Amicus brief in Moore v. Harper

Abstract

This case turns on the Elections Clause, which states that rules for “the Times, Places, and Manner of holding” congressional elections “shall be prescribed in each State by the legislature thereof.” Petitioners contend that the reference to “legislature” in the Elections Clause means that state legislatures, when adopting these regulations, are unconstrained by substantive limits imposed by the state’s constitution and may act independently of any other branch of the state’s government. Respondents contend that a state legislature is constituted by the state’s constitution and thus constrained to follow requirements it imposes. On Respondents’ interpretation, the state legislature has no authority to act, and arguably no existence, outside the legal framework of the state constitution that created it.

Which of these interpretations is consistent with the original public meaning of the Elections Clause? That question cannot be answered simply by gazing at the text, which does not explain how those words would have been understood when the Constitution was adopted. To settle the matter, we must also ask what the historical evidence shows about how the Clause would have been understood when the Constitution was adopted in light of the public standards of the eighteenth century.