In the past few weeks, the Supreme Court has been cleaning up some of the untidiness left after the November 2020 presidential election. In one action last Monday, the Court denied the request for review (known as a petition for a writ of certiorari) in the case filed by the Pennsylvania Republican Party (Republican Party of Pennsylvania v. Degraffenreid) challenging the actions of the Pennsylvania Supreme Court last September with regard to the deadline by which mail-in ballots had to be received in order to be counted. Three Justices—Justice Clarence Thomas and (separately) Justices Samuel Alito and Neil Gorsuch—dissented from the denial of review and would have taken up the Republican Party’s claims on the merits. The Court was right to reject review, and the dissents from the denial actually, albeit unwittingly, demonstrate the rightness of the majority’s decision.
First, some background: the Pennsylvania legislature in Harrisburg in 2019 adopted a law that expanded vote-by-mail options in elections in the state, but that on its face required that all mail-in ballots be received by 8 p.m. on election day to be considered valid. In 2020, in part on account of the difficulties COVID created for voters, Pennsylvania Democrats sued in state court, arguing that the Pennsylvania Constitution required more leeway in the time by which the ballots had to be returned, and the Pennsylvania Supreme Court agreed. On September 17, 2020, it ruled that the state constitution’s mandate that elections be “free and equal” required that the state accept mail-in ballots that were cast by election day but received within three days afterward. (The opening paragraph of Justice Thomas’s dissent, previewing the disrespect and legal carelessness the rest of his opinion displays towards the state courts more generally, observes that the Pennsylvania Supreme Court did what it did because it was “[d]issatisfied” with the legislature’s deadline; it is only later in the dissent that Thomas informs readers that the Pennsylvania Supreme Court said it was required to take action because the state constitution so demanded.)
Responding to the receipt-deadline extension, the Republican Party then sought relief in the U.S. Supreme Court, which the Court (perhaps because it had insufficient interest in the merits and perhaps in part because of the temporal proximity to the upcoming election and the difficulty in resolving a case carefully under a tight timeline) denied. The Republican Party’s claim on the merits? That the Electors Clause of Article II, which provides that the “legislature” of each state shall direct the “manner” in which presidential electors are chosen prevents state courts from overturning the expressed will of the legislative body. (Justices Alito and Gorsuch in their dissent cast the issue more broadly, to include not just the Electors Clause of Article II, but also the Elections Clause of Article I, which contains similar language with regard to congressional elections as distinguished from presidential elector selection.)
One of us (Vikram Amar) has elsewhere argued that the Republican Party’s theory here—that the federal Constitution frees state legislatures from state judicial review to enforce the very state constitutions that create, empower, and confine the legislatures—flies in the face of original understandings of constitutional text and structure, as well as recent binding precedent by the Supreme Court itself. For a detailed presentation of the argument debunking this so-called “independent state legislature” theory, see this paper. The three Degraffenreid dissenters suggest that stray dicta from an 1892 case that in no way involved the limits that a state constitution might place on a state legislature in this arena—and casual quotation from this case in a part of the discredited Bush v. Gore litigation 20 years ago that explicitly eschewed any determinations on the merits of any legal claims, where the Justices said explicitly that “[w]e decline . . . to review the federal questions asserted to be present”—somehow overrides much more directly applicable precedent from just six years ago, precedent which the Degraffenreid dissenters don’t even mention much less grapple with.
But even putting aside for the moment the ever-more-apparent weakness of the analytic and originalist arguments in favor of the “independent-state-legislature” theory, the majority of six Justices last week was clearly correct in denying review for several additional reasons.
First, lower courts have not really chewed on (and either swallowed or spit out) the independent-legislature theory in a way that most legal questions the Court decides to take up have been vetted by lower-court jurists for a while. The three Degraffenreid dissenters suggest that a split exists in the lower courts on this theory—that the Pennsylvania Supreme Court rejected it (which it did) and the U.S. Court of Appeals for the Eighth Circuit accepted it. But the Eighth Circuit never actually accepted or rejected it; the Eighth Circuit case arose in the context of a preliminary injunction, so the court there said only (and in a cursory two-paragraph discussion, no less) that the advocates of the independent-state-legislature theory were “likely” to succeed on the merits, not that they did in fact prevail. This is hardly the kind of split in lower-court authority the Court likes to have before wading into a matter. Indeed, not only is there no sharp division of lower court rulings on the merits of this question, but both of the decisions mentioned—by the Pennsylvania Supreme Court and the Eighth Circuit—were rendered under very time-constrained conditions that the Degraffenreid dissenters themselves argue is sub-optimal for a court to decide such important and complicated issues.
