[edited to include full text]
Disclaimers
The probabilities listed are contingent on SCOTUS issuing a ruling on this case. An updated numerical forecast on that happening, particularly in light of the NC Supreme Court’s decision to rehear Harper v Hall, may be forthcoming.
The author of this report, Greg Justice, is an excellent forecaster, not a lawyer. This post should not be interpreted as legal advice. This writeup is still in progress, and the author is looking for a good venue to publish it in.
You can subscribe to these posts here.
Introduction
The Moore v. Harper case before SCOTUS asks to what degree state courts can interfere with state legislatures in the drawing of congressional district maps. Versions of the legal theory they’re being asked to rule on were invoked as part of the attempts to overthrow the 2020 election, leading to widespread media coverage of the case. The ruling here will have implications for myriad state-level efforts to curb partisan gerrymandering.
Below, we first discuss the Independent State Legislature theory and Moore v. Harper. We then offer a survey of how the justices have ruled in related cases, what some notable conservative sources have written, and what the justices said in oral arguments. Finally, we offer our own thoughts about some potential outcomes of this case and their consequences for the future.
Background
What is the independent state legislature theory?
Independent State Legislature theory or doctrine (ISL) generally holds that state legislatures have unique power to determine the rules around elections. There are a range of views that fall under the term ISL, ranging from the idea that state courts’ freedom to interpret legislation is more limited than it is with other laws, to the idea that state courts and other state bodies lack any authority on issues of federal election law altogether. However, “[t]hese possible corollaries of the doctrine are largely independent of each other, supported by somewhat different lines of reasoning and authority. Although these theories arise from the same constitutional principle, each may be assessed separately from the others; the doctrine need not be accepted or repudiated wholesale.”1
The doctrine is rooted in a narrow reading of Article I Section 4 Clause 1 (the Elections Clause) of the Constitution, which states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”2 According to the Brennan Center, this interpretation is at odds with a more traditional reading:
The dispute hinges on how to understand the word “legislature.” The long-running understanding is that it refers to each state’s general lawmaking processes, including all the normal procedures and limitations. So if a state constitution subjects legislation to being blocked by a governor’s veto or citizen referendum, election laws can be blocked via the same means. And state courts must ensure that laws for federal elections, like all laws, comply with their state constitutions.
Proponents of the independent state legislature theory reject this traditional reading, insisting that these clauses give state legislatures exclusive and near-absolute power to regulate federal elections. The result? When it comes to federal elections, legislators would be free to violate the state constitution and state courts couldn’t stop them.
Extreme versions of the theory would block legislatures from delegating their authority to officials like governors, secretaries of state, or election commissioners, who currently play important roles in administering elections.3
The doctrine, which governs the actions of state courts, is of particular importance to partisan gerrymandering given SCOTUS’s prior ruling that partisan gerrymandering is beyond the reach of federal courts.4 Some extreme interpretations of ISL would deem state constitutional amendments imposing standards for redistricting, like those in Florida5 and Ohio,6 or amendments requiring redistricting to be done by an independent commission, as is done in states like Arizona7 and Michigan,8 as unenforceable by state courts. State legislatures in that scenario may be able to gerrymander with far more freedom than they currently have.9
What is Moore v. Harper about?
The sequence of key events leading to the current case is as follows:
The NC Supreme Court ruled that the NC legislature’s gerrymandered electoral maps violated the state constitution and ordered the legislature to submit remedial maps to the lower court meeting prescribed standards for fairness.
The legislature submitted a remedial map for the Congressional election, but the lower court rejected it, as it was drawn using banned partisan data and didn’t meet the NC Supreme Court’s standards for fairness.
Having rejected the legislature’s remedial Congressional map, and needing to meet deadlines for upcoming primaries, the lower court instead adopted an interim map drawn by special masters for use in the 2022 Congressional election.
Timothy Moore, Speaker for the NC House of Representatives, sued, alleging the striking down of the legislature’s map and replacement with the court’s own violates the Elections Clause.
While approximately one third of registered voters in North Carolina are unaffiliated with any party,10 North Carolina voters have split their votes roughly 50⁄50 between Democratic and Republican presidential candidates in the past several presidential elections.11 However, after North Carolina gained an additional House seat in the 2020 redistricting cycle, the Republican-led North Carolina state legislature adopted a heavily gerrymandered Congressional district map that would likely have resulted in 9 or 10 of the state’s 14 Congressional seats going to Republicans.12 That map, as well as two others for use in elections for the NC House and NC Senate, was set to be used in the 2022 midterm election. The North Carolina legislature previously passed a statute authorizing court review of its redistricting plans.13 Pursuant to that statute, a group of voters and non-profit organizations sued in a case called Harper v. Hall, arguing that the legislature’s partisan gerrymander violated the state constitution.
The NC trial court (lower court) upheld the maps, but the NC Supreme Court overturned that decision 4-3, ruling that the maps violated four clauses of the NC state constitution.14 The NC Supreme Court then blocked use of the maps and ordered new maps to be submitted that would meet specific criteria. The NC General Assembly duly submitted new maps, and the lower court approved the new NC House and NC Senate maps. However, the court did not approve the Congressional district map and issued an interim map for the 2022 election instead.15
In response, Timothy Moore, the Speaker of the NC House of Representatives, requested that SCOTUS review the actions of the NC Supreme Court, including both its ruling that new maps be submitted to the lower court and its requirement that a court-drawn map be used in the 2022 Congressional election. He also asked that, in the meantime, SCOTUS stay the NC courts’ orders, which would mean that the NC legislature’s original gerrymandered maps would be used in the 2022 election.
