Abortion law upheld by minority vote [UPDATED]

The Volokh Conspiracy ^ | November 1, 2014 | Will Baude

[right-wing agnostic]

There have been a lot of abortion-related cases in the news lately, but last week I noticed this case from the Supreme Court of North Dakota that struck me as particularly noteworthy. The court upheld a state abortion law against a federal constitutional challenge by a 2-3 vote. That is, two justices in favor, three against, and the two won. (Original link, and more links, all via Howard Bashman.)

Apparently North Dakota has a constitutional rule that requires a supermajority to invalidate a statute, and it applies that rule not only to state constitutional claims to federal constitutional claims. My first reaction was huh, that’s weird. My second reaction was can they do that?

I’ve read a few articles about supermajority rules generally, but none of them really seemed to get at whether a state could impose such a rule on federal claims on its own initiative. (A lot of the citations are in this recent essay by Jeremy Waldron; Waldron doesn’t really answer the doctrinal question of whether such a rule can control federal claims). I also noticed a series of dissenting opinions by various justices questioning the validity of the supermajority rule, but they didn’t tend to be doctrinally detailed.

[mikrofon]

If a supermajority rule (i.e. 2/3rds) applies to a body of 5, it basically becomes a hyper-majority rule requiring at least an 80% vote (all present).