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11/29/2022

Ed Whelan on Moore v. Harper [Updated]
Michael Ramsey

At NRO Bench Memos, Ed Whelan: Thinking Through Moore v. Harper (part 1 and part 2).  From the introduction:

On December 7, the Supreme Court will hear oral argument in Moore v. Harper. At issue in the case is the meaning of the so-called Elections Clause set forth in Article I, section 4 of the Constitution. The case has elicited a lot of apocalyptic rhetoric, often unaccompanied by any hint of the constitutional text in question. In this post and follow-on posts, I hope to begin working my way through the issues that the case presents....

1. Let’s start with the facts of the case. In November 2021, after receiving the 2020 census data, the North Carolina legislature enacted a new redistricting map for federal elections for its seats in the U.S. House of Representatives. Various plaintiffs sued, alleging that the new redistricting map violated the North Carolina constitution. In February 2022, the North Carolina supreme court ruled in favor of plaintiffs and ordered the state legislature to submit a remedial redistricting map. After the state legislature did so, a state superior court rejected the legislature’s remedial map and adopted a map proposed by special masters it had appointed.

2. The Elections Clause of the Constitution states:

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 Places of chusing Senators.

From what I can tell, everyone* agrees that a state legislature’s enactment of a new redistricting map for House seats is an exercise of this Elections Clause. (The notion, I gather, is that determining that House members will be elected by district and defining what the congressional districts are is a necessary part of the “Manner of holding Elections for … Representatives.”)

One big issue in the case is what it means for congressional districts to “be prescribed … by the [State] Legislature.” Among other things: What counts as the “the Legislature”? Can a state constitution impose substantive limits on the Legislature’s authority under the Elections Clause? What role do the state courts have in interpreting and applying any such limits? Can the Legislature delegate its power to someone else or enact enforceable limits on how it exercises its power?

Later on, he has this helpful summary of the petitioners' position:

a. The word “Legislature” in the Elections Clause (and in other provisions of the federal Constitution that refer to the “Legislature” of a state) means the representative body that, pursuant to the state constitution, makes the laws in a state.

b. The Elections Clause assigns to the state legislature the authority to prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives.” When a state legislature exercises that power, it is exercising federal authority.

c. A state constitution may prescribe the procedure, or method, by which a state legislature makes a legislative enactment. So provisions of the constitution that, say, require a bicameral vote or subject legislation to a governor’s veto, may apply to legislation under the Elections Clause.

d. But the state constitution may not impose substantive limits on what a state legislature may enact pursuant to its Elections Clause authority.

e. A state court may well have the authority to review a law enacted by a legislature pursuant to its Election Clause authority. But if and when it does so, the question it is reviewing is whether that law complies with the federal Constitution and federal statutes, not whether it complies with the state constitution.

... The respondents’ position, by contrast, is that the word “Legislature” means a body that is not just created by the state constitution but also always constrained by it, including in its exercise of authority under the Elections Clause. Therefore, state courts may invalidate a law enacted pursuant to the Elections Clause on the ground that it violates the state constitution.

And in conclusion (to the second post):

Petitioners argue—correctly, I believe—that under respondents’ position a state constitution could entirely exclude the state legislature from having any role in prescribing the rules governing federal elections. The state constitution could provide, for example, its own set of rules for federal elections, and it could state that any addition or revision to those rules could be made only by popular referendum. With respect to redistricting specifically, the state constitution could confer redistricting authority directly on the governor, or on the state supreme court, or on some other body.

Respondents’ position that a state legislature is always constrained by its state constitution would apply as well to the legislature’s role under the Electors Clause and in the Article V amendment-ratification process. That would mean that the people by referendum could, say, adopt a constitutional provision that entirely excludes the state legislature from the appointment of presidential electors and that instead confers on the governor or the state supreme court justice plenary authority to appoint the state’s electors. It would also mean that the southern states before the Civil War could have embedded in their constitutions a provision barring the legislature from ever voting to ratify an amendment that ended slavery or prohibited discrimination on the basis of race.

I will emphasize that I do not present these consequences as some sort of proof that respondents’ position is wrong. Petitioners’ own position is also vulnerable to illustrations of how it could be exploited in unseemly ways. But these consequences do, I think, suggest that the intuition that state legislatures are of course subject to state constitutional limitations when they exercise federal constitutional roles might not be right.

UPDATE:  Ed Whelan has added a short Part 3 to the series.  It makes this worthwhile concluding point:

Anyone on either side who is inclined to view this case through a partisan lens should be aware that there is no reason to think that a victory for the Republican petitioners in North Carolina would be a victory for Republicans more broadly. As this Wall Street Journal article discusses, if the New York legislature’s gerrymander of congressional districts had been allowed to stand in the face of contrary state constitutional provisions, Democrats would likely have had a net gain of seven House seats (a 22-4 advantage rather than the 15-11 margin that resulted from the elections). Republican gains in North Carolina and perhaps some other states might have offset the Democratic gains in New York. But neither in the short term nor especially in the longer term is it at all clear which political party would benefit nationally from a victory for petitioners.