SCOTUS agreed to hear the case but did not stay the lower courts’ orders. The denial of a stay included two opinions, one from Kavanaugh concurring, and one from Alito joined by Thomas and Gorsuch dissenting.
What is the legal question posed in Moore v. Harper?
The exact question requested by Moore that SCOTUS agreed to hear is as follows:
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.16
What have conservative justices said prior to this case?
Conservative justices, including some currently on the bench, have voiced their opinions on similar issues in previous rulings and dissents. Their line has been that state legislatures bear primary, but not necessarily sole, responsibility for election law.
This was voiced most clearly in the conservative dissent in the 2015 case Arizona State Legislature v. Arizona Independent Redistricting Commission. That case decided whether an Arizona ballot measure could take redistricting authority from the state legislature and give it to an independent commission. In a 5-4 decision the majority ruled yes, while Roberts, joined by Scalia, Thomas, and Alito dissented. From their dissent:
In Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565 (1916), the Ohio Legislature passed a congressional redistricting law. Under the Ohio Constitution, voters held a referendum on the law and rejected it. A supporter of the law sued on behalf of the State, contending that the referendum “was not and could not be a part of the legislative authority of the State and therefore could have no influence on … the law creating congressional districts” under the Elections Clause. Id., at 567. The Court. rejected an argument that Ohio’s use of the referendum violated a federal statute, and held that Congress had the power to pass that statute under the Elections Clause. Id., at 568-569. Hildebrant simply approved a State’s decision to employ a referendum in addition to redistricting by the Legislature. See 241 U. S., at 569. The result of the decision was to send the Ohio Legislature back to the drawing board to do the redistricting.
In Smiley, the Minnesota Legislature passed a law adopting new congressional districts, and the Governor exercised his veto power under the State Constitution. The Court nevertheless went on to hold that the Elections Clause did not prevent a State from applying the usual rules of its legislative process—including a gubernatorial veto—to election regulations prescribed by the legislature. 285 U. S., at 373. As in Hildebrant, the legislature was not displaced, nor was it redefined; it just had to start on a new redistricting plan.There is a critical difference between allowing a State to supplement the legislature’s role in the legislative process and permitting the State to supplant the legislature altogether. See Salazar, 541 U. S., at 1095 (Rehnquist, C. J., dissenting from denial of certiorari) (“to be consistent with Article I, § 4, there must be some limit on the State’s ability to define lawmaking by excluding the legislature itself”). Nothing in Hildebrant, Smiley, or any other precedent supports the majority’s conclusion that imposing some constraints on the legislature justifies deposing it entirely.
The constitutional text, structure, history, and precedent establish a straightforward rule: Under the Elections Clause, “the Legislature” is a representative body that, when it prescribes election regulations, may be required to do so within the ordinary lawmaking process, but may not be cut out of that process. Put simply, the state legislature need not be exclusive in congressional districting, but neither may it be excluded. [emphasis added]
That statement is a rejection of the extreme forms of ISL. A similarly restrained take has been echoed by the other conservative judges, who take issue with the extent of state courts’ power, but apparently not with the idea that they have a role to play.
Opinions on denial of application to vacate stay, DNC v. Wisconsin State Legislature
Kavanaugh: “[U]nder the U. S. Constitution, the state courts do not have a blank check [emphasis added] to rewrite state election laws for federal elections. Article II expressly provides that the rules for Presidential elections are established by the States “in such Manner as the Legislature thereof may direct.” §1, cl. 2 (emphasis added). The text of Article II means that “the clearly expressed intent of the legislature must prevail” and that a state court may not depart from the state election code enacted by the legislature. Bush v. Gore, 531 U. S. 98, 120 (2000) (Rehnquist, C. J., concurring); see Bush v. Palm Beach County Canvassing Bd., 531 U. S. 70, 76-78 (2000) (per curiam); McPherson v. Blacker, 146 U. S. 1, 25 (1892).“17
The dissents to the denial of a stay in Moore v. Harper
From Alito (dissenting), joined by Thomas, Gorsuch: “if the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections. I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.” [emphasis added]
None of these statements suggest that state courts lack jurisdiction over state election law cases, as more extreme versions of ISL would contend. They say that, just as stated in the Arizona dissent, that state courts do indeed have authority on election law cases, but that authority has limits.
Also notable is the majority opinion in Rucho v. Common Cause, written by Roberts and joined by Alito/Thomas/Gorsuch/Kavanaugh. The most notable section is the following:
The conclusion that partisan gerrymandering claims are not justiciable neither condones excessive partisan gerrymandering nor condemns complaints about districting to echo into a void. Numerous States are actively addressing the issue through state constitutional amendments and legislation placing power to draw electoral districts in the hands of independent commissions, mandating particular districting criteria for their mapmakers, or prohibiting drawing district lines for partisan advantage. The Framers also gave Congress the power to do something about partisan gerrymandering in the Elections Clause. That avenue for reform established by the Framers, and used by Congress in the past, remains open.18
The language used in that section seems to condone some restraints on legislatures coming from state constitutions and independent commissions. However, such measures aren’t the question they were ruling on in that case, and they’re not explicitly saying such measures are always legal. Alito, Thomas, and Kavanaugh have shown interest in limiting the power of state courts despite joining that opinion. However, at the very least, it’s another rejection of the extreme forms of ISL.