Second, the political backdrop under which review by the Court of these issues today would occur is very unhelpful. None of the parties argue that the Pennsylvania Supreme Court’s decision to extend the ballot-receipt deadline to comply with the state constitution affected the race for the presidency or any congressional seat in 2020 (there simply weren’t very many ballots received in the window between election night at 8 p.m. and three days later), but any ruling by the Supreme Court would be used by people who, notwithstanding factual reality, continue to believe (or at least continue to assert) that the 2020 election was somehow “stolen” from President Trump. Indeed, as sophisticated conservative analyst Ed Whelan has recently pointed out, some political observers on the Left construe Justice Thomas’s desire to take up this case and the dissent he penned as evidence that Thomas himself embraces claims of widespread election “fraud.” Mr. Whelan argues with some force that Justice Thomas’s references to “fraud” in his dissent last week have nothing to do with the factual claims of Trump supporters, and instead discuss the possibility of fraud in much more abstract and theoretical terms, but we would point out that Justice Thomas’s dissent itself is so careless in its assertions and analysis that political interpretations of his motives are hardly surprising. For example, Justice Thomas, unlike the other two Degraffenreid dissenters, says (coyly) that the Pennsylvania Supreme Court’s action “does not appear to have changed the outcome in any federal election,” and that the ballot-receipt extension “seems to have affected too few ballots to change the outcome of any federal election” (emphasis added). Why the hedging here? Even the Republican Party doesn’t allege—much less have any evidence to support—the possibility that the outcome would have been different. At least Justices Alito and Gorsuch are straightforward here when they say, directly, that a decision by the Court “in these cases would not have any implications regarding the 2020 election.”
All of this brings up an even bigger point: if these cases from Pennsylvania in 2020 would not affect the election of which the Republican Party was complaining, are they not moot? The answer is yes they are, and even the three Degraffenreid dissenters seem to accept that. Yet, they argue, this case falls into an exception to mootness doctrine that permits federal courts to hear matters that are no longer live or ripe if the issues raised are “capable of repetition” as to the complaining party, but are, because of the difficulty in deciding matters in federal court quickly, likely to “evade review” by the federal courts (and in particular the Supreme Court.) The Court has never satisfactorily explained why, if mootness deprives federal courts of adjudicatory authority under Article III of the Constitution, the Court is at liberty to fashion an exception (however potentially desirable) to get at issues that would otherwise “evade review.” (In this regard we note that in another Article III setting, that of standing, the Court has said that the fact that perhaps no one has standing to raise a particular claim is not a reason to disregard the Article III requirement of standing.)
But why exactly will the independent-state-legislature theory issue evade review by the Supreme Court? Well, say the Degraffenreid dissenters, it’s because the Court can’t easily decide cases that raise this question in the aftermath of a presidential election where the outcome in a state or the whole electoral college could change and the Justices would know which candidate, in particular, would be helped or hurt by its ruling—that would be extremely fraught for the nation and remedially challenging for the Justices. And when state courts invoke the state constitutions shortly before presidential elections, as the Pennsylvania Supreme Court did in September 2020, there generally is not sufficient time for the Supreme Court to fully consider the issues and render a ruling that can be implemented consistent with the need for voters heading into an election to have adequate clarity and notice concerning the voting rules so the voters can plan accordingly.
