“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Art. I, §4, cl. 1. But can the state legislature be bound by provision of the state’s constitution? This was the question with which the Court was confronted in Moore v. Harper, 600 U. S. ____ (2023). The case presented was quite complicated. In fact, we could divide the Court’s inquiry in two. First, the Court had to assess if it had jurisdiction over the matter. Only secondly, the majority, acknowledging the Court’s jurisdiction, considered the merit, the so-called “independent state legislature theory”.
The Court, first of all must “determine as a threshold matter that … [it] ha[d] jurisdiction.” Goodyear Atomic Corp. v. Miller, 486 U. S. 174, 178 (1988). This assessment was made more difficult because of the tortuosity of the path through which the party reached the Court.
The petition for certiorari was filled by members of the North Carolina General Assembly appealing a ruling of the North Caroline Supreme Court. In 2021, the General Assembly redrawn the North Carolina’s congressional map, in light of the population growth of the State. Nonetheless, the new map was challenged in state court by different organizations, which alleged that it violated the State Constitution. The plaintiffs alleged that the map “constituted an impermissible partisan gerrymander in violation of the North Carolina Constitution” Moore v. Harper, 600 U. S. ____ (2023) (slip op. at 5). The trial court agreed that the map constituted such gerrymandering but argued that it was not justiciable under the North Carolina Constitution. Plaintiffs appealed to the State Supreme Court which reversed, holding that, notwithstanding Rucho v. Common Cause,
588 U.S. ___ (2019) (that held that gerrymandering was not justiciable in federal court), such violations of the State Constitution were justiciable in state courts. The Court instructed the General Assembly to create a new map under the supervision of the trial court. Nonetheless, the newly created map was deemed, by the trial court, not in line with what the North Carolina Supreme Court set forth in Harper I. Hence the trial court entered an order appointing a special master to draw a new map. The defendants asked an emergency relief to the Supreme Court. The request was denied, but a petition for certiorari was granted.
In the meantime, the State Supreme Court heard an appeal from the trial court order, which appointed a special master to draw a new map. The Court affirmed in part and reversed in part, agreeing “with the trial court’s determination that the General Assembly’s remedial congressional plan “fell short” of the requirements set forth in Harper I.” Ibid. (quoting Harper II, 383 N. C., at 125, 881 S. E. 2d, at 181). The legislative defendant requested a rehearing asking to overrule Harper I and the remedial holding of Harper II. The request was granted. The Court “repudiated Harper I ’s conclusion that partisan gerrymandering claims are justiciable under the North Carolina Constitution.” Ibid. and “overruled […] the “reasoning of Harper I”” but “did not “disturb . . . its judgment nor . . . alter the presently operative statutes of North Carolina.”” Id. (slip op. at 8) (quoting Second Supp. Letter Brief for Petitioners 3). Hence, the using of the original map was still enjoyed. Furthermore, the State Supreme Court “did not revisit Harper I ’s conclusion that the Federal Elections Clause does not shield state legislatures from review by state courts for compliance with state constitutional provisions” Id. (slip op. at 6).
The Court rested its jurisdiction assessment on two bases: Article III and 28 U. S. C. §1257(a).
As the Chief Justice reminded, Article III require that the parties have a “personal stake” Baker v. Carr, 369 U. S. 186, 204 (1962). In fact, this requirement is related to the necessity of a dispute “at all stages of review, not merely at the time the complaint is filed.” Genesis HealthCare Corp. v. Symczyk, 569 U. S. 66, 71 (2013) (internal quotation marks omitted). The majority considered that the “North Carolina Supreme Court’s decision to withdraw Harper II and overrule Harper I does not moot th[e] case.” Harper, 600 U. S. ____ (2023) (slip op. at 6-7).
