This Report summarizes cases granted review on June 27 and 30, 2022 (Part II).

Case Granted Review: Moore v. Harper, 21-1271

Moore v. Harper, 21-1271. Petitioners ask the Court to adopt what has come to be known as the “independent state legislature” theory. Their question presented is: “Whether a State’s judicial branch may nullify the regulations governing the ‘Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,’ U.S. CONST. art. I, §4, cl. 1, and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election.” Redistricting in the wake of the 2020 census, the North Carolina General Assembly enacted a new congressional elections map. It was promptly challenged by various entities (respondents here) who alleged that the map was a partisan gerrymander that violated the state constitution. A three-judge trial court declined to preliminarily enjoin the map, but the North Carolina Supreme Court granted a preliminary injunction. After further proceedings, the trial court rejected the challenge and granted judgment for petitioners. The North Carolina Supreme Court reversed and enjoined the map, holding that it was a partisan gerrymander in violation of four provisions of the state constitution. 2022 WL 496215.

In rejecting petitioners’ Elections Clause challenge, the North Carolina Supreme Court cited Rucho v. Common Cause, 588 U.S. ­­­___ (2019), for the proposition that “state constitutions can provide standards and guidance for state courts to apply” in addressing partisan gerrymandering, and claimed “a long line of decisions” by the U.S. Supreme Court confirms the more general proposition that “state courts may review state laws governing federal elections to determine whether they comply with the state constitution.” The General Assembly responded by preparing a revised congressional map. The trial court rejected that map, however, and adopted one prepared by three Special Masters it had appointed to assist in the remedial process.  The North Carolina Supreme Court and U.S. Supreme Court denied petitioners’ motion for a stay, though four Justices wrote to note the importance of the Elections Clause issue.

Petitioners argue that “[t]o secure self-government, [the Elections Clause] vests the power to regulate federal senate and congressional elections in each State’s legislature, subject only to supervision by Congress. The state supreme court’s usurpation of that authority—pursuant to vague and indeterminate state constitutional provisions securing free speech, equal protection, and free and fair elections—simply cannot be squared with the lines drawn by the Elections Clause.” Petitioners insist that “’the Legislature’ means now what it meant [at the founding], ‘the representative body which ma[kes] the laws of the people.’” “The Constitution thus grants the state ‘Legislature’ primacy in setting the rules for federal elections, subject to check only by Congress.” Applied here, say petitioners, “[t]he North Carolina Constitution makes clear beyond cavil that ‘[t]he legislative power of the State shall be vested in the General Assembly,’ N.C. CONST. art. II, § 1 (emphasis added). And it makes clear, too, that the state judiciary is not the ‘Legislature’ in North Carolina, nor any part of it.” Nor, say petitioners, has the General Assembly delegated its lawmaking powers to the state courts. And that means that the authority to draw congressional districts cannot be “hedged or parceled out by the state’s constitution to its judiciary.” Petitioners also note that “’none of’ the state constitutional provisions invoked by the court below ‘say[ ] anything about partisan gerrymandering, and all but one make no reference to elections at all.’” Say petitioners, “It is one thing for a state court to enforce specific and judicially manageable standards, such as contiguousness and compactness requirements. It is quite another for the court to seize the authority to find, hidden within the folds of an open-ended guarantee of ‘free’ or ‘fair’ elections, rules governing the degree of ‘permissible partisanship’ in redistricting—a matter that this Court has held to be ‘an unmoored determination’ that depends on ‘basic questions that are political, not legal.’ Rucho, 139 S. Ct. at 2500–01 (quotation marks omitted).” Petitioners add that “the state courts then compounded the constitutional error by creating, and imposing by fiat, a new congressional map.”

Four sets of respondents filed briefs in opposition. We will summarize only the merits argument in the state respondents’ brief. The state respondents argue initially that “[t]wo decades ago, the North Carolina General Assembly passed a law expressly codifying the state courts’ authority to review legislative redistricting efforts. N.C. Gen. Stat. §1-267.1. At the same time, the legislature specifically authorized the state courts to ‘impose an interim districting plan’ in situations like the one giving rise to this appeal. Id. §120-2.4(a1). The North Carolina state courts thus have not ‘t[aken] it upon themselves to set’ federal-elections rules—the state legislature itself designed a statutory redistricting regime that expressly contemplates the courts’ involvement.” Even beyond that, say the state respondents, “[i]n a line of cases dating back more than a century, this Court has consistently repudiated the idea that the Elections Clause categorically forbids the involvement of nonlegislative officials in regulating federal elections.” See Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916) (upholding state referendum that rejected Ohio legislature’s congressional redistricting plan); Smiley v. Holm, 285 U.S. 355 (1932) (upholding governor’s veto of state legislature’s congressional redistricting plan); Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015) (upholding delegation of congressional districting to an independent commission). State respondents disagree that the Elections Clause “does not permit state supreme courts to invalidate redistricting plans based on ‘vague state constitutional provision,’” insisting that “[t]his argument is little more than a plea for this Court to second guess a state supreme court’s interpretation of its own state constitution.” And as to the trial court’s adoption of the Special Master’s map, the state respondents point to Growe v. Emison, 507 U.S. 25 (1993), which “establishes that state courts may adopt remedial congressional districting plans.” Finally, state respondents assert that “Petitioners’ argument is also fundamentally incompatible with bedrock tenets of federalism and democracy[,]” by “essentially switch[ing] off every state constitution insofar as it relates to federal elections.”