While conservative justices have written against radical forms of ISL, they do see an issue with the NCSC’s actions, and similar actions by other courts. As Alito (joined by Thomas and Gorsuch) argued in an opinion related to Republican Party of Pennsylvania v. Boockvar, “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the state legislature simply by claiming that a state constitutional provision gave the courts authority to make whatever rules it thought appropriate for the conduct of a fair election.”19 A conservative ruling would likely seek to address that issue, defining how far the authority of state courts can reach in federal election law cases.
Lastly, there is some notable precedent, or lack thereof, with regard to rulings seeking to overturn the results of elections. There were lawsuits to overturn the 2020 election and SCOTUS refused to hear them. From the Economist:
Late last year, when Donald Trump and his allies were litigating his electoral loss, the Supreme Court shot down two last-ditch lawsuits with deep procedural flaws. On December 8th a one-sentence order put a halt to a Pennsylvania state representative’s bid to stop his state from certifying Joe Biden’s win. And three days later, another terse order snuffed out Texas’s attempt to suspend Mr Biden’s victories in Georgia, Michigan, Pennsylvania and Wisconsin. For Stephen Vladeck, a law professor at the University of Texas and Supreme Court litigator, some of the court’s most important decisions of the term “may have been its decisions not to get involved”.[^20] [emphasis added]
The orders for the Pennsylvania20 and Texas21 are linked in the footnotes, and they’re as terse as the Economist describes them. The Pennsylvania order is literally one sentence from all of the justices, and the Texas order had a dissent only from Alito and Thomas, and it was only on procedural issues; neither of them would have granted the request for relief either.
Some of the worries around this case are that it’s part of a plot to overthrow a future election. However, it’s worth noting that SCOTUS has already been asked to do that, and they’ve refused the cases with almost no written dissent.
What have conservative groups written?
A good place to start is the petitioner, Timothy Moore. What he’s not asking for, at least not openly, is a more expansive version of ISL:
Moore said he did not agree with broader versions of the argument that could be used to question the certification of election results. He also said he believed that the governor had the power to veto elections legislation, a procedure cast into doubt by at least one interpretation of the independent state legislature theory. “I would not go that far,” he said.
Notably, this case has drawn wide opposition, including from many conservative sources.22 The case includes amicus briefs from the Republican National Committee (RNC) and the National Republican Redistricting Trust (NRRT), among others.
The RNC made a similar argument to the one petitioners made in oral arguments. The gist of their brief is emphasizing that state legislatures are bound by Congress and federal law, which they use to rebut the idea that overturning the NCSC would grant unchecked power to state legislatures. They also outline a role for state courts enforcing state statutes and constitutions, but not substantively deviating from those laws or creating their own:
There remains a limited role for state courts, one far more circumscribed than the antics conducted by the North Carolina Supreme Court. State courts may, for example, ensure that their state legislature’s regulations follow federal law. That said, they never may claim a “blank check to rewrite state election laws for federal elections.” Democratic Nat’l Comm., 141 S. Ct. at 34 n.1 (2020) (Kavanaugh, J., concurring in denial of application to vacate stay). The plain text of the Elections Clause means “‘the clearly expressed intent of the legislature must prevail’ and that a state court may not depart from the state election code enacted by the legislature.” Id. (citing Gore, 531 U. S. at 120 (Rehnquist, C. J., concurring); see Palm Beach Cnty. Canvassing Bd., 531 U.S. at 76-78 (per curiam); McPherson, 146 U.S. at 25).
It remains true that “state statutes and state constitutions can provide standards and guidance for state courts to apply.” Rucho, 139 S. Ct. at 2507. It is also true, however, that state courts are limited to enforcing the express policy prescriptions of the legislature and procedural limitations—such as the gubernatorial veto or initiative process—on the legislature’s lawmaking powers.; See Smiley v. Holm, 285 U.S. 355, 369 (1932); Gore, 531 U.S. at 120 (Rehnquist, C.J., concurring); Ariz. State Legislature, 576 U.S. at 824.8 None of this Court’s precedents support the “conclusion that imposing some constraints on the legislature justifies deposing it entirely,” in favor of giving a state’s lawmaking power to its judiciary. Ariz. State Legislature, 576 U.S. at 841 (Roberts, C.J., dissenting); see also Republican Party v. Boockvar, 141 S. Ct. 1, 2 (2020) (statement of Alito, J., joined by Thomas and Gorsuch, JJ.) (when a state court replaces the policy prescriptions of the legislature with its own, “there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution”).23
The NRRT’s brief on the other hand focuses on outlining their stance on when state courts can and cannot check the actions of the legislature. The first is through “express authorizations’’ where a clear standard is outlined in state law. As they note, ”Such express authorizations as exist in New York and as the Rucho Court identified in Missouri, Iowa, and Delaware law codify clear anti-partisan gerrymandering standards that state courts are empowered to enforce. But it does not logically follow from the Court’s recognition that “[p]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in redistricting cases that all state court attempts to review a state legislature’s redistricting authority are automatically constitutionally permissible. Rucho, 139 S. Ct., at 2507.“ (emphasis added) 24
So neither conservative group is asking for state courts to be cut out of the lawmaking process. Instead, they’re asking for specific standards around when it’s acceptable for a state court to intervene and/or what remedies they’re allowed to issue.
What was said in oral arguments?
Here we’ll break down each judge’s questions from oral arguments. Firstly though, some background on what different cases refer to, very broadly:
Smiley v. Holm (1932): SCOTUS ruled that state governors can veto election laws.
Davis v. Hildebrant (1916): _SCOTUS ruled that state referenda can restrict legislatures in making federal election laws.
