Moore v. Harper

 ELECTION LAW

Did the North Carolina Courts Violate the Elections Clause by Ruling That the Legislature’s Map for Congressional Districts Violated the State Constitution and Issuing Their Own Temporary Replacement?

 CASE AT A GLANCE

In November 2021, the North Carolina legislature adopted a new map for its congressional districts. The North Carolina Supreme Court ruled that the map violated the state constitution; however, and pursuant to state law, a lower state court issued a temporary replacement map. State legislative leaders and other state officials challenged the state-courts’ power to override the legislature’s congressional map, arguing that the state-courts’ actions violated the Elections Clause in the U.S. Constitution.

 Moore v. Harper
Docket No.21-1271

Argument Date: December 7, 2022 From: The North Carolina Supreme Court

by Steven D.Schwinn
University of Illinois Chicago School of Law, Chicago, IL

 Introduction

The Elections Clause says that a state’s “Legislature” has authority to regulate federal elections, including drawing legislative maps for congressional districts. Legislative leaders and state officials argue that this means that the legislature, and the legislature alone, has plenary power to regulate elections in whatever ways it wants. Voters and voting-rights groups counter that the “Legislature” refers to the entire state lawmaking apparatus, consistent with state law and the state constitution, as interpreted and enforced by the state courts. 

Issue

Does the Elections Clause give plenary power to a state legislature to regulate federal elections, without regard to state law and its own state constitution, as interpreted by the state courts? 

Facts

On November 4, 2021, the North Carolina General Assembly enacted a new map for the state’s congressional districts. Individual voters and voting-rights groups sued state legislative leaders and other state officials in state court to halt the state’s use of the map, however, alleging that it amounted to an extreme partisan gerrymander in violation of the North Carolina Constitution. (The plaintiffs also challenged the state legislative maps, but those challenges aren’t a part of this case.) 

Pursuant to state law, the chief justice of the North Carolina Supreme Court appointed a three-judge panel to preside over the case. (North Carolina law provides that lawsuits “challenging the validity” of legislative maps shall be heard by special three-judge panels.) The court declined to halt the state’s use of the map, reasoning that voters and voting-rights groups were unlikely to establish standing and that their claims were nonjusticiable political questions.

The voters and voting-rights groups then sought relief in the North Carolina Supreme Court. The state supreme court granted a preliminary injunction, delayed the state’s primary election until May, and remanded the case to the trial court for expedited proceedings.

On remand, the three-judge trial court unanimously found that the map was an “extreme partisan outlier[]” resulting from “intentional, pro-Republican partisan redistricting.” The court found that the map was “intentionally and carefully designed to maximize Republican advantage.” But the court again ruled that partisan gerrymandering claims were nonjusticiable political questions, and again upheld the map.

The North Carolina Supreme Court reversed. The state high court first ruled that the voters and voting-rights groups had standing and that their claims were justiciable. On the merits, the court ruled that the map violated several provisions of the state constitution. In short, the court held that the map violated the voters’ rights “to cast votes that matter equally.”

The court considered the legislative leaders’ argument that the Elections Clause in the U.S. Constitution barred the court’s review of the map. But the court ruled that the legislative leaders waived that argument, because the legislative leaders hadn’t raised it in the trial court. Still, the court wrote that the argument was “repugnant to the sovereignty of states, the authority of state constitutions, and the independence of state courts.”

The state supreme court remanded the case to the trial court. Pursuant to state law, the court provided the state legislature “the opportunity to submit new congressional and state legislative districting plans that satisfy all provisions of the North Carolina Constitution.” (Under state law, if a state court concludes that a map is unconstitutional, it must give the legislature at least two weeks to “remedy [those] defects.”)

The state legislature enacted a new congressional map and submitted it to the trial court for review. The trial court ruled that this new map, too, violated the state constitution. Pursuant to state law, the trial court then adopted a map drawn by three special masters (which the court appointed) for use in the 2022 election only. (Under state law, if a state court rules that a map is unconstitutional, and if the legislature fails to “remedy [those] defects,” “the court may impose an interim districting plan for use in the next general election only.”) The court’s map adjusted the legislature’s proposed map, but only as necessary “to bring it into compliance” with the state constitution.

The legislative leaders sought a temporary stay of the trial court’s order in the North Carolina Supreme Court. But the state high court denied the motion.

