said that the Presidential Elections Clause “does not expressly delegate power to States; it simply imposes an affirmative duty” on them.[17] The issue there was whether states can penalize “faithless electors” who vote against the presidential candidate of the party that selected them.[18] The Court said yes, holding that the Presidential Elections Clause gives states this power.[19] Justice Thomas reached the same conclusion, but for a different reason. In his concurrence, he explained that the Presidential Elections Clause does not give states any power at all.[20] Rather, he said, states have the power to regulate presidential elections by virtue of our federal structure, because the Constitution simply never took such a power from them in the first place.[21]
Thomas first took this position in the 1995 case U.S. Term Limits, Inc. v. Thornton. [22] There, he argued that the Congressional Elections Clause “does not delegate any authority to the States,” but “simply imposes a duty upon them.”[23] Marshaling evidence from the Constitution’s ratification, he explained that the Framers had wanted “to ensure that the States hold congressional elections in the first place, so that Congress continues to exist.”[24]
Alexander Hamilton, for example, wrote in The Federalist No. 59 that without a constitutional check, the states “could at any moment annihilate [the federal government] by neglecting to provide for the choice of persons to administer its affairs.”[25] During New York’s ratifying convention, meanwhile, John Jay expressed concern that “the states [might] neglect to appoint representatives,” either by mistake or design, and stated that “certainly there should be some constitutional remedy for this evil.”[26] And at Massachusetts’ convention, delegate Caleb Strong voiced similar concerns, warning that “if the legislature of a state should refuse to make [election rules], the consequence will be, that the representatives will not be chosen, and the general government will be dissolved.”[27] As Justice Thomas explained, the Framers wrote the Congressional Elections Clause merely to prevent states from neglecting to send delegates to Congress, by imposing an affirmative obligation on them to do so. The Presidential Elections Clause too, he said, only “imposes an affirmative obligation on the States,” rather than granting them any powers.[28]
Under Justice Thomas’s originalist view of the Elections Clauses, the Supreme Court should not prevent state courts and officials from altering state election rules to assist voters during the pandemic. If the Elections Clauses merely impose duties on state legislatures without giving them any new powers, then such rule changes raise no federal questions warranting Supreme Court review. They can’t violate a state legislature’s constitutional rights, because the Elections Clauses give state legislatures no rights to violate. The rule change may or may not be correct under state law, but that is no business of the Supreme Court.
To be sure, Justice Thomas’s votes in Elections Clauses cases have not always tracked his stated views. He joined the Court in Palm Beach County Canvassing Board and Chief Justice Rehnquist’s concurrence in Bush, even though these opinions construe the Elections Clauses as grants of power to state legislatures rather than merely imposing obligations on them.[29] More recently, he voted to block state courts and officials in Pennsylvania and North Carolina from altering state election rules in response to the pandemic.[30] He has never explained how any of these votes square with his originalist understanding of the Elections Clauses, which ought to compel him to vote the other way. Truth be told, they don’t.
Should Elections Clauses issues arise after the election, the Supreme Court should follow Justice Thomas’s originalist position and resist the temptation to interfere with state election processes. Because in the end, the stakes go well beyond the election results themselves. Our faith in the Court may depend on it.
*Attorney, U.S. Department of Labor. The views I express here are mine alone, not my employer’s. I am grateful to Athul Acharya, Janine Balekdjian, John Hasley, Allie Hemmings, Robert Parker, and Collin Seals for their thoughtful and speedy feedback.
[1] 531 U.S. 98 (2000).
[2] See, e.g., Moore v. Circosta, No. 20A72 (U.S. Oct. 28, 2020) (denying application to enjoin North Carolina’s State Board of Elections from extending state deadline for receipt of absentee ballots, over objections from Justices Thomas, Alito, and Gorsuch); Republican Party of Pa. v. Boockvar, No. 20A54 (U.S. Oct. 19, 2020) (denying by an evenly divided vote a stay of a Pennsylvania Supreme Court decision extending state’s mail-in ballot receipt deadline and setting a presumption that ballots without postmarks were timely mailed); Scarnati v. Boockvar, 20A53 (U.S. Oct. 19, 2020) (same); Carson v. Simon, No. 20-3139, 2020 WL 6335967, at *6–7 (8th Cir. Oct. 29, 2020) (holding that Minnesota Secretary of State’s extension of deadline for receipt of mail-in ballots was likely unconstitutional); Order, Hotze v. Hollins, No. 4:20-cv-03079 (S.D. Tex. Nov. 2, 2020), ECF No. 63 (dismissing a similar challenge in Texas for lack of standing); see also Democratic Nat’l Comm. v. Wisc. State Legislature, No. 20A66, 2020 WL 6275871 (U.S. Oct. 26, 2020) (concurring opinions of Justices Kavanaugh and Gorsuch suggesting that state courts cannot modify state election statutes on state law grounds, concurring opinion of Chief Justice Roberts implicitly disagreeing, and dissenting opinion of Justice Kagan, joined by Justices Breyer and Sotomayor, explicitly disagreeing). This essay is limited to situations where a state court or official modifies an election rule on state law grounds. It does not address situations where they modify an election rule to comply with the U.S. Constitution or federal law.
[3] See supra sources cited in note 1.
[4] U.S. Const. art. I, § 4, cl. 1.
[5] U.S. Const. art. II, § 1, cl. 2.
[6] 531 U.S. 70, 76 (2000) (per curiam).
[7] Id. (quoting 146 U.S. 1, 25 (1892)).
[8] 531 U.S. 98, 120 (Rehnquist, C.J., concurring).
[9] See, e.g., Murdock v. City of Memphis, 87 U.S. 590, 632–33 (1874).
[10] Riley v. Kennedy, 553 U.S. 406, 425 (2008) (alterations and quotation marks omitted); accord Mullaney v. Wilbur, 421 U.S. 684, 691 (1975); cf. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (“And whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern.”).
[11] See, e.g., Caperton v. Ballard, 81 U.S. 238, 241 (1871); see also Sup. Ct. R. 10 (identifying “compelling reasons” that warrant certiorari, which require a federal question in essentially all cases).
[12] 531 U.S. at 73 (emphasis added).
[13] 531 U.S. at 113 (emphasis added).
[14] 146 U.S. 1, 27 (1892) (emphasis added).
[15] 531 U.S. at 123 (2000) (Stevens, J., dissenting).
[16] 146 U.S. at 25 (1892).
[17] 140 S. Ct. 2316, 2329 (2020) (Thomas, J., concurring).
[18] Id. at 2319 (majority opinion).
[19] Id. at 2324.
[20] Id. at 2329 (Thomas, J., concurring).
[21] Id.
[22] 514 U.S. 779 (1995).
[23] Id. at 862 (Thomas, J., dissenting).
[24] Id. at 863.
[25] The Federalist No. 59, at 361 (Hamilton) (Signet Classics 2003) (Clinton Rossiter ed., 1961).
[26] 2 Debates on the Adoption of the Federal Constitution 326 (J. Elliot ed. 1863).
[27] Id. at 24.
[28] Thornton, 514 U.S. at 864.
[29] See Bush v. Gore, 531 U.S. 98, 111 (200) (Rehnquist, C.J., concurring); Bush v. Palm Beach Cty. Canvassing Bd., 531 U.S. 70, 73 (2000) (per curiam).
[30] See supra sources cited in note 1.