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
- ↑ 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.