The legislative leaders then sought emergency relief at the U.S. Supreme Court, arguing that the state courts’ rulings violated the Elections Clause in the U.S. Constitution. (This is the same argument that the legislative leaders raised at the North Carolina Supreme Court.) The Court declined to intervene, although four justices acknowledged the importance of the issue and expressed interest in hearing the case on its regular docket. The Court later agreed to hear the case.

In the meantime, the legislative leaders’ appeal remains pending before the state supreme court. The court heard oral argument on October 4. A decision is expected later this year.

Case Analysis

This case tests the role of “the Legislature” in federal elections under the Elections Clause of the U.S. Constitution. That clause reads in full,

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of ch[oo]sing Senators.

The legislative leaders argue first that the plain language of the clause means that only a state “Legislature” can set the rules for federal elections, including drawing the state’s congressional map. The leaders say that the Constitution’s Framers used this language deliberately, as evidenced by their consideration and rejection of a plan to delegate this authority instead to each state as a whole. (This alternative would have included each states’ entire lawmaking apparatus, including state-court judicial review of a state legislature’s actions, and not just a state “Legislature.”) They claim that this reading—that state legislatures have the exclusive authority to regulate federal elections—makes sense in the context of our federalism system. According to the leaders, that’s because state constitutional limits (enforced by the state courts) have no force “against acts governed by the federal Constitution.” The leaders say that this reading is also consistent with early state practice, when “[t]he vast majority of States—21 out of 24, by 1830—did not impose any express state-constitutional restrictions on the regulation of federal elections.” They say that this reading is consistent with Court precedent, too.

The legislative leaders argue next that the North Carolina legislature did not delegate its authority to regulate federal elections to the state courts. They say that the state legislative mechanism authorizing state-court judicial review of the legislature’s congressional map itself violates the Elections Clause (because the legislature cannot delegate its exclusive power over federal elections at all). But even if the legislature can delegate some of its power, the leaders claim that the state-court rulings in this case far exceeded that delegable power, because their rulings amounted to “unmoored policy determination[s] deciding how much partisanship is permissible in redistricting.”

The voters and voting-rights groups counter (in two separate briefs) that the North Carolina legislature properly regulated federal elections by enacting state law that delegated authority to the state courts to review congressional districting to ensure that it complies with the state constitution. They say that the state courts acted pursuant to that authority in striking the legislature’s congressional map and issuing a temporary one. And they assert that the Court has no authority to second-guess the state courts over their own interpretation of state law or their own state constitution.

The voters and voting-rights groups argue next that even if the Court addresses the defendants’ arguments, those arguments are wrong. The voters contend that the text, history, and precedent all demonstrate that “the Elections Clause does not free state legislatures from the requirements of their state constitutions,” as interpreted by their state courts. As to text, the voters argue that “[a]t the founding, the word ‘legislature’ was universally understood to mean a body created and constrained by its constitution” and subject to ordinary and widely practiced judicial review by state courts. As to history, they say that over three-quarters of all state constitutions adopted or amended soon after ratification directly regulated federal elections, and ever since states have regulated federal elections through their constitutions. As to precedent, they contend that the Court has consistently ruled that state legislatures are bound by their constitutions when they regulate federal elections.

Finally, the voters and voting-rights groups argue that the legislative leaders’ theory would upend the way states currently regulate elections and lead to significant and widespread election problems. They say that the leaders’ theory could lead to confusion, protracted litigation, and even separate state and federal elections; it could also nullify state constitutional provisions that regulate or touch on federal elections and eliminate any judicial remedy to ensure that state legislatures follow their own laws. According to the voters, the leaders’ attempts to avoid these problems by cabining their theory only underscore its implausibility. For example, the voters say that the leaders’ concession that state legislatures must follow “procedural” constitutional constraints, but not “substantive” constitutional constraints, has no basis in text, structure, history, or precedent. The voters say the same for the leaders’ distinction allowing state-court rulings that enforce “specific” rules but not “open-ended” ones.

Significance

This case tests a novel approach to state legislative power over congressional elections, called the independent state legislative theory. That theory holds that state legislatures have plenary power over congressional elections, regardless of the constraints imposed by their own state constitutions. The strongest version of the theory says that state legislatures have absolute control over these elections, irrespective of any constraints in their state laws or state constitutions. This could mean, for example, that state legislatures acting alone could draw congressional districts or establish rules for congressional elections that would otherwise violate substantive individual rights and procedural requirements in their state laws and state constitutions—and that the state courts and other state authorities would be powerless to override them. Weaker versions of the theory hold that state legislatures have principal control over these elections, but that state law or state constitutions can impose some constraints. For example, weaker versions may require the legislature to follow certain procedures or limit state-court review of a legislature’s action so that the state courts don’t override the legislature’s policy choices.