Rehnquist’s concurrence in Bush v. Gore (2000): Rehnquist argued that SCOTUS can review state court interpretations of state statutes regarding federal election laws under a deferential standard, although he didn’t specify a specific standard.
Bush v. Palm Beach County Canvassing Board (2000): full meaning is contested, but state court interpretation of state statutes and constitutions regarding federal election laws at least presents a federal question that SCOTUS can review.
Rucho v. Common Cause (2019): SCOTUS ruled that federal courts can’t review partisan gerrymandering cases, because impermissible partisan gerrymandering lacks a clear meaning for judges to apply. However, the ruling did seem to endorse some role for state constitutions and laws restricting legislatures.
Leser v. Garnett (1922): SCOTUS ruled that some actions by state legislatures can be immune to state restrictions when the function is assigned by the federal government. In that case, the Virginia constitution prohibited women’s suffrage, but the Virginia legislature ratified the Nineteenth Amendment granting women suffrage. SCOTUS ruled that that ban couldn’t block the legislature’s actions because ratification is a function granted by the federal Constitution that “transcends any limitations sought to be imposed by the people of a state.”25 Petitioners here argue that making state election laws should be seen in a similar way, with authority coming from the Elections Clause.
Roberts
Petitioners
Smiley is a big exception to their argument that legislatures are independent from checks by other state entities, and the gubernatorial vetoes Smiley endorsed aren’t cleanly procedural vs. substantive.
What’s the petitioners’ back-up argument? Answer: state courts can only apply judicially discoverable and manageable standards for election laws (similar to Rucho).
Respondents 1 (Katyal)
Rucho, which Roberts authored, endorsed constitutions providing “standards and guidance” for legislatures. In the context of that ruling, the NC constitution’s vague clauses like “all elections shall be free” may not constitute “standards and guidance”26 because of how vague they are, and hence would not be endorsed by that ruling.
Respondents citing Rehnquist’s concurrence in Bush v. Gore saying SCOTUS can intervene feels like respondents ending in a similar place as petitioners.
Respondents 2 (Verrilli)
Roberts seems to draw a distinction in terms of permissibility between vague constitutional clauses and the specific choices that judges make interpreting them.27 Constitutional clauses can be vague, which may not be inherently problematic. But modern judges choosing an efficiency gap of x% or appointing special masters to draw maps are very specific actions, much more specific than what judges did near the founding when such vague clauses were endorsed. In other words, jumping from a vague clause to a specific numerical efficiency gap requirement is a big leap, and modern applications of vague constitutional clauses like that may run afoul of the Elections clause, even if the clauses themselves don’t.
Solicitor General
(in response to Justice Jackson) This case exists because of tension between the federal Constitution empowering the legislature and state courts constraining them. He notes SCOTUS regularly addresses tensions between state and federal power.
He asks if the SG accepts that there’s a role for SCOTUS in determining if what a state is doing is ordinary or outrageous? SG response: yes, but highly deferential standard to avoid constant litigation and be consistent with broader doctrine.
Thomas
Petitioners
He asked a prefatory question about why SCOTUS is involved in a state law question, answer being that the Elections clause is a federal law empowering legislatures.
Respondents 1 (Katyal)
Thomas seems to disagree with the idea that SCOTUS doesn’t normally second guess state court interpretations of their constitutions citing Baker v. Carr28, and questions where the NC Supreme Court’s authority the regulate federal elections is from. He also seems to share a concern with Gorsuch that the NCSC ruling would be different if the legislature favored minority voters instead of Republicans, implying respondents’ argument is politically motivated.
Respondents 2 (Verrilli)
He asked how respondents would articulate the sky-high standard being discussed for when SCOTUS can review cases.
Solicitor General
He asked if the SG would agree with the deferential standard being discussed, and noted the irony of her being on the opposite side of an issue about leaving power to the states instead of the federal government.
Alito
Petitioners
He asks whether it’s inevitable that state courts and election officials will have to interpret different statutes and make decisions about all the little details about running elections. He seems skeptical of an expansive ruling that would interfere with necessary decisions about the nitty gritty details of election administration.
Respondents 1 (Katyal)
His questions taken together frame the NCSC’s ruling as at least approaching judicial legislating. He first aimed to find what line respondents would draw for impermissible conduct, and implied that such lines would allow for some very questionable outcomes. The hypotheticals he asked about were extreme, such as courts being appointed to legislative roles or striking down laws simply because they’re “unfair.” He also asked if it’s better to move redistricting controversy from the legislature to elected courts.
He also showed clear interest in outlining a role for SCOTUS. He first asked if endorsing the Rehnquist concurrence’s principle would be as disruptive as the more extreme options. He also mentioned several other contexts (cases involving Contract Clause, Takings Clause, etc.) where SCOTUS interprets state law, questioned what checks exist against appointed supreme courts making extreme decisions, and questioned if the sky-high standard being requested by respondents can ever possibly be failed.
Respondents 2 (Verrilli)
Alito questions whether the respondents’ proposed test for impermissible conduct by a state court can ever be failed. He does so by critiquing the NC court’s ruling. His criticisms center around history and precedent, essentially saying that this is a novel interpretation of an old issue, and the NC court’s decision lacks meaningful precedent. He also takes issue with their introductory statement that they have to step in because the legislature won’t fix the problem.
Verrilli reminds him that the petitioners accept the NC court’s ruling as given, in addition to providing rebuttals to each point.
Solicitor General
His questions deal with USC § (a) 29 and whether it provides an alternative ground to decide the case. He seems to agree with the SG that it doesn’t.
