Page:Moore v. Harper.pdf/62

24 on the question presented. In every case properly before it, any court—state or federal—must ascertain and apply the substantive law that properly governs that case. Thus, the court naturally must apply the Federal Constitution rather than any statute in conflict with it. The court must also apply the state constitution over any conflicting statute enacted under a power limited by that constitution. Petitioners’ argument, however, is that legislation about the times, places, and manner of congressional elections is not limited by state constitutions—because the power to regulate those subjects comes from the Federal Constitution, not the people of the State. Right or wrong, this question has nothing to do with whether state courts have the power to conduct judicial review in the first place. To say that “state judicial review” authorizes applying state constitutions over conflicting Elections Clause legislation,, is simply to assume away petitioners’ argument.

The majority opinion ends with some general advice to state and lower federal courts on how to exercise “judicial review” “in cases implicating the Elections Clause.” As the majority offers no clear rationale for its interpretation of the Clause, it is impossible to be sure what the consequences of that interpretation will be. However, judging from the majority’s brief sketch of the regime it envisions, I worry that today’s opinion portends serious troubles ahead for the Judiciary.

The majority uses the separate writings in Bush v. Gore, 531 U. S. 98 (2000) (per curiam), as a loose touchstone for the kind of judicial review that it apparently expects federal courts to conduct in future cases like this one. On its face, this is an awkward analogy, for there is a significant difference between Bush and Harper I. In Bush, the state court’s judgment was based on an interpretation of state statutory law, enacted by the state legislature. Thus, the relevant