In modern times, the theory had its highest-profile appearance at the Court in Chief Justice William Rehnquists’s concurring opinion in Bush v. Gore, 531 U.S. 98 (2000). Chief Justice Rehnquist concurred with the per curiam decision reversing the Florida Supreme Court’s order requiring manual recounts in that hotly contested election. But he invoked an alternative basis for that conclusion: the Electors Clause. That clause, like the Elections Clause, uses the term legislature but for a different purpose. It provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” electors for president and vice president. Quoting a much earlier case, McPherson v. Blacker, 146 U.S. 1 (1892), Chief Justice Rehnquist wrote that the Electors Clause “convey[s] the broadest power of determination” and “leaves it to the legislature exclusively to define the method” of appointment. A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.” This was not the opinion of the Court, however; instead, Chief Justice Rehnquist wrote only for himself and Justices Antonin Scalia and Clarence Thomas.

More recently, Chief Justice John Roberts fiercely defended a version of the theory in his dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015). Chief Justice Roberts, at great length, traced the text, history, and precedent of the Elections Clause to argue that an independent redistricting commission, created by a voter-driven ballot initiative, impermissibly stripped authority from the state legislature to draw congressional districts. Chief Justice Roberts seemed to articulate a relatively weaker version of the theory, however, which might allow for some restrictions on a state legislature (in particular, procedural restrictions). He was joined in his dissent by Justices Scalia, Thomas, and Samuel Alito. The Court in that case, after its own exhaustive examination of the text, history, and precedent of the Elections Clause, flatly rejected the theory. The Court instead held that “the Legislature” includes the state’s broader lawmaking process, including, in that case, ballot initiatives.

(As the competing opinions in Arizona State Legislature suggest, text, history, and precedent will play important roles in this case. Especially history. The parties sharply disagree about the original meaning of “the Legislature” in the Elections Clause. As so much recent scholarship has demonstrated, the plaintiffs have the far better case. Still, look for the Court to probe the historical evidence on both sides.)

Most recently, in this very case, the theory had an appearance when the Court first declined to intervene on an emergency basis. Justice Brett Kavanaugh concurred and wrote that “the underlying Elections Clause question… is important” and that the Court should “definitively resolve it.” Justice Alito, joined by Justices Thomas and Neil Gorsuch, dissented and argued that the North Carolina courts’ rulings violated the Elections Clause (or at least that the defendants’ “argument is stronger”).

All this means that four or five justices already seem to endorse some version of the independent state legislature theory.

If the Court adopts the theory, the implications could be revolutionary. As the plaintiffs and their amici explain, the theory could completely upend how we conduct elections. The theory could threaten everything from state-court-ordered redistricting (as in this case) to independent commissions (as in Arizona State Legislature) to routine executive enforcement of state election law (for example, when a state executive officer orders accommodations to protect the right to vote). At the extreme, the theory could empower a state legislature to disregard any state statutory or constitutional provision and to bypass any other coordinate branch of state government. Any efforts to cabin the theory to avoid some of these results could create their own problems, as the plaintiffs explain in response to the defendants’ suggested limits.

And more. If the Court adopts the independent state legislature theory as to the Elections Clause, some state legislatures could read that as an open invitation to apply the theory to the Electors Clause. Unless the Court somehow cabined such a ruling, state legislatures could read such a ruling to authorize them to appoint presidential electors any way they see fit, irrespective of the popular vote in their state. This was one theory that former president Donald Trump’s team pushed when it tried to persuade certain state legislatures to appoint their electors to him in the 2020 presidential election. If the Court adopts the theory, it could, as a practical matter, empower such a move in the next presidential election. (To be sure, there are textual differences between the Elections Clause and the Electors Clause such that the independent state legislature could apply differently. But that might not matter to a state legislature bent on regulating an election in a particular way or appointing electors to a particular candidate.)

With all this at stake, there is an easy way for the Court to avoid these problems, while still acknowledging that state legislatures play an important role in regulating congressional elections. The Court could simply recognize that the North Carolina legislature properly regulated federal elections by delegating authority to review congressional districting to the state courts. The Court could issue such a ruling without determining the precise scope or sweep of the state legislature’s authority; it could simply acknowledge that the state legislature has regulated congressional elections and that the state’s lawmaking apparatus acted consistently with its regulatory scheme.