Fair enough. Sometimes the issue will arise too late in a presidential (or congressional, since advocates of the independent-legislature theory seem to think it applies to House and Senate elections under Article I as well) election cycle. But often it won’t. Why? Because—and here’s the key—state court rulings interpreting the state constitutions in ways that require overturning or ignoring parts of state election codes are almost always decided in ways that apply to all of a state’s elections, not just the presidential or congressional elections. States generally do not have separate voting and balloting regulations for state elections on the one hand, and presidential (or congressional) elections on the other. Justice Thomas’s dissent itself acknowledges this—he points out that although no federal election outcome “seems” to have been affected by the Pennsylvania Supreme Court’s actions, at least one state legislative contest might very well have. (We should note that Thomas’s apparent dismay over this state legislative contest is hard to understand: what business is it of federal courts whether a state court interprets the state constitution in ways that override the state legislature as to state elections? His instinct seems to be that even there that it is problematic for the state court to have “altered [a state] election result.” But the Pennsylvania Supreme Court didn’t “alter” the result; the state constitution prescribed the correct result that was simply enforced by the state courts, and federal courts need to respect the state constitution’s definition of the proper result, and the state courts’ interpretive primacy in this arena. This is just one of many examples of Justice Thomas’s apparent misunderstanding of the basic federalism backdrop against which the adventurous independent-state-legislature theory must be critically examined.)
Because state courts are often in the business of reviewing state election laws for purposes of all elections, and because any rulings that override the text of state election codes will apply in upcoming federal as well as state elections, there is no reason to think that, sometime in the next few years there won’t be any state court rulings that can be challenged with an eye to the upcoming 2022 congressional or 2024 presidential contests. Of course, a challenge brought concerning one of those elections can’t be brought too early—lest it be considered unripe on account of the possibility that the state legislature may respond to a judicial ruling by amending the election code in question. But surely there is likely to be a state court case somewhere in late 2021 that could be the basis of a challenge relating to the 2022 federal election, or a case in 2022 or 2023 that could be the basis of a challenge relating to the 2024 presidential contest. All of this seems much more likely given the attention to voting rules that is currently being paid in many states, and the large number of pieces of proposed legislation—some of which surely will be enacted and surely will raise issues under state constitutions—in states around the county, both Red and Blue.
To be sure, the federal courts may need to expedite any such case depending on when it is brought to help the Supreme Court resolve it well in advance of the upcoming federal election itself, but most of these cases involve pure questions of law and thus can be processed expeditiously if the federal courts are on the ball. And in any event, if mootness doctrine means anything, then the “capable of repetition yet evading review” exception cannot be invoked simply to avoid the inconvenience of federal courts sometimes having to expedite consideration of some time-sensitive issues.
A final ironic point about how Justice Thomas’s invocation of the state legislative election whose result might have owed to the state supreme court’s interpretation of the state constitution highlights the weakness of the independent-state-legislature theory on the merits: Notice that Articles I and II say only that state legislatures shall lay out the “manner” of holding federal elections—not that legislative election codes must always be applied according to their strict text. And consider that state legislatures have affirmatively chosen to enlist state courts (and other state agencies) to execute their will. They have done this in large part because of the practical need to have state and federal voting rules align, since voters are using a single ballot to elect people in both systems.
Yet this simple fact devastates the part of independent-state-legislature theory arguing that the federal courts must protect the state legislatures from state court overreaching; state legislatures have already indicated whom they want to protect their interests—state adjudicatory bodies. And the “manner” of (s)election of officials called for in Articles I and II may certainly involve other branches; there is nothing intrinsically suspect about a state legislature enlisting state courts in putting into effect its plan. And that is exactly what state legislatures have done. In dialogue with state courts over the years, and mindful of the accountability to state electorates and constituencies that state judges have (and that federal judges lack), state legislatures have chosen to incorporate into state statutes state constitutional norms as well as state judicial involvement to vindicate those norms. It is simply implausible to think that state legislatures have chosen to have federal—rather than state—judges decide what state statutes and state constitutions mean. And they have preserved these partnerships with state judiciaries and the uniformity between state and federal elections these partnerships promote even after the suggestion by a handful of Justices in the Bush v. Gore litigation that states could, if they wanted, separate the federal and state parts of ballots and have federal judges in particular oversee the former. If a state legislature adopted a provision saying its presidential or congressional regulations should be interpreted by federal, rather than state, courts, then such a provision (if not disallowed by the state constitution) might create a different situation from the one we face today. But so far as we know, no such state legislature has said or suggested any such thing.