In fact, in the view of the majority, because “the plaintiffs here sought to enjoin the use of the 2021 plans” and that “Harper I granted that relief, and in doing so rejected the Elections Clause defense at issue before us” the Court still had jurisdiction. Id. (slip op. at 7). The Chief Justice, pointing at the North Carolina rule of procedure, underlined the fact that the legislative defendants weren’t able to ask a rehearing as to Harper I, hence they couldn’t disturb the judgement neither “the force of its order striking down the 2021 plans.” Pet. for Rehearing 24. A decision sticking down Harper I¸ on the view of the majority, would in fact reinstate the 2021 map. The Chief point also at a “North Carolina statute with specific application to this proceeding” which establishes that “if “the United States Supreme Court . . . reverses” the decision in Harper I, the 2021 maps will again become “effective.”” Harper, 600 U. S. ____ (2023) (slip op. at 8) (quoting 2022 N. C. Sess. Laws p. 10, §2).
Furthermore, the Court analyzed its jurisdiction under 28 U. S. C. §1257(a). The statue gives the Court jurisdiction over “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had.” Ibid. The Chief than pointed at Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), a case that “considered [the] exercise of jurisdiction where the “federal issue . . . will survive and require decision regardless of the outcome of future state-court proceedings.” Harper, 600 U. S. ____ (2023) (slip op. at 11) (quoting Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 480 (1975)). In Cox Broadcasting, the Court had found four cases in which the Court “has treated the decision on the federal issue as a final judgment for the purposes of 28 U. S. C. §1257,” in spite of “additional proceedings anticipated in the lower state courts.” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 477 (1975). The Chief pointed at the second which included “cases . . . in which the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings.” Id., at 480.
In the view of the Court, Harper constituted such a case because, “[b]y striking down the 2021 congressional plans enacted by the General Assembly,” the North Carolina Supreme Court in Harper I ““finally decided” the “federal issue” whether the Elections Clause insulates state legislatures from review by state courts for compliance with state law.” Harper, 600 U. S. ____ (2023) (slip op. at 9). Then, “subsequent proceedings have neither altered Harper I ’s analysis of the federal issue nor negated the effect of its judgment striking down the 2021 plans.” Ibid. In fact, the decision in Harper II, doesn’t alter the first judgement, even if the North Carolina Supreme Court overruled its reasoning in relation to the interpretation of state law.
Ultimately, the majority reminds us that ““the res judicata consequences of a final, unappealed judgment on the merits” are not “altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.”” Ibid. (quoting Federated Department Stores, Inc. v. Moitie, 452 U. S. 394, 398 (1981)).
Finally, the Court retained that, because the mootness doctrine “addresses whether an intervening circumstance has deprived the plaintiff of a personal stake in the outcome of the lawsuit.” West Virginia v. EPA, 597 U. S. ___, ___ (2022) (slip op., at 15) (alterations and internal quotation marks omitted), and in this case such “intervening circumstance” didn’t “deprived the plaintiff of a personal stake”, the case was not moot. For the majority, “[t]he record shows that Harper I finally decided the Elections Clause question,” that “the judgment in that case continues to bind the parties before [the Court],” and that “the 2021 congressional maps would again take effect in North Carolina were we to reverse”. “Accordingly,” the Court concluded that it “[had] jurisdiction under both Article III and §1257(a).” Harper, 600 U. S. ____ (2023) (slip op. at 11).
The Chief Justice hance started his inquiry on the merits of the case, “whether the Elections Clause insulates state legislatures from review by state courts for compliance with state law” Ibid. In the view of the majority, the inquiry should start with the judicial authority of the courts. In fact, the question is whether the Election Clause “insulates state legislatures from review by state courts for compliance with state law” Ibid. (emphasis added).
Chief Justice Marshall
In Marbury v. Madison the Court “announced [its] responsibility to review laws that are alleged to violate the Federal Constitution”, establishing, in a very well-known form, that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” 1 Cranch 137, 177 (1803). Such duty of the “judicial department” wasn’t “fashion[ed] … out of whole cloth” Harper, 600 U. S. ____ (2023) (slip op. at 12). Chief Justice Marshall in Marbury reasoned that “[c]ertainly all those who have framed written constitutions, contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.” 1 Cranch 137, 177 (1803). The majority traced a quick list of pre-Marbury cases of state courts that held their review authority over state legislature. The judicial review “emerged cautiously,” but “it matured throughout the founding era.”, the Court remembered us. Harper, 600 U. S. ____ (2023) (slip op. at 12). The Court acknowledged that “[t]he Framers recognized state decisions exercising judicial review” Harper, 600 U. S. ____ (2023) (slip op. at 13), like John Madison, who underlined that “[a] law violating a constitution established by the people themselves, would be considered by the Judges as null & void.” 2 Records of the Federal Convention of 1787, p. 93 (M. Farrand ed. 1911).