ATTORNEYS FOR THE PARTIES

For Petitioners Timothy Moore, et al.(David H. Thompson, 202.220.9600)

For Respondents Thomas Griffith, John Danforth, Larry Thompson, Barbara Comstock, Peter Keisler, Stuart Gerson, et al.(Richard Douglas Bernstein, 301.775.2064)

For State Respondents (Sarah Gardner Boyce, 919.716.6400)

For Respondent Common Cause (Neal Kumar Katyal, 202.637.5528)

For Respondents Rebecca Harper, et al.(Abha Khanna, 206.656.0177)

For Respondent North Carolina League of Conservation Voters, Inc.(Zachary Charles Schauf, 202.639.6000)

AMICUS BRIEFS

In Support of Petitioners Timothy Moore, et al.

• America First Legal Foundation (Jonathan F. Mitchell, 512.686.3940)
• America’s Future, Inc. (William Jeffrey Olson, 703.356.5070)
• American Legislative Exchange Council (Lee Elton Goodman, 202.719.7000)
• APA Watch (Lawrence J. Joseph, 202.355.9452)
• Arkansas, Arizona, Alabama, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Oklahoma, South Carolina, Texas, and Utah (Nicholas Jacob Bronni, 501.682.6302)
• Citizens United, Citizens United Foundation, and the Presidential Coalition (Gary Michael Lawkowski, 703.965.0330)
• Claremont Institute’s Center for Constitutional Jurisprudence (John C. Eastman, 909.257.3869)
• Honest Elections Project (Cameron Thomas Norris, 703.243.9423)
• Lawyers Democracy Fund and State Legislators (David B. Rivkin Jr., 202.861.1731)
• National Republican Redistricting Trust (Phillip Michael Gordon, 540.341.8808)
• Public Interest Legal Foundation (John Christian Adams, 317.203.5599)
• Republican National Committee, NRCC, North Carolina Republican Party (Jason Brett Torchinsky, 540.341.8808)
• Restoring Integrity and Trust in Elections, Inc. (John Matthew Gore, 202.879.3939)
• Senator Kim Ward, the Majority Leader of the Pennsylvania Senate, and the Republican Caucus of the Pennsylvania Senate (Anthony R. Holtzman, 717.231.4570)
• Taxpayers for Honest Elections (David Stevenson Walker II, 984.200.1930)
• White House Watch, a project of United States Public Policy Council, et al. (including 33 Individuals) (David William Telford Carroll, 614.423.9820)

