[EL] Well, now we know there are at least four Justices (w/Barrett not yet opining)

[Kirsten Nussbaumer]

Re Mark's suggestion that federal courts should defer to state legislators' reading of their state constitutions over their state supreme courts’ reading:

In addition to the objections from Marty and Rick (i.e., the problem that such an approach would be wildly different from how SCOTUS has approached Congress’s elections authority under 1/4/1 and the 14/15th amendments), I think the Scarberry suggestion may implicitly assume that the states are (or that they should be) the same in how they do:  separation-of-powers, judicial (esp. constitutional) review (e.g. full-on judicial supremacy or shades of Madisonian departmentalism), and constitutional and statutory interpretation.  But the states very much differ on these things, sometimes to an extent that can be shocking to folks who have focused their careers on federal law.

Mark’s proposal seems to offer SCOTUS a way to answer the state leg/state constitution questions about the federal elections clauses in a way that is more minimalist than that of some of the independent-state-legislature theories.  But in elevating constitutional interpretation by state legislators over that of state courts, SCOTUS might be fundamentally re-jiggering some of the state traditions on separation of powers, judicial review and interpretative methods.

I happen to be attracted to constitutional theories and practices in which legislators’ constitutional duties are more robust than they have been in the 20th/21st centuries, but having the federal courts be the ones to impose such a theory and as a matter of uniformity across all the states?   (This objection does NOT mean I am coming close to a premise of dualism that so many constitutional scholars take for granted as our federal structure—I regularly pound the opposite point that federal election law is not dualism.)

Also:  I find it interesting that Mark refers to the state legislators’ state-constitutional interpretations. I don’t know whether Mark meant for anything to hang on his reference to legislators rather than legislatures and statutes.  But the choice of language might not always be neutral in the present debates.

Kirsten
—sending this just as I see Mark has written a new reply I haven’t read yet...
-----
Marty,

But haven't some state courts interpreted very vague state constitutional requirements ("free and fair elections") to embody the courts' own views of what is appropriate, despite state legislative provisions to the contrary? 

If Art. II includes a direct grant of authority by the Constitution to the state legislatures -- a proposition that I know is subject to good faith dispute -- isn't a serious federal question created when a state court refuses to recognize that authority? 

Even if the state constitution can bind the legislature, I presume that state legislators also take an oath to uphold the state constitution. They would argue that they followed their best understanding of the state constitutional requirement for "free and fair elections" in enacting the rules that the state courts have overriden. If the authority is given directly to the state legislators as a matter of federal law, and a very vague provision of the state constitution is involved, why shouldn't federal courts defer to the legislators' understanding of what the state constitution requires? And that's an approach that doesn't, in these cases, depend on whether state constitutions can limit the legislatures' authority.


Mark



> On Oct 28, 2020, at 7:20 PM, Marty Lederman <Martin.Lederman at law.georgetown.edu> wrote:
> 
> Hasn't the U.S. Supreme Court interpreted the even vaguer words of the First and Fourteenth Amendments to establish dozens and dozens of doctrines reflecting what that Court thinks are "appropriate" ways of constraining legislatures--federal and state--in order to advance the ends of the those amendments, including a very rich body of doctrines, many of them intensely fact-dependent, relating to elections, in particular?  
> 
> Do those many Court-created constitutional doctrines "refuse to recognize" the authority of state legislatures and Congress to enact election codes?  Do they ignore the fact that all those legislators took oaths to uphold their state and federal constitutions?

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201028/922763d6/attachment.html>