Sotomayor
Petitioners
Sotomayor was extremely skeptical of the petitioners. Her questions pointed out some confusing implications of the substantive/procedural distinction and said “it seems that every answer you give is to get you what you want, but it makes little sense.” She also questioned why this is different from courts doing sweeping interpretations of freedom or speech or assembly, if the 10th amendment reserves the ability to restrict legislatures to the states, and asked Justice Jackson’s hypothetical about two groups claiming to be the legislature.
Respondents 1 (Katyal)
She had only a couple open-ended questions. The first was to address a couple historical examples from Maryland and Virginia that petitioners raised. The second was if they take issue with the idea that interpretations of state constitutions can violate the federal constitution (Rehnquist concurrence). She agreed with their response to the first, and said she read Palm Beach and Rehnquist’s concurrence in Bush v Gore as saying state court interpretations can’t violate due process. This suggests that she may not buy the argument for even a limited role for SCOTUS here.
Respondents 2 (Verrilli)
She starts off saying “Mr. Verrilli, I’m – I’m trying to organize an opinion if I were to rule in your favor.” She then asks how they’d argue against the procedural/substantive distinction and why they don’t reach the question of if the NCSC went too far by legislating instead of reviewing.
Solicitor General
She asks how the SG would articulate where the line is for where a state court crosses into legislating instead of reviewing.
Kagan
Petitioners
Her main point was that, while this issue hasn’t been directly addressed, court precedent (citing, Smiley, Rucho, and Arizona) pretty consistently points to legislatures being subject to ordinary constraints like governor’s vetoes and state constitutions. She also expressed concerns that petitioner’s theory would remove important checks and balances, which seems out of keeping with how our government works.
Respondents 1 (Katyal)
She seemed to be honestly trying to clarify the respondents’ argument. The way she summarized it was that respondents affirm that federal courts can review state court interpretations for violating the Elections Clause (corollary of the Rehnquist concurrence), but it’s under a highly deferential standard, and higher for state constitutions than state statutes. However, respondents don’t think that the NCSC’s decision here violates that rule, or even comes close.
Respondents 2 (Verrilli)
Her questions were focused around defining where the boundary line is for impermissible conduct by a state court. Her first question was around if courts have a responsibility to give legislatures a fair chance to remedy illegal maps before issuing replacements. Her second was a broader concern about defining a standard that won’t be satisfied too easily, since judges often accuse each other of policymaking instead of law when they disagree with each other.
Solicitor General
Kagan’s questions were fairly general. The first was broadly what the SG makes of the petitioner’s argument, and the second was what she thinks about different standards for state laws vs. state constitutions in constraining legislatures.
Gorsuch
Petitioners
Gorsuch was very sympathetic to petitioners, tossing a softball about concerns the founders may have had with constitutions trumping legislatures. Both he and the petitioners’ lawyer cited examples of states trying to put gerrymanders or the 3/5ths rule in their constitutions. He also seemed to think that this case went further than Rehnquist’s concurrence, since the NCSC didn’t interpret a law, they just annulled it outright.
His stance was also that the political question depends “on whose ox is being gored at what particular time.”
Respondents 1 (Katyal)
He seemed extremely skeptical of respondents. He continued the “whose ox is being gored” type of approach asking if an antebellum state could put gerrymandering or the 3/5ths clause in their constitution and whether federal courts could intervene. He also took issue with the NCSC decision based on Rehnquist’s concurrence, given: the change in the NCSC’s stance from a few years prior, their argument that they have to act because the legislature won’t, and their opinion only spending three paragraphs addressing the very complex Elections Clause issue.
Respondents 2 (Verrilli)
He expressed support for drawing a line similar to Barrett’s where if a state court interpretation is far afield from existing precedent then it’s no longer the legislature that’s prescribing time, place, and manner. This seems less deferential to state courts than Barrett’s line, which focused instead on whether a court is doing judicial review.
Solicitor General
Questions were mostly clarifying the arguments being presented on each side, though he may have taken issue with state courts invoking their constitutions as a higher authority to set aside the legislature’s time, place and manner regulations.
Kavanaugh
Petitioners
Kavanaugh seemed skeptical of the substance/procedure distinction line, and seemed to favor the Rehnquist approach (which he’s cited in DNC v. Wisconsin, see above). He questioned petitioners’ interpretation of Palm Beach, asked about state canons of interpretation, and about the history of state constitutions regulating federal elections, including in the Conference of Chief Justices brief.
Respondents 1 (Katyal)
He clarified that respondents aren’t arguing for no federal judicial review of state court decisions, and seemed personally sympathetic to that stance. He was also skeptical of different standards for statutes vs. constitutions.
Respondents 2 (Verrilli)
None
Solicitor General
None
Barrett
Petitioners
Barrett seemed quite skeptical of the petitioners. She was suspicious that the petitioner’s argument was simply working around court precedents without a sound basis and was cherry-picking historical quotes. She was also concerned that they were arguing “free and fair elections” is unmanageable, but their substance/procedure distinction is a very tough line to draw as well. She also wasn’t sure about the idea that constitutions are more problematic due to entrenchment when they can be changed via referenda.
Respondents 1 (Katyal)
She says that the way she’s thinking about this is essentially that a state court can’t interpret a law so wrongly that it’s no longer doing judicial review and instead acting as a legislature, because that would violate the Elections Clause saying laws must be prescribed “by the legislature.” Respondents agree with that but would be even more deferential to state courts.
