Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

21  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  The persuasiveness of the concurring opinion’s finding of an Article II violation depends on the answer to two questions. First, should the standard by which federal courts review state court inter- pretations of state law be more aggressive than usual in the context of resolving presidential election contests? Second, how unreasonable were the Florida Supreme Court’s interpretations of state election law in Bush ? The stronger the case for aggressive review and the more unreasonable the state court’s interpretations, the more persuasive is the concurring opinion’s determination that Article II was violated. As to the standard of review, Chief Justice Rehnquist begins by conceding that, “[i]n most cases, comity and respect for federa- lism compel us to defer to the decisions of state courts on issues of state law.” 55 He goes on to observe, however, that because Article II explicitly empowers the state legislature to select the manner of appointing electors and because the federal safe harbor provision ap- plies only when the state election law was in place on the day of the election, “the text of the election law itself, and not just its interpreta- tion by the courts of the States, takes on independent significance.” 56 Rehnquist does not go so far as to suggest that federal courts should engage in de novo interpretation of state election law in the context of a presidential election contest. Indeed, it would be hard to imagine Rehnquist, Scalia, and Thomas–Justices in the vanguard of the 1990s renaissance in constitutional federalism 57 –subscribing to the proposi- tion that federal courts owe no deference whatsoever to state court interpretations of state law, regardless of the context. Instead, the concurring opinion argues for reduced deference. This is an odd interpretation of Article II. These conservative Justices ordinarily profess a commitment to an originalist methodo- logy of constitutional interpretation. 58 Yet, they provide no evidence 55 Bush , slip opinion at 2 (Rehnquist, C.J., concurring). This principle is about as well-established as any can be. See, e.g., Murdock v. Memphis, 87 U.S. (20 Wall.) 590 (1875). See also Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967) ( “the state’s highest court is the best authority on its own law”). 56 Id. at 3. 57 See, e.g., United States v. Morrison, 120 S. Ct. __ (2000) (restrictive reading of commerce clause power); Alden v. Maine, 527 U.S. 706 (1999) (state immunity from suit in state court); City of Boerne v. Flores, 117 S.Ct. 2157 (1997) (re- strictive reading of Section 5 power); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (state immunity from suit in federal court under Eleventh Amendment); Printz v. United States, 117 S.Ct. 2365 (1997) (tenth amendment prohibition on federal commandeering of state executive officials). 58 See, e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 370-71 (1995) (Thomas, J., concurring); id. at 372 (Scalia, J., dissenting).