Among the cases that the Court reviewed, the Chief Justice pointed at a 1787 North Carolina Supreme Court case in which the court asserted that ““it was clear” that the legislature could not pass an Act that “could by any means repeal or alter the constitution.”” Ibid. (quoting Bayard v. Singleton, 1 Mort. 48, 50 (1787)). In fact, as the court at the time stressed, otherwise it “would at the same instant of time, destroy their own existence as a Legislature, and dissolve the government thereby established.” Bayard v. Singleton, 1 Mort. 48, 50 (1787). The judicial review, “one of the fundamental principles of our society.” Marbury, 1 Cranch, at 176, was ““long and well established” by the time we decided Marbury in 1803” Harper, 600 U. S. ____ (2023) (slip op. at 14) (quoting Id. at 177).
The Chief then pointed at three precedents that delt with the Election Clause and the constraint that state constitutions could impose on state “Legislature”. Art. I, §4, cl. 1.
First in Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565 (1916), the Court confronted the problem of such limitation on the legislature of the State of Ohio. The General Assembly had passed a congressional map, but it was rejected by the people in a referendum. The legislature challenged the decision, but the Ohio Supreme Court refused. The Court stressed that “conferring the power therein defined upon the various state legislatures” didn’t shiel the state legislature from being subject to “a popular vote.” State ex rel. Davis v. Hildebrant, 94 Ohio St. 154, 163, 114 N. E. 55, 58 (1916). In fact, the law in question established that the State’s voters could “approve or disapprove by popular vote any law enacted by the General Assembly.” Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, 566 (1916). The Supreme Court affirmed unanimously the Ohio Supreme Court judgment.
Some years later, in Smiley v. Holm, the Court was confronted with a dispute arising from the redistricting of Minnesota in 1932. The new congressional map was vetoed by the Governor, but the Secretary of State decided to implement it notwithstanding. In this case, the Minnesota Supreme Court held that “the authority so given by” the Elections Clause was “unrestricted, unlimited, and absolute.” State ex rel. Smiley v. Holm, 184 Minn. 228, 242, 238 N. W. 494, 501 (1931). The Supreme Court reversed the judgment, holding that the “exercise of . . . authority” under the Elections Clause, “must be in accordance with the method which the State has prescribed for legislative enactments.” Smiley, 285 U. S., at 367. In fact, the Court stressed that in the Federal Constitution there is no “provision of an attempt to endow the legislature of the State with power to enact laws in any manner other than that in which the constitution of the State has provided that laws shall be enacted.” Id., at 368.
Finally, in a more recent case, the Court concluded in accordance with the principles laid down both in Hildebrant and Smiley. In Arizona State Legislature v. Arizona Independent Redistricting Comm’n, the majority of the Court held that “the people of Arizona retained the authority to create “an alternative legislative process” by vesting the lawmaking power of redistricting in an independent commission” Harper, 600 U. S. ____ (2023) (slip op. at 17) (quoting Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. 787, 817 (2015)). In fact, “The Court ruled … that although the Elections Clause expressly refers to the “Legislature,” it does not preclude a State from vesting congressional redistricting authority in a body other than the elected group of officials who ordinarily exercise lawmaking power.” Ibid., because states “retain autonomy to establish their own governmental processes.” Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. 787, 816 (2015).
In the view of the Court, “Arizona State Legislature recognized that whatever authority was responsible for redistricting, that entity remained subject to constraints set forth in the State Constitution” Harper, 600 U. S. ____ (2023) (slip op. at 18), in line with the principle that “redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking” Arizona State Legislature, 576 U. S. 787, 808 (2015). For the Court, nor the Election Clause, neither the Court ever “held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.” Id. at 817-818.
