Page:Moore v. Harper.pdf/63

Rh Electors Clause question was whether, in doing so, the state court had departed from “the clearly expressed intent of the legislature,” 531 U. S., at 120 (Rehnquist, C. J., concurring), “impermissibly distort[ing]” the legislature’s enactments “beyond what a fair reading required,” id., at 115. In Harper I, by contrast, there was no doubt that the state court departed from the clearly expressed intent of the legislature; it rejected the legislature’s enactment as unconstitutional.

By doing so, today’s majority concludes, Harper I did not commit per se error, as the Elections Clause permits state courts to apply substantive state-constitutional provisions to the times, places, and manner of federal elections. At the same time, state courts are warned that they operate under federal-court supervision, lest they “transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” Thus, under the majority’s framework, it seems clear that the statutory-interpretation review forecast in Bush (or some version of it) is to be extended to state constitutional law.

In this way, the majority opens a new field for Bush-style controversies over state election law—and a far more uncertain one. Though some state constitutions are more “proli[x]” than the Federal Constitution, it is still a general feature of constitutional text that “only its great outlines should be marked.” McCulloch, 4 Wheat., at 407. When “it is a constitution [courts] are expounding,” ibid., not a detailed statutory scheme, the standards to judge the fairness of a given interpretation are typically fewer and less definite.

Nonetheless, the majority’s framework appears to demand that federal courts develop some generalized concept of “the bounds of ordinary judicial review,” ; apply it to the task of constitutional interpretation within each State; and make that concept their rule of decision in