Justices, Advocates Look to Different Histories in Voting Case

The parties’ drastically different views of the past in a Supreme Court argument over the power to control federal elections highlight the limits of using history as an interpretative tool, even as it’s increasingly invoked by conservative justices as the most important way to view constitutional issues.

Legal conservatives for decades have elevated the use of history as an objective check on judges’ power to bend the law to their own political preferences. And the new 6-3 conservative high court majority has leaned into it as the lodestar for constitutional disputes. Litigants—on the left and right—have followed their lead, offering conflicting views of history for the justices to consider.

Wednesday’s argument in Moore v. Harper—and the competing parties’ insistence that they’ve got it right—highlight the difficulty of identifying the “correct” history that should govern controversial problems.

“Courts and attorneys are ill-suited for such an inquiry,” University of Idaho law professor Michael Smith said.

Guided By History

Last term, the justices solidified the need for courts to look to history to solve modern constitutional problems—from guns to religion to abortion.

Guided “by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term ‘liberty,’” the justices said in deciding 5-4 that the Constitution didn’t protect the right to an abortion in Dobbs v. Jackson Women’s Health Organization.

Given that emphasis, it was no surprise that Wednesday’s arguments in a blockbuster redistricting dispute out of North Carolina focused almost entirely on what the Founders thought the federal Elections Clause meant when it was ratified. But the parties in Moore v. Harper differed in what historical evidence mattered, and how it should impact the case.

North Carolina legislative leaders point to the term “legislature” in the Elections Clause to argue that state courts and their interpretations of state constitutional provisions have little to no place in setting federal elections rules.

The other side, including the federal government, instead looked to what the states did following the ratification of the US Constitution to illustrate what the Founders intended to do.

The argument North Carolina legislative leaders are making “would take off the table 233 years of history in this country,” said US Solicitor General Elizabeth Prelogar, who argued against broad and potentially unchecked powers for state legislatures.

“We read the history very differently than my friends on the other side,” said Cooper & Kirk partner David Thompson, who argued for a limited role for state courts and other officials in federal elections.

Justice Sonia Sotomayor even suggested Thompson was manipulating the facts to “knock down” the other side’s historical facts. “If you rewrite history, it’s very easy to do,” Sotomayor said.

Different Histories

BakerHostetler’s Andrew Grossman said the parties are looking at two different kinds of historical evidence, which is why they come to such different conclusions.

The distinction is subtle, but important.

Those arguing for more power for state courts and other officials point to historical practice—that is, what states and legislators did at the time of the founding—to try to suss out what the Elections Clause was intended to mean.

On the other side, the legislators say the most important clue to deciding what the clause means is to try to determine what the common understanding of the term “legislature” was at the time it was ratified.

Justice Brett Kavanaugh, in particular, wondered how the court should use those competing histories.

“What do we do with that historical practice in thinking about how to analyze this question?” Kavanaugh asked.

Historical practice can be helpful in understanding constitutional history, but typically the text takes primacy, Grossman said.

Historical practice can help confirm what the Founders meant, “but it can’t undermine what the text and the founding era history show to be the case,” Thompson said during arguments.

Rosemarie Zagarri, a historian at George Mason University who filed an amicus brief in the case, said it’s wrong to look only at “literary historical facts which can lead to erroneous understandings of our Constitution now.”

Instead, Zagarri said it is important to look beyond isolated terms and think about the principles underlying the use of those terms.

Inherent Conflict

Regardless of who is right, the debate shows how lawyers, in particular, at ill equipped to resolve the dispute, Smith said.

Attorneys tend not to be trained historians and “are ethically obligated to present historical evidence in a manner that supports their client’s preferred interpretation,” Smith said.

The judicial search for the correct version of history “inherently conflicts with the adversarial process, where different parties advocate their own interpretations of history, often in a goal-oriented manner that fails to canvas all of the evidence,” he said.

“This leaves the Court with multiple potential interpretations, each presented by advocates rather than objective historians,” Smith said.