The majority responded to the Justice Thomas dissent argument, that embraced the position of the legislative defendants. In particular, the Court dismissed references to the Electors Clause of the Constitution and Leser v. Garnett, 258 U. S. 130 (1922), a case dealing with a state amendment’s ratification.
With respect to the first argument, the Court rejected any similitude between the case at issue and McPherson v. Blacker, 146 U. S. 1 (1892), a case at which the dissent pointed. In fact, the Chief stressed that in McPherson, the Court acknowledged that “in choosing Presidential electors, the Clause “leaves it to the legislature exclusively to define the method of effecting the object.”” Harper, 600 U. S. ____ (2023) (slip op. at 20) (quoting McPherson v. Blacker, 146 U. S. 27 (1892)). Nonetheless, that case “considered whether Michigan’s Legislature itself directly violated the Electors Clause (by taking from the “State” the power to appoint and vesting that power in separate districts), the Fourteenth Amendment (by allowing voters to vote for only one Elector rather than “Electors”), and a particular federal statute.” Ibid. (quoting McPherson at 8–9) (emphasis added). Furthermore, the Court underlined that the majority in McPherson acknowledged that “[t]he legislative power is the supreme authority except as limited by the constitution of the State.” McPherson, at 25.
In relation to the Leser argument, the Chief point at the substantial difference of the two cases. In that 1922 case, the Court rejected the argument that the State couldn’t ratify the Nineteen Amendment because provisions of its own Constitution forbid it.
The Court stressed that ratifying an amendment was “a federal function derived from the Federal Constitution,” which “transcends any limitations sought to be imposed by the people of a State.” Leser v. Garnett, 258 U. S. 130, 137 (1922). Nonetheless, this precedent, for the majority, doesn’t shade any new light on the matter at issue in Harper. In fact, “the legislature in Leser performed a ratifying function rather than engaging in traditional lawmaking” Harper, 600 U. S. ____ (2023) (slip op. at 21). The Court already acknowledged that distinction back in Hawke v. Smith, “which sharply separated ratification “from legislative action” under the Elections Clause.” Ibid. (quoting Hawke v. Smith, 253 U. S. 221, 228 (1920)). The lawmaking activity under the Election Clause, “is entirely different from the requirement of the Constitution as to the expression of assent or dissent to a proposed amendment to the Constitution.” Hawke v. Smith, 253 U. S. 221, 231 (1920). And in this case, the Court considered that “when state legislatures act pursuant to their Elections Clause authority, they engage in lawmaking subject to the typical constraints on the exercise of such power” and not, as “the legislature in Leser”, in a “ratifying function” Harper, 600 U. S. ____ (2023) (slip op. at 21).
In the end, the Court concluded that the “precedents have long rejected the view that legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution.” Harper, 600 U. S. ____ (2023) (slip op. at 22).
The Court confronted than the last argument of the dissent, which further assert that, whether be the “Legislature” subject to the state constitution, such constraint can be only “procedural hoops through which legislatures must jump in crafting rules governing federal elections.” Id. (slip op. at 22).
In the eye of the majority, this ““formalistic” approach”, as they define it, it’s not rooted in the Court’s precedents. Ibid. (quoting Tr. of Oral Arg. 62). In fact, the opinion of the Court in Smiley “drew no distinction between “procedural” and “substantive” restraints on lawmaking”, neither any “concern about how those [state constitutional] provisions might be categorized”, instead it held only that “state constitutional provisions apply to a legislature’s exercise of lawmaking authority under the Elections Clause” Id. (slip op. at 23).
The Court “discussed no difference between procedure and substance” Ibid., neither in Smiley¸ nor in Arizona State Legislature, because the Court focused on the concept that “legislatures must abide by “restriction[s] imposed by state constitutions . . . when exercising the lawmaking power” under the Elections Clause” at large. Ibid. (quoting Smiley, 285 U. S., at 369). Likewise, in Arizona State Legislature, the Court directly addressed the fact that “nothing in the Elections Clause offers state legislatures carte blanche to act “in defiance of provisions of the State’s constitution.””, notwithstanding if those provisions are procedural or substantive. Ibid. (quoting Arizona State Legislature, 576 U. S., at 818). In conclusion, the Chief underlined that “Smiley did not endorse” a “murky inquiries into the nature of constitutional restraints,” should they be ‘procedural’ or ‘substantive’ and that the Court “see no neat distinction today.” Id. (slip op. at 24).
