A novel legal theory is surging among conservative judges and justices. The notion is that, under the Constitution, only state legislatures — without any input from state executives or courts — may set the rules for presidential elections. This theory is clearly a misunderstanding of constitutional election law. But it’s actually worse than that: It fundamentally misapprehends how law itself functions. To imagine that the work of legislatures can be wholly isolated from the work of other parts of our government is a fantasy untethered from an inescapable feature of the American legal system: Law represents an interplay between legislators and those who must interpret and implement their handiwork, including judges and executive branch officials.
Here’s what everyone agrees on: Article II of the Constitution says that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” that state’s representatives to the electoral college, which chooses the president. No one disputes the basic reality that state legislatures typically take the lead in setting rules for the statewide elections that choose electors who, in turn, choose a president.
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But in the past couple of weeks, the focus on two words in that constitutional text — “the Legislature” — has been taken to fanatical extremes. Most recent — and most absurd — is a decision on Thursday by a federal court of appeals that, five days before Election Day (too late for the state to do anything to respond to it), abruptly changed the rule for Minnesota voters from a requirement that their mail-in ballots be sent by Election Day to a requirement that those ballots be received by Election Day, thus unsettling at the last moment both the law and voters’ expectations. The two judges voting for that outcome insisted that a state official who’d interpreted state law to allow the more accommodating deadline had intruded on a power reserved to the legislature alone. It’s the same basic notion that Justice Neil M. Gorsuch expressed in voting to halt a decision by North Carolina’s State Board of Elections interpreting North Carolina law on election rules, and that Justice Samuel A. Alito Jr. articulated in voting to halt a Pennsylvania Supreme Court decision interpreting that state’s election laws. Alito insisted on strict adherence to “the provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections.”
The Supreme Court shouldn’t decide voting cases. It keeps getting them wrong.
There’s the core principle uniting all of these recent decisions: State election rules must be set by state legislatures alone.
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Put aside that this is the opposite of what the U.S. Supreme Court has said — including in a 2015 decision holding that the Constitution’s reference to “the Legislature” means a state’s process of making laws, including a governor’s role in vetoing laws and courts’ role in interpreting laws. And put aside the oddity that this idea means that a ballot could count for Minnesota’s state elections but somehow not for federal ones, even though the same legislature enacted the rules for both of them and the ballot includes candidates for both sorts of offices. Even more fundamentally, this newfound notion that legislatures must, in utter isolation, set election rules alone is impossible to square with the basics of how law works in America.
To see why, imagine a state legislature who enacts a law that says: “On Election Day, the polls shall close at 6 p.m. or, if the weather is inclement, later that evening. The time at which the polls will close, in the advance of possible inclement weather, shall be announced by the secretary of state on the day before Election Day. If there is a dispute as to whether the secretary of state has correctly determined the time polls will close, state judges shall resolve that dispute.”
Then imagine that the secretary of state announces the day before the election that polls will close at 8 p.m. They are, of course, acting under express authority granted by the state legislature in implementing the law. But is it “the legislature” that has set the election rules? Or, because some other entity in the state (the secretary) played some role, is their determination invalid? If it is, does that mean that the polls must close at 6 p.m. every year? But how does that give effect to the will of the legislature, whose law explicitly rejects that outcome?
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Now imagine the secretary announced a later poll closing time even though sunny skies were forecast and no one thought inclement weather was even possible. If a state judge — again, acting under express authority granted by the state legislature — rules that the secretary’s wrong, and orders the polls to close at 6 p.m. instead in accordance with the statute, is it “the legislature” that has set the election rules? Or, because a court got involved, is that determination invalid?
If these questions seem absurd in purporting to demand strict yes or no answers, it’s because they are. The legislature is still the body that set the rules even when those rules require implementation and interpretation by an executive branch official or a court. That’s how virtually all law operates every day in this country: Legislatures articulate rules, then executive officials and courts figure out how to apply and enforce them in particular circumstances. (A state legislature could try to strip the court of jurisdiction to hear such cases, and could cut out any state officials too; but, when they haven’t done that, ordinary state processes should apply.) That doesn’t rob the legislatures of their roles; to the contrary, it effectuates their roles — just as our hypothetical secretary of state and state court would.
Kavanaugh has wild ideas about voting. They likely won’t matter on Election Day.
But this hypothetical is just a less complicated version of what happened in the Minnesota, North Carolina and Pennsylvania cases. In Minnesota, a state official, relying on explicit authority granted by the state legislature, determined when mail-in ballots must be received this year to comply with the laws of the state. In North Carolina, a state election board figured out how to make sense of various state laws. In Pennsylvania, a state court played that role. In none of these cases did the decider somehow wrest power away from the state legislature as the author of the state’s election laws. In each, it tried to effectuate the legislature’s handiwork, consistent with the state and federal constitutions.
