Some (Old) Thoughts on the (Re)Emerging Article II Argument About Presidential Elections

Mark Tushnet

 Justice Kavanaugh, perhaps remembering his role in Bush v. Gore, re-ups Chief Justice Rehnquist's argument there (calling it "persuasive[]") that Article II places limits on the power of state courts to interpret state statutes specifying the rules for selecting presidential electors. The argument focuses on the text: Article II says that electors shall be chosen "in such manner as the Legislature ... shall direct."

Suppose a litigant says that the statutes so specifying are unclear in some way. For example, suppose the statute books contain more than the rules about choosing electors, but rules as well about the power of the Secretary of State to implement those rules (giving the Secretary of State some discretion in interpreting the rules). Or suppose the rules about choosing electors are -- or are said to be -- unclear. Or suppose a litigant contends that the statutory rules would violate the state constitution if interpreted in one rather than another way.

In each of these cases the state supreme court could say that the words of the statute govern no matter what. For example, the court might say that the statute defining the scope of the Secretary of State's authority doesn't apply to the rules for choosing electors. If so, no problem.

But what if the state supreme court says, "You know, you're right. The Secretary of States does have interpretive discretion here, and exercised it in a manner permissible under state law." Or, maybe easier to grasp, "We assume that our legislature doesn't enact statutes that are inconsistent with the state constitution, and for that reason we interpret the statute in a way that is linguistically permissible but somewhat strained." Do these actions by the state supreme court interpreting the legislature's enactments "violate" Article II be substituting rules devised by the courts for rules "direct[ed]" by the legislature?

It's hard to see why they would, in general. There are two wrinkles. First, we can imagine an "interpretation" of the statutory language that's so creative as to amount to a substitution of a court-devised rule of a legislature-prescribed one: The state supreme court might have stretched the statute's words beyond reasonable bounds. (That's what Republicans contended the Florida Supreme Court had done in Bush v. Gore. Notably, though, a majority of the Court didn't accept that construal of the state court's action.)

Second, on review in the U.S. Supreme Court, that court is almost certainly authorized to interpret the state statutes on its own, giving the state supreme court's interpretation of the statute the weight that the interpretation is due but not being bound by the state court's interpretation. s Chief Justice Rehnquist said, that's so because the U.S.Supreme Court has to be able to control state courts that deliberately evade the federal Constitution.

This second wrinkle is different from the first one. There the U.S. Supreme Court says that the state court's interpretation is (roughly speaking) completely unreasonable. Here the U.S. Supreme Court says that, though the state court's interpretation is reasonable, it's not the best one available (taking all the relevant state law materials into account). Which is to say, it's not the one that we think is best, notwithstanding what you thought.

The first wrinkle is pretty straight-forward. The second is pretty hazardous, because -- especially in light of time pressures -- the justices of the U.S. Supreme Court aren't likely to be able to get up to speed on all the relevant state law materials. So, it's probably best for the justices to be quite strongly deferential to the state supreme court -- which means that the second wrinkle probably should be pretty much the same as the first.

(I don't think you can escape this analysis by simply citing the Arizona districting commission case and saying that Article II's reference to "the legislature" refers to every action authorized by state law -- whether by the state supreme court of the Secretary of State -- that interprets the relevant statutes, because the whole problem lies in figuring out whether the interpretive action is authorized by state law.)