The Washington PostDemocracy Dies in Darkness

Sen. Hawley has been condemned. His bad legal arguments should be stamped out, too.

It’s hardly unusual — let alone unconstitutional — for state courts to weigh in on what state legislatures do.

Sen. Josh Hawley (R-Mo.) is seen before President-elect Joe Biden arrives at the East Front of the U.S. Capitol for his inauguration ceremony on Jan. 20. (Jonathan Ernst/Pool/AFP)
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Sen. Josh Hawley (R-Mo.) has been roundly condemned for his role in amplifying President Trump’s false claims that this year’s election was “rigged” and “stolen” — and for challenging the counting of the electoral-college votes even after a violent mob stormed the Capitol. In recent days former allies, including his political mentors and major donors, have denounced him. Yet the focus on the Capitol violence has meant that the specifics of Hawley’s legal arguments have received less attention. That’s unfortunate, because the senator’s arguments present a threat to democracy that will not disappear even now that Trump has left office. Hawley’s status as a former law professor and clerk to Chief Justice John G. Roberts Jr. might lead observers to give credence to his legal claims, if not to his political positions. But legal arguments, some of which have started to gain a foothold on the right, would in fact undermine not just Democrats’ ability to win elections but the rule of law itself.

The gist of Hawley’s legal argument is this: Because the Constitution provides that the method for selecting a state’s presidential electors and the details of Congressional elections in a state are to be set by “the Legislature thereof,” no other state government institutions can legitimately exercise power over those elections. More specifically: Although Pennsylvania’s legislature passed laws regulating state elections (including expanding access to mail-in ballots), Hawley and others claim that the Pennsylvania Supreme Court and the secretary of state impermissibly responded to the pandemic by extending the legislature’s deadline for receiving mail-in ballots in response to a suit brought by the state Democratic Party and other Democratic officials. Indeed, Pennsylvania Republicans have petitioned the U.S. Supreme Court to rule that the “Pennsylvania Supreme Court rewrote Pennsylvania’s law governing federal elections and violated the United States Constitution.”

This argument isn’t new. Then-Chief Justice William Rehnquist offered a similar flawed theory in his concurrence in Bush v. Gore, the case that ended the Florida recount in the 2000 presidential election. Rehnquist — joined by only two other justices — said that the Constitution gives the state legislature sole authority over elections and over the way that electors are chosen for the electoral college. The Constitution, he wrote, “leaves it to the legislature exclusively to define the method” for appointing electors. Hawley and others who objected to the preference of Pennsylvania’s voters are building on the dubious foundation Rehnquist established in that case.

But it makes no sense to read the word “legislature” in the Constitution so literally. Just because, for instance, the Constitution specifies that “Congress shall have power” to “establish post offices” doesn’t mean Congress has to build the post offices itself. Or that the president can’t appoint postmasters, or (especially) that courts can’t interpret legislation that Congress passes regarding post offices.

If there weren’t partisan motives to argue otherwise, the legitimacy of the Pennsylvania Supreme Court’s actions would seem obvious: The Pennsylvania legislature enacted voting laws; the court interpreted those laws and ensured that they complied with the state Constitution; and the Pennsylvania secretary of state implemented those laws. This is how the constitutionally established “republican form of government” should (and usually does) work.

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A majority of the Supreme Court has never endorsed Rehnquist’s interpretation of election law. But there’s reason to worry that could change. Justice Brett M. Kavanaugh, who as a young lawyer helped develop the Bush campaign’s arguments that led to Bush v. Gore, heartily endorsed Rehnquist’s arguments in an October opinion regarding Wisconsin’s deadline for receiving absentee ballots. The Constitution, he stressed, “expressly provides that the rules for Presidential elections are established by the States ‘in such Manner as the Legislature thereof may direct.’ ”

Why the growing support for this dubious line of argument? Cynics might note that a constitutional rule that empowers state legislatures over other institutions is on balance likely to benefit Republicans, given that they enjoy an advantage in control of statehouses.

There’s more grounds for cynicism. When Hawley addressed the Senate after the riots, he paired the “legislature” argument — which had been incubating on the right for 20 years — with a second, completely inconsistent argument that provides good evidence of bad faith. He contended that Congress should intervene in Pennsylvania’s affairs, even though such meddling undermines the federalism principles that conservatives normally extol — and which has almost no basis in law. Specifically, he maintained that the Pennsylvania legislature itself had violated the state Constitution by allowing universal mail-in voting in the first place, and that the state Supreme Court abandoned its proper role by declining to hear a challenge to that new law — essentially the exact opposite of his other argument (that the court had usurped legislative authority by extending deadlines). Therefore, he said, the matter fell to Congress to resolve: “This is the lawful place where those objections and concerns should be heard.”

But in our federal system, states — not Congress — have the final word on what state laws say: As long as states follow the Constitution, they are free to enact laws of their choice, and it is the job of state courts to interpret those laws. The federal government cannot second-guess what state law really is, except in rare circumstances, including when state courts have intentionally manipulated their law to harm disfavored parties. For example, in the civil rights era, the Supreme Court stepped in when Southern state courts denied Black individuals and civil rights groups fair hearings.

Absent such extraordinary situations, Pennsylvania law is what Pennsylvania courts say it is. The Pennsylvania Supreme Court responded to the unprecedented challenges posed by the pandemic. In good faith it attempted to enforce the state Constitution’s guarantee that “[e]lections shall be free and equal.” Hawley may disagree with that ruling. But under well settled principles of federalism, he, as a U.S. Senator, has no say in the matter.

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There’s a deeper problem here than flawed legal arguments. It’s that we suspect Hawley knows one of these arguments is legally weak and that the other is frivolous. He surely knows everything explained here about constitutional interpretation and federalism.

Bad faith partisan arguments about state legislatures and election law may sound reasoned and eloquent, but they chip away at the rule of law — laying the groundwork for future strained arguments restricting the right to vote, banning democracy-enhancing initiatives such as voter-initiated redistricting commissions and (ultimately) overturning the results of free and fair elections.

At the heart of the American experiment is a commitment to advocate different views and policies in pursuit of the common good; to do so in good faith and with good will; and to abide by the rule of law, even when our view or candidate loses out. That experiment has been under attack in recent weeks. Obviously, we must secure the Capitol against violent insurrectionists. But we also must resist pernicious and cynical legal assaults on our democracy — especially by people who know better.