2
MOORE v. HARPER
KAVANAUGH, J., concurring
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.1 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
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1 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.
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