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In grade school, children learn that legislatures write the law, executives implement the law and courts interpret the law. To insist that, in the area of election administration alone, state legislatures must do it all themselves fetishizes the words “the Legislature” in the Constitution and strains them beyond recognition — because that’s never what legislatures do. For judges and justices suddenly to claim otherwise isn’t just a bad take on election law, but a bad take on law — period.
Here’s what everyone agrees on: Article II of the Constitution says that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” that state’s representatives to the electoral college, which chooses the president. No one disputes the basic reality that state legislatures typically take the lead in setting rules for the statewide elections that choose electors who, in turn, choose a president.
Follow the latest on Election 2020
But in the past couple of weeks, the focus on two words in that constitutional text — “the Legislature” — has been taken to fanatical extremes. Most recent — and most absurd — is a decision on Thursday by a federal court of appeals that, five days before Election Day (too late for the state to do anything to respond to it), abruptly changed the rule for Minnesota voters from a requirement that their mail-in ballots be sent by Election Day to a requirement that those ballots be received by Election Day, thus unsettling at the last moment both the law and voters’ expectations. The two judges voting for that outcome insisted that a state official who’d interpreted state law to allow the more accommodating deadline had intruded on a power reserved to the legislature alone. It’s the same basic notion that Justice Neil M. Gorsuch expressed in voting to halt a decision by North Carolina’s State Board of Elections interpreting North Carolina law on election rules, and that Justice Samuel A. Alito Jr. articulated in voting to halt a Pennsylvania Supreme Court decision interpreting that state’s election laws. Alito insisted on strict adherence to “the provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections.”
The Supreme Court shouldn’t decide voting cases. It keeps getting them wrong.
There’s the core principle uniting all of these recent decisions: State election rules must be set by state legislatures alone.
AD
ADVERTISING
Put aside that this is the opposite of what the U.S. Supreme Court has said — including in a 2015 decision holding that the Constitution’s reference to “the Legislature” means a state’s process of making laws, including a governor’s role in vetoing laws and courts’ role in interpreting laws. And put aside the oddity that this idea means that a ballot could count for Minnesota’s state elections but somehow not for federal ones, even though the same legislature enacted the rules for both of them and the ballot includes candidates for both sorts of offices. Even more fundamentally, this newfound notion that legislatures must, in utter isolation, set election rules alone is impossible to square with the basics of how law works in America.
To see why, imagine a state legislature who enacts a law that says: “On Election Day, the polls shall close at 6 p.m. or, if the weather is inclement, later that evening. The time at which the polls will close, in the advance of possible inclement weather, shall be announced by the secretary of state on the day before Election Day. If there is a dispute as to whether the secretary of state has correctly determined the time polls will close, state judges shall resolve that dispute.”
Then imagine that the secretary of state announces the day before the election that polls will close at 8 p.m. They are, of course, acting under express authority granted by the state legislature in implementing the law. But is it “the legislature” that has set the election rules? Or, because some other entity in the state (the secretary) played some role, is their determination invalid? If it is, does that mean that the polls must close at 6 p.m. every year? But how does that give effect to the will of the legislature, whose law explicitly rejects that outcome?
AD
Now imagine the secretary announced a later poll closing time even though sunny skies were forecast and no one thought inclement weather was even possible. If a state judge — again, acting under express authority granted by the state legislature — rules that the secretary’s wrong, and orders the polls to close at 6 p.m. instead in accordance with the statute, is it “the legislature” that has set the election rules? Or, because a court got involved, is that determination invalid?
If these questions seem absurd in purporting to demand strict yes or no answers, it’s because they are. The legislature is still the body that set the rules even when those rules require implementation and interpretation by an executive branch official or a court. That’s how virtually all law operates every day in this country: Legislatures articulate rules, then executive officials and courts figure out how to apply and enforce them in particular circumstances. (A state legislature could try to strip the court of jurisdiction to hear such cases, and could cut out any state officials too; but, when they haven’t done that, ordinary state processes should apply.) That doesn’t rob the legislatures of their roles; to the contrary, it effectuates their roles — just as our hypothetical secretary of state and state court would.
Kavanaugh has wild ideas about voting. They likely won’t matter on Election Day.
But this hypothetical is just a less complicated version of what happened in the Minnesota, North Carolina and Pennsylvania cases. In Minnesota, a state official, relying on explicit authority granted by the state legislature, determined when mail-in ballots must be received this year to comply with the laws of the state. In North Carolina, a state election board figured out how to make sense of various state laws. In Pennsylvania, a state court played that role. In none of these cases did the decider somehow wrest power away from the state legislature as the author of the state’s election laws. In each, it tried to effectuate the legislature’s handiwork, consistent with the state and federal constitutions.
AD
In grade school, children learn that legislatures write the law, executives implement the law and courts interpret the law. To insist that, in the area of election administration alone, state legislatures must do it all themselves fetishizes the words “the Legislature” in the Constitution and strains them beyond recognition — because that’s never what legislatures do. For judges and justices suddenly to claim otherwise isn’t just a bad take on election law, but a bad take on law — period.