Respondents 2 (Verrilli)
She gave respondents a chance to address the question of whether SCOTUS has jurisdiction to review the particular remedy being issued by the NCSC (the court-drawn map), which is somewhat separate from whether the NCSC can rule the legislature’s map unconstitutional. Those proceedings are still ongoing in North Carolina, so respondents don’t think SCOTUS should rule on it.
Solicitor General
None
Jackson
Petitioners
Jackson was very skeptical. Her primary argument is that the legislature’s existence and authority comes from the state constitution, so they can’t be exempt from checks in the state constitution.
Respondents 1 (Katyal)
Her argument, which respondents agree with and which is similar to what she said to petitioners, is that valid legislative power is defined by the state constitution. This is generally in response to arguments that wild interpretations supplant the legislature’s authority. That also means a high standard for SCOTUS review of constitutions because it’s the font of authority for relevant parties.
Respondents 2 (Verrilli)
She asks what body of law should be referenced for setting the “how far is too far” standard for courts usurping legislatures in policymaking. Respondents cite Alito’s colloquy with Katyal and Rehnquist’s concurrence.
Solicitor General
Jackson clarified with the SG that SCOTUS doesn’t need to articulate the sky-high standard that’s been discussed because petitioners aren’t pressing for it, they can just reject the substance/procedure distinction being pushed. She also continued her prior argument that a legislature making unconstitutional laws isn’t a legislature.
Forecasts
Notes
The following probabilities are contingent on SCOTUS issuing a ruling on this case. An updated numerical forecast on that happening, particularly in light of the NC Supreme Court’s decision to rehear Harper v Hall, may be forthcoming.
There are a wide variety of possible rulings that SCOTUS could issue, including restrictions on the sources and methods state courts can use to interpret state laws, restrictions on when state courts can intervene, and restrictions on actions that state courts can take. This makes it difficult to define narrow questions on the outcome of the case that can be numerically forecasted. Instead, we seek to bucket some of the likely rulings and forecast those buckets.
Will the court rule that the North Carolina courts erred in striking down and/or replacing the North Carolina district maps?
Forecast: 81%
Firstly as a base rate, we can look at how often SCOTUS overturns the lower court in cases that they hear. For cases coming from state courts, they overturn the state court 76% of the time.30 Intuitively this makes sense, a major reason to decide to hear a case is to correct an incorrect judgment. Many cases where SCOTUS agrees with the lower court simply aren’t heard.
Source: Ballotpedia
As for an opinion, we can look to oral arguments, and to the judges individually. In oral arguments overall, there were two main takeaways. Firstly, nobody seemed impressed by the petitioner’s argument, and the moderate conservatives in Roberts/Barrett/Kavanaugh seemed quite skeptical. Secondly, the respondents endorsed the idea that SCOTUS has some role to play in reviewing state court interpretations of their constitutions for redistricting cases, though under a very deferential standard. The idea of setting that standard seemed to resonate with Roberts/Barrett/Kavanaugh, as well as Kagan and others. Everyone agreed it should be a high standard, but exactly how high was an area of ambiguity and disagreement. Kagan was worried about a rule not being deferential enough to state courts, Alito worried about one deferring too much.
The main ambiguity seems to be where the standard of review for state court decisions will fall, and on which side of it the NCSC decision will end up.
For the individual judges:
Alito/Thomas/Gorsuch: For this case specifically, Thomas, Alito, and Gorsuch have all suggested support for the petitioners in their opinions in oral arguments and other cases, so their opinions are near-certain.
Roberts/Kavanaugh/Barrett: The other three conservatives are less certain. Those three justices voted against even hearing a similar case from during COVID.31 Even in this case, there were only four justices with written opinions on the stay request, three of which were Alito/Thomas/Gorsuch. Neither Roberts nor Barrett joined Kavanaugh’s fairly mild concurrence in denying the stay. However, it may also be Roberts and Barrett simply taking a neutral stance before hearing the arguments in this case. In oral arguments, none of them seemed to have a clear stance toward the NCSC specifically. Their position seemed to favor setting a very high bar for SCOTUS intervention, though it’s not clear where the NCSC’s decision would fall relative to that line.
Kavanaugh
Kavanaugh published a concurrence in denying the application for a stay, but only explicitly on Purcell principle grounds. He wrote “both sides have advanced serious arguments on the merits. The issue is almost certain to keep arising until the Court definitively resolves it.”32 However, he did touch on this subject in an opinion in DNC v. Wisconsin (cited above) saying “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”33 In that case, he disapproved of a district court extending voting deadlines during COVID. This case is similar, but the NCSC’s conduct is probably a bit less controversial.
In oral arguments he reiterated his support for the Rehnquist concurrence in Bush v. Gore, which he used to support the prior quote against “rewrit[ing] state election laws.” Unfortunately he didn’t say much else.
We put him at 85% chance of ruling against the NCSC.
Roberts
Roberts has been more moderate on recent election cases, with the distinction he’s drawn, as described by NYT, being that “[f]ederal courts should not change voting procedures enacted by state legislatures, and they also should not step in when state courts or agencies change those procedures.”34 However, the aforementioned line he drew was concerning 2020 election cases under COVID. A blanket prohibition on federal courts doing anything with state election laws would go against his prior opinions and dissents.
He was skeptical of respondents in oral arguments, with his concerns focused on state courts choosing very specific definitions for permissible conduct based on vague statutes, which he implied he doesn’t endorse.
All of that together paints a somewhat mixed picture, but we put it at 70% that he’ll rule against the NCSC.
