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Calibrating Judicial Review to the Times

Updated: Jan 25, 2022

Judge Sutton’s two books, Fifty-One Imperfect Solutions and Who Decides? contain fascinating history lessons, much food for thought, and some practical advice. One intriguing suggestion, especially prominent in his first book, is that state courts decide questions of state constitutional law first, reaching federal constitutional questions only if necessary. As readers of this blog undoubtedly know, when it comes to constitutional rights, the federal Constitution sets a floor, but state law can be more protective. Just last month, for example, the New Jersey Supreme Court held that its state constitution precludes judges, when sentencing a criminal defendant, from relying on conduct for which the defendant was acquitted, expressly rejecting federal precedent to the contrary.

And unsurprisingly for a judge interested in state courts, in Who Decides?, Judge Sutton explains how courts in Pennsylvania and North Carolina have struck down extreme partisan gerrymanders as violating those states’ own constitutions, even as the U.S. Supreme Court concluded that a lack of “judicially manageable standards” made those challenges nonjusticiable in federal court.

But although Judge Sutton urges respect for and elevation of state constitutions in both his first book and in parts of Who Decides?, arguing persuasively that they are important sites of constitutional development, in Who Decides?, he also voices ambivalence about judicial review. He describes expansive judicial review as a “gerrymander” in which matters of social policy are removed from the democratic process.

This tension between respect for state constitutions and ambivalence about judicial review arises just as a debate has re-emerged over state constitutional and judicial authority over the right to vote in presidential (and possibly other federal) elections. More specifically, some are arguing that the federal constitution precludes state constitutions (and by extension, state courts) from placing limits on state legislative choices about selecting presidential electors and on running federal elections more generally. Under this view, often referred to as the independent state legislature doctrine (ISLD), when legislatures determine the method by which presidential electors are selected or when they set rules for federal elections, they operate in a state-constitution-free zone.

The argument for the ISLD is based on the language of Article II, section 1, clause 2, of the Constitution, which states in relevant part: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,” who then go on to choose the President, and on Article I, section 4, which provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Based on this argument, President Trump and his allies urged legislatures to overturn the results of the 2020 election. And although that did not happen, the battle over the scope of state legislative authority over presidential electors – and possibly over aspects of congressional elections – is only just beginning. For example, legislation has been introduced in Arizona that, if passed, would allow the state legislature to rescind the certification of the state’s presidential election regardless of election results. (The legislature adjourned its most recent session without acting on the bill.)

The ISLD is problematic for numerous reasons, but one that Judge Sutton might appreciate is that the doctrine, at least in its most extreme forms, is deeply contemptuous, even destructive, of a legal and political culture that takes state constitutions – and state courts – seriously. Many state constitutions have “free elections” clauses. In Arizona, for example, Article 2, section 21 of the state constitution reads: “All elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” In New Hampshire, Part I, Article 11 of the constitution states: “All elections are to be free, and every inhabitant of the state of 18 years and upwards shall have an equal right to vote in any election.” There is no federal counterpart to these clauses.

And as Judge Sutton would expect, different state courts have interpreted and applied their free elections clauses differently. In 2014, for example, a Pennsylvania court declared a voter ID law unconstitutional under that state’s version of the clause because the statute failed to provide a “non-burdensome means of obtaining compliant photo ID.” The free elections clause also played a role in the Pennsylvania court’s ruling on gerrymandering. On the other hand, otherstate courts have upheld their voter ID laws against similar state constitutional challenges.

A maximalist ISLD, however, might suggest that a Pennsylvania constitutional holding cannot apply to federal elections. Indeed, the Republican party so argued in 2020 when it asked the U.S. Supreme Court to reverse a different Pennsylvania Supreme Court case related to absentee ballots. Leaving aside the merits of voter ID laws themselves and the administrative challenges of different requirements for state and federal elections, there would be consequences to this approach that should concern anyone interested in the development of state constitutional law.

For one thing, a state court might be more reluctant to find robust state constitutional protections, or to rely on constitutional avoidance when construing election laws, if doing so could lead to a two-tiered voting system. In other words, the ISLD could have a chilling effect on the state courts’ evaluation of their own laws and constitutional provisions. And as Judge Sutton has suggested, that chilling effect could implicate the development of federal constitutional law as well.

Second, this maximalist ISLD could well send voters a message of no confidence in their state courts. Federal courts (including but not limited to the U.S. Supreme Court) would be asked to determine if a state court went too far in applying the state constitution or strayed too far from statutory text – essentially engaging in judicial review of judicial review. And if a federal court found that the state court had done so, voters would be faced with both a two-tier election system and a federal court reversal of their own state court’s state law holding. Such voters would likely be, at best, confused and, at worst, might well conclude that their state judges are incompetent, overreaching, and/or partisan.

These considerations are certainly not dispositive of the scope of state legislative and judicial authority over federal elections. But for anyone who is interested in the robust development of state constitutional law and the role of state courts, these concerns should at least give pause. On the other hand, the Judge Sutton of Who Decides? might point out that such skepticism about judges is the foreseeable, perhaps even inevitable, result of judicial review, especially judicial review in the context of highly politicized issues. And yet, as he also recognizes, if the people of a state amend their constitution to, for example, require an independent redistricting commission or prohibit extreme partisan gerrymandering, they presumably expect judicial enforcement.

More than once in Who Decides?, Judge Sutton hints that the optimal level of judicial review may change over time. In the redistricting context, for example, he suggests that, given the pragmatic and philosophical challenges in determining how to balance numerous competing criteria in redistricting, to the extent state courts are involved, perhaps stare decisis should have “little role to play.” (Although the suggestion arises in his discussion of redistricting, Judge Sutton implies that it might extend it further, to whenever judges are addressing societal problems “in legislative ways.”) If the assertiveness of judicial review can be calibrated to the times, we should look at what the times demand. And as we are facing the most substantial threats to our constitutional democracy since the Civil War, now might very well be the time for courts to act assertively to protect it.


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