# Moore v. Harper/Opinion of Justice Kavanaugh

SUPREME COURT OF THE UNITED STATES
No. 21–1271
TIMOTHY K. MOORE, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES, ET AL., PETITIONERS v. REBECCA HARPER, ET AL. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA [June 27, 2023]
Justice Kavanaugh, concurring.
I join the Court’s opinion in full. The Court today correctly concludes that state laws governing federal elections are subject to ordinary state court review, including for compliance with the relevant state constitution. Ante, at 15, 26, 29. But because the Elections Clause assigns authority respecting federal elections to state legislatures, the Court also correctly concludes that “state courts do not have free rein” in conducting that review. Ante, at 26. Therefore, a state court’s interpretation of state law in a case implicating the Elections Clause is subject to federal court review. Ante, at 26–30; see also Bush v. Palm Beach County Canvassing Bd., 531 U. S. 70, 76–78 (2000) (unanimously concluding that a state court’s interpretation of state law in a federal election case presents a federal issue); cf. Democratic National Committee v. Wisconsin State Legislature, 592 U. S. ___, ___, n. 1 (2020) (Kavanaugh, J., concurring in denial of application to vacate stay) (slip op., at 9, n. 1). Federal court review of a state court’s interpretation of state law in a federal election case “does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures.” ​Bush v. Gore, 531 U. S. 98, 115 (2000) (Rehnquist, C. J., concurring).
The question, then, is what standard a federal court should employ to review a state court’s interpretation of state law in a case implicating the Elections Clause—whether Chief Justice Rehnquist’s standard from Bush v. Gore; Justice Souter’s standard from Bush v. Gore; the Solicitor General’s proposal in this case; or some other standard.
Chief Justice Rehnquist’s standard is straightforward: whether the state court “impermissibly distorted” state law “beyond what a fair reading required.” Ibid. As I understand it, Justice Souter’s standard, at least the critical language, is similar: whether the state court exceeded “the limits of reasonable” interpretation of state law. Id., at 133 (dissenting opinion). And the Solicitor General here has proposed another similar approach: whether the state court reached a “truly aberrant” interpretation of state law. Brief for United States as Amicus Curiae 27.
As I see it, all three standards convey essentially the same point: Federal court review of a state court’s interpretation of state law in a federal election case should be deferential, but deference is not abdication. I would adopt Chief Justice Rehnquist’s straightforward standard. As able counsel for North Carolina stated at oral argument, the Rehnquist standard “best sums it up.” Tr. of Oral Arg. 131. Chief Justice Rehnquist’s standard should apply not ​only to state court interpretations of state statutes, but also to state court interpretations of state constitutions. And in reviewing state court interpretations of state law, “we necessarily must examine the law of the State as it existed prior to the action of the [state] court.” Bush, 531 U. S., at 114 (Rehnquist, C. J., concurring).
Petitioners here, however, have disclaimed any argument that the North Carolina Supreme Court misinterpreted the North Carolina Constitution or other state law. See ante, at 29. For now, therefore, this Court need not, and ultimately does not, adopt any specific standard for our review of a state court’s interpretation of state law in a case implicating the Elections Clause. See ante, at 28 (“We do not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause”). Instead, the Court today says simply that “state courts do not have free rein” and “hold[s] only that state courts may not transgress the ordinary bounds of judicial review.” Ante, at 26, 29. In other words, the Court has recognized and articulated a general principle for federal court review of state court decisions in federal election cases. In the future, the Court should and presumably will distill that general principle into a more specific standard such as the one advanced by Chief Justice Rehnquist.
With those additional comments, I agree with the Court’s conclusions that (i) state laws governing federal elections are subject to ordinary state court review, and (ii) a state court’s interpretation of state law in a case implicating the Elections Clause is in turn subject to federal court review.
* ↑ I doubt that there would be a material difference in application among the standards formulated by Chief Justice Rehnquist, Justice Souter, and the Solicitor General, given the similarities in the three standards, at least as described above. To be sure, different judges may reach different conclusions in an individual case about whether a particular state court interpretation is impermissible under the chosen standard. But I doubt that the precise formulation of the standard—assuming it is Chief Justice Rehnquist’s, Justice Souter’s, or the Solicitor General’s—would be the decisive factor in any such disagreement.
* ↑ Instead, petitioners make the broader argument, which the Court today properly rejects, that the Elections Clause bars state courts from reviewing state laws for compliance with the relevant state constitution.