Notice & Comment

Moore v. Circosta and Federalism

On Wednesday, in Moore v. Circosta, the Supreme Court denied a request for an injunction barring the implementation of a memo issued by the North Carolina State Board of Elections that extends the deadline for receiving absentee ballots in North Carolina.  Justice Gorsuch dissented, and it is on that dissent that this post focuses. 

One line of argument pressed by Justice Gorsuch was that the Board of Elections lacked the power to extend the absentee deadline.   As he put it, Article I of the U.S. Constitution authorizes the state “legislatures” to prescribe the time place and manner of elections for Congress, and the North Carolina Constitution vests the legislative power in the General Assembly.  Thus, Justice Gorsuch said, we have “all we need to know”—the Board had no power to act.

That seems very dubious. It is true that the North Carolina Constitution assigns the legislative power to the General Assembly.  But North Carolina state law controls delegations. And if the state says it has delegated legislative power to a board under state law, then federalism says the US Supreme Court must accept that delegation.  So North Carolina’s Constitution doesn’t give the Supreme Court “all [it] needs to know.”  The Court must consider North Carolina’s pronouncements on how it implements the North Carolina Constitution.

To be sure, one might say that what constitutes the “legislature” in Article I of the U.S. Constitution is a federal question and therefore the Court need not consider the views of the state in determining what constitutes the state legislature.  That’s not a good argument.  It is true that the meaning of Article I is a federal question, but federal law should look to state law to figure out what is the state legislature. 

The Constitution does not prescribe a form of legislature for states.  States have massive flexibility in determining who exercises legislative power.  They can follow the federal model of a single, bicameral legislature.  Or they can establish a unicameral legislature, as in Nebraska.  Or they can establish multiple legislatures with different scopes of legislative power.  Or they can establish legislatures with the power to delegate their legislative powers on others.   As I’ve noted here, discussions surrounding the Republican Form of government clause make clear that the U.S. Constitution was not meant to prescribe particular forms of state government—aside from the bare minimum of being republican in form.    It would be utterly shocking to think that the Constitution smuggled in a restriction on the form of state government in the provision devoted to electing members of congress.

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