Barrett
Barrett is the hardest to judge as she didn’t participate in the recent cases around the 2020 election cited above. However, she did join the highly controversial conservative majority in Dobbs recently, and joined the other five conservatives in the Voting Rights Act case Brnovich vs. DNC. However, she generally seems closer to the more moderate Roberts and Kavanaugh than the more extreme conservatives.35
Her stance in oral arguments supported a highly deferential standard for SCOTUS reviewing state supreme court decisions. The question is where she’d put the NCSC.
Given that track record and context we put a 60% chance that she’d rule against the NCSC
With three near-certain votes in Alito/Thomas/Gorsuch, two of Barrett/Kavanaugh/Roberts is needed to form a majority. Importantly, those two or three votes don’t need to join the other three conservatives’ opinion, the majority opinion could be a moderate ruling that Barrett/Kavanaugh/Roberts author, with a more extreme but non-controlling concurring opinion from the other three. We assume that rulings are independent, so our probability for a ruling against the NCSC is 81%, very close to the base rate for state court cases before SCOTUS.
Concerns for the Future
If SCOTUS Upholds the NC Supreme Court’s Actions: Election legitimacy
One of the most concerning futures for US politics is if large numbers of reasonable people don’t feel their elections are fair. One conservative argument in this case is that if the NCSC’s actions stand, blatantly partisan rulings from other courts in aggregate may jeopardize that trust.
The argument against what the NCSC did (Elections Clause aside) is that they’re reading a ban on partisan gerrymandering from extremely vague clauses, arguably against their precedent, and they pretty openly admit a policy motive in their own opinion. The decision was 4-3 with four Democrat judges in favor, and three Republican judges against it. Seeing the ruling as partisan is reasonable, even if one agrees with the outcome.
For North Carolinians specifically, this opinion probably won’t jeopardize trust in elections, mainly because gerrymandering is pretty universally reviled.36 But the danger may come from differences across states. “All elections shall be free” and similar clauses can be read very differently by different judges. One bad outcome would be D courts letting D legislatures gerrymander freely and send as many Democrats to Congress as possible, but D courts blocking R legislatures from gerrymandering and forcing them to send more Democrats, or vice versa. Alternatively, an R court in a D state could read vague election-related statutes to support voter ID requirements or similar policies, which might otherwise be against the will of voters.
This has always been a possibility in a federalist system, but in an increasingly polarized political environment with many states electing judges,37 it may be more likely to occur without SCOTUS intervention. Partisan gamesmanship in election law is unfortunately to be expected by partisan legislatures. But courts are intended to be a neutral third party, with decisions bound by constitutions and precedent, not the political opinions of justices. Some subjectivity is inevitable, but naked partisanship deciding election results or the balance of power in Congress will likely degrade respect for the courts as a (at least somewhat) neutral and nonpolitical body.
If SCOTUS allows for federal court review of state court decisions: Gerrymandering
The most immediate effect of such a ruling would most likely be to enable partisan gerrymandering in more states. At least 17 states had state court lawsuits either challenging their 2020 federal maps under their respective state constitutions or asking the state court to resolve a political impasse in map drawing,38 all of which may be affected depending on the ruling and/or subject to appeal in federal court. 21% of districts in the 2022 midterms were eventually drawn by state courts.39 Given the discussion in oral arguments, a SCOTUS ruling would most likely seek to empower state legislators to draw maps, and in practice they draw fewer competitive districts.40
Gerrymandering is obviously a bad practice, but there are mitigating factors here. Gerrymandering is bad in two ways: it promotes disproportionate representation (i.e 10-4 Republican reps in a 50⁄50 state like NC), and it enables representatives to choose their constituents to entrench themselves and ensure reelection. Since this case is for federal elections and maps are drawn by state reps, the entrenchment issue is less problematic. Elections for state and federal seats use different maps; maps drawn by the NC state representatives gerrymandering their own legislative districts will still be illegal and don’t implicate the Elections Clause.
That leaves the issue of disproportionate representation, in this case Republicans comprising 50% of votes but getting 70% of seats (absent court intervention). For any individual state this is bad, but gerrymandering is used by both parties. The effect in the 2022 midterms appeared to be a bump of only +4 to Republicans, though that did end up mattering a lot in this particular cycle.41 Timothy Moore appears to recognize his argument as a double-edged sword, saying “a wise person recognizes that an argument or rule that benefits one’s political side of the aisle today is something that can hurt their side of the aisle tomorrow.”42
Any ruling: Implications for how free and fair elections are ensured
Opposition to gerrymandering is a point of unity among Americans, and it demonstrates our widely held belief in fair elections. The cynical view presented by Gorsuch and Thomas is that political views on gerrymandering “[depend] on whose ox is being gored at what particular time.” That may not be entirely wrong. But many people have voted to restrict their own party’s ability to gerrymander, which is remarkable.
It was put most aptly by Mr. Verrilli in oral arguments:
If I could, there’s just one last point I would like to make about whose ox is being gored here, which I think is quite important.
Actually, there’s a great deal of sentiment in this country about the problems with extreme partisan gerrymandering and this Court’s opinion in Rucho acknowledged it. And states have actually responded in nonpartisan ways. I can think of four states, New York, Florida, California and Ohio, all of which are in the control of one political party where presumably the incentives would have been lined up to maximize partisan advantage through the redistricting process, but in all four of those states they amended their constitutions through the work of the people to restrict partisan gerrymandering and those provisions have been enforced. I mean, the provision was enforced in New York, of course, just earlier this year.