In Support of Respondents

• American Bar Association (Faith Elizabeth Gay, 212.390.9000)
• American Civil Liberties Union, the ACLU of North Carolina, the Rutherford Institute, and the Niskanen Center (Ari Joseph Savitzky, 212.549.2681)
• Anti-Defamation League, the Sikh Coalition, the Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism, and Men of Reform Judaism (John Barney Harris, 212.705.4823)
• Benjamin L. Ginsberg (Marcos Daniel Jimenez, 305.740.1975)
• Bipartisan Group of Former Public Officials, Former Judges, and Election Experts from Pennsylvania (Mary B. McCord, 202.661.6607)
• Boston University Center for Antiracist Research and Professor Atiba R. Ellis (Rebecca MacDowell Lecaroz, 617.856.8200)
• Brennan Center for Justice at NYU School of Law (Ellyde Roko Thompson, 212.849.7344) 
• Campaign Legal Center, Democracy 21, End Citizens United//Let America Vote Action Fund, National Council of Jewish Women, Inc., OneVirginia2021, RepresentUs, Republican Women for Progress, Unitarian Universalists for Social Justice, and Voters Not Politicians (Paul March Smith, 202.736.2200)
• Carolyn Shapiro, Nicholas O. Stephanopoulos, Daniel P. Tokaji (Theresa Jeane Lee, 845.323.6706)
• Charles Plambeck and Joni Walser (H. David Rosenbloom, 202.862.5037)
• Constitutional Accountability Center (Brianne Jenna Gorod, 202.296.6889)
• Current and Former Election Administrators (Karl J. Sandstrom, 202.654.6202)
• Democracy and Race Scholars (Angela Marie Liu, 312.646.5800)
• District of Columbia, Illinois, et al. (Caroline Sage Van Zile, 202.724.6609)
• Donetta Davidson, Tracy Howard, Neal Kelley, Roxanna Moritz, Helen Purcell, Al Schmidt, DeForest Soaries, and Janice Winfrey (Mark Alexander Packman, 202.772.2320) 
• Eugene H. Goldberg (Eugene H. Goldberg, 516.485.9344)
• FairDistricts Now (Gregory L. Diskant, 212.336.2000)
• Former Republican Elected and Executive Branch Officials (Charles Rothfeld, 202.263.3233)
• Gov. Arnold Schwarzenegger (David C. Frederick, 202.326.7900)
• Hon. Rafael Hernandez Montañez, in his official capacity as Speaker of the Puerto Rico House of Representatives (Jorge Martinez-Luciano, 787.999.2972)
• Human Rights Watch (Rishi Nachiketa Zutshi, 212.225.2085)
• Law Forward, et al. (Mel Barnes, 920.740.1816)
• Lawyers’ Committee for Civil Rights Under Law, Advancement Project, Asian American Legal Defense and Education Fund, Asian Americans Advancing Justice, Demos, Latinojustice, Leadership Conference, National Association for the Advancement of Colored People, National Education Association, National Urban League, Native American Rights Fund, New York County Lawyers’ Association, North Carolina State Conference of the NAACP, People for the American Way, and the Workers Circle (Ezra David Rosenberg, 202.662.8600) 
• Lawyers Defending American Democracy (Gershon Michael Ratner, 301.469.8000)
• League of Women Voters of the United States and Leagues of Women Voters Representing 50 States and the District of Columbia (Jonathan Lee Sherman, 845.596.9081)
• Local Government Law Professors (Joshua Aaron Rosenthal, 330.607.0730)
• Making Every Vote Count Foundation and the Leadership Now Foundation (Robert Allen Long Jr., 202.662.5612)
• Michael L. Rosin (Michael Nicholas Donofrio, 213.995.6800)
• NAACP Legal Defense & Educational Fund, Inc. (Stuart Charles Naifeh, 917.574.5846)
• National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association (John J. Korzen, 336.758.5832)
• North Carolina Senator Daniel T. Blue Jr. and North Carolina Representative Robert T. Reives II (Seth P. Waxman, 202.663.6800) 
• Professor Derek T. Muller (Daniel Martin Sullivan, 646.837.5151)
• Professor Evan Bernick (Anton Metlitsky, 212.326.2000)
• Professors Akhil Reed Amar, Vikram David Amar, and Steven Gow Calabresi (Vikram David Amar, 217.244.8446)
• Public Citizen (Scott Lawrence Nelson, 202.588.1000)
• Retired Four-Star Admirals and Generals, and Former Service Secretaries of the U.S. Armed Forces (Ilana Hope Eisenstein, 215.656.3300)
• Richard L. Hasen (Richard Hasen, 310.206.3103)
• Scholars of the Founding Era (Jonathan Hillel Hurwitz, 212.373.3254)
• Scholars of State Constitutional Law (Christopher Jason Cariello, 212.506.5000) 
• Secretaries of State of Colorado, et al. (Eric Reuel Olson, 720.508.6548)
• Senator Amy Klobuchar, et al. (David A. O’Neil, 202.383.8000)
• State Constitutional Historians Lawrence Friedman and Robert F. Williams (Michael Julian Gottlieb, 202.303.1442)
• Stephen M. Shapiro (Stephen Mark Shapiro, 301.229.6241) 
• U.S. Senator Sheldon Whitehouse and Representative Henry “Hank” Johnson Jr. (Gerson H. Smoger, 510.531.4529)
• United States (Elizabeth B. Prelogar, Solicitor General, 202.514.2217) 
• William M. Treanor (Brian Adair Sutherland, 415.543.8700)
• Women4Change Indiana, Inc. (Harmony Ann Mappes, 317.237.8246) 

In Support of Neither Party

• Conference of Chief Justices (Carter G. Phillips, 202.736.8270) 
• Group of New York Voters (Misha Tseytlin, 608.999.1240)
• Hon. John R. Ashcroft (Jesus Armando Osete, 573.751.4875) 
• Independent Redistricting Commission (Brett William Johnson, 602.382.6312)
• Wisconsin Voter Alliance and Pure Integrity Michigan Elections (Erick G. Kaardal, 612.465.0927)