Ultimately, the Court pointed yet again at “historical practice” which “confirms that state legislatures remain bound by state constitutional restraints when exercising authority under the Elections Clause.” Harper, 600 U. S. ____ (2023) (slip op. at 24). In fact, the Court has “long looked to “settled and established practice” to interpret the Constitution.” Ibid. (quoting The Pocket Veto Case, 279 U. S. 655, 689 (1929)). The Court looked at different provision in state’ constitutions which regulated federal elections. In particular, the majority pointed at “specific provisions in Maryland and Delaware”, but also “multiple state constitutions at the time of the founding” which “regulated federal elections by requiring that “[a]ll elections shall be by ballot.”” Id. (slip op. at 25) (quoting Georgia Constitution, Art. IV, §2 (1789)). Those provisions “directed the “manner” of federal elections within the meaning of the Elections Clause”, imposing hence a limitation on the “Legislature” discretion under the Clause. Ibid.
Ultimately, the legislative defendants argued that “all elections” doesn’t encompass federal ones, but only the state ones, pointing at Justice Joseph Story remarks during a Massachusetts Convention of 1820, where he asserted that state constitutional provision establishing ““manner” of federal elections” “would run afoul of the Elections Clause by “assum[ing] a control over the Legislature, which the constitution of the United States does not justify.”” Id. (slip op. at 26) (quoting Journal of the Debates and Proceedings in the Convention of Delegates 110 (1853)). Nonetheless, the majority “find no textual hook for that strained reading”, in fact, ““[a]ll” meant then what it means now”” Ibid. Furthermore, the Court reasoned that Justice Story’s remarks “reflects the views of a jurist who, although “a brilliant and accomplished man, . . . was not a member of the Founding generation.” Ibid. (quoting U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 856 (1995) (THOMAS, J., dissenting)).
The Court acknowledging that “State courts are the appropriate tribunals . . . for the decision of questions arising under their local law, whether statutory or otherwise.” Murdock v. Memphis, 20 Wall. 590, 626 (1875), underlined nonetheless that “the Elections Clause expressly vests power to carry out its provisions in “the Legislature”” and that the Court has “an obligation to ensure that state court interpretations of that [state] law do not evade federal law.” Id. (slip op. at 26-27). In fact, there exists “areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law.” Bush v. Gore, 531 U. S. 98, 114 (2000) (Rehnquist, C. J., joined by Thomas, Scalia, JJ., concurring).
The Court, hence, because “the questions presented in this area are complex and context specific”, “h[e]ld only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” Harper, 600 U. S. ____ (2023) (slip op. at 28-29). In light of the fact that legislative defendants disclaimed “the argument that th[e] Court should [have] reassess[ed] the North Carolina Supreme Court’s reading of state law”, in fact “counsel reiterated that such an argument was “not our position in this Court”” Id. (slip op. at 29) (quoting Tr. of Oral Arg. 54), the Chief “decline to address whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause” Ibid.
In the end, the Court, acknowledging that the “Legislative” is “the mere creature of the State Constitution[], and can’t[] be greater than [its] creator[]” 2 Farrand 88, rejected the legislative defendants’ so-called “independent state legislative theory” because it’s not rooted in the Election Clause, nor in the Court’s precedents.
The Court ruled ultimately that “state courts may review state laws governing federal elections to determine whether they comply with the state constitution” Harper v. Hall, 2022-NCSC-17 (N.C. Feb. 14, 2022), but stressed also that “federal courts must not abandon their own duty to exercise judicial review” so that state courts don’t “exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by” the Election Clause. Harper, 600 U. S. ____ (2023) (slip op. at 30).
This ruling is based, more than on any precedent, on the question: “What are Legislatures?”, and on the Court’s answer, that couldn’t be other than: “Creatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void.” Vanhorne’s Lessee v. Dorrance, 2 Dall. 304, 308 (Pa. 1795).