And so I do think it is more than whose ox is being gored. This is a really important issue in this country.43
Courts and legislatures are subject to different norms in different states, but they’re ultimately both made of people. Favoring one or the other isn’t inherently good or bad, and there are concerns with rulings going either way. An evaluation of the eventual ruling in this case shouldn’t focus too heavily on which side was favored, but should rather focus on whether the balance of power it leads to will favor freer and fairer elections in the future.
Acknowledgments
This post was written by Greg Justice, in collaboration with @belikewater. Big thanks to Misha for setting up the collaboration that led to this paper, for connecting me with outside experts, and for his consistent support, input, and encouragement throughout the months-long writing process, to @belikewater for leading the original discussions of the case and helping to develop the main arguments, to Nuño Sempere for his feedback and editing assistance, to Samotsvety forecasters for contributing their thoughts and forecasts, and to Christoph Winter, Aaron Hamlin, and Richard Winger for their comments and suggestions.
Footnotes
http://fordhamlawreview.org/wp-content/uploads/2021/11/Morley_November.pdf↩
https://constitution.congress.gov/browse/article-1/section-4/#:~:text=Clause%201%20Elections%20Clause,the%20Places%20of%20chusing%20Senators↩
https://www.brennancenter.org/our-work/research-reports/independent-state-legislature-theory-explained↩
https://www.scotusblog.com/case-files/cases/rucho-v-common-cause-2/↩
https://ballotpedia.org/Florida_Congressional_District_Boundaries,Amendment_6(2010)↩
https://ballotpedia.org/Ohio_Issue_1,Congressional_Redistricting_Procedures_Amendment(May_2018)↩
https://penntoday.upenn.edu/news/moore-v-harper-voting-rights-election-law-and-future-american-democracy↩
https://www.ncdemography.org/2020/08/13/who-are-north-carolinas-7-million-registered-voters/↩
https://en.wikipedia.org/wiki/North_Carolina%27s_congressional_districts↩
https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_1/GS_1-267.1.html↩
https://appellate.nccourts.org/opinions/?c=1&pdf=41183↩
https://www.nccourts.gov/assets/inline-files/22.02.23%20-%20Order%20on%20Remedial%20Plans.pdf?E9mkhJLRatLIbqax0vvfwDCYgiunTgIB↩
https://www.supremecourt.gov/docket/docketfiles/html/qp/21-01271qp.pdf↩
https://www.law.cornell.edu/supremecourt/text/20A66#CONCUR_4-1↩
https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf↩
https://www.supremecourt.gov/opinions/20pdf/20-542_i3dj.pdf↩
https://www.supremecourt.gov/orders/courtorders/120820zr_bq7d.pdf↩
https://www.supremecourt.gov/orders/courtorders/121120zr_p860.pdf↩
https://www.justsecurity.org/83831/as-moore-v-harper-takes-shape-a-broad-coalition-takes-aim-at-the-independent-state-legislature-theory/↩
https://www.supremecourt.gov/DocketPDF/21/21-1271/237169/20220906163915853_21-1271%20Amici%20RNC%20et%20al.%20Supp.%20Pet..pdf↩
https://www.supremecourt.gov/DocketPDF/21/21-1271/237139/20220906152952975_21-1271%20Amicus%20NRRT%20Supp.%20Pet.%20final.pdf↩
https://www.law.cornell.edu/supremecourt/text/258/130↩
Rucho focused on partisan gerrymandering lacking a justiciable standard for courts to apply. The context Roberts emphasized in oral arguments was “how unmanageable and indeterminate various proposals were.” He seems to be implying that constitutions providing “standards and guidance” meant that constitutions could provide the clear justiciable standard that partisan gerrymandering lacked. In that context, “all elections shall be free” in his view would not address the problem, and thus would not be endorsed by that opinion.↩
He’s responding here to the idea that vague state constitutional clauses are categorically unenforceable.↩
Baker v. Carr was a SCOTUS case from 1962. By 1961, Tennessee had failed to redistrict for 60 years, resulting in districts with vastly different populations, diluting some citizens’ votes. SCOTUS ruled that vote dilution from such malapportionment violates the 14th amendment Equal Protection Clause. Baker v. Carr ruled that a state statute, Tennessee’s 1901 map being used in 1961, violates federal law. It didn’t appear to “second-guess state court interpretations of their own constitution” as Justice Thomas seems to suggest. So to me it’s not entirely clear what parallel he’s trying to draw.↩
This federal statute determines what happens when reapportionment occurs but a state fails to draw new districts, especially if they gain or lose seats and their old maps have the wrong number of districts.↩
https://www.supremecourt.gov/opinions/20pdf/20-542_2c83.pdf↩
https://www.supremecourt.gov/opinions/21pdf/21a455_5if6.pdf#page=1↩
https://www.law.cornell.edu/supremecourt/text/20A66#CONCUR_4-1ref↩
https://www.nytimes.com/2020/10/29/us/john-roberts-supreme-court-voting.html↩
https://www.economist.com/united-states/2021/06/24/americas-supreme-court-is-less-one-sided-than-liberals-feared↩
https://thehill.com/homenews/state-watch/566327-american-voters-largely-united-against-partisan-gerrymandering-polling/↩
https://www.ojp.gov/ncjrs/virtual-library/abstracts/judicial-selection-united-states-special-report#:~:text=Partisan%20elections%20are%20held%20to,for%20State%20supreme%20court%20judges.↩
https://redistricting.lls.edu/cases/?courts%5B%5D=State%20Trial&courts%5B%5D=State%20Appellate&courts%5B%5D=State%20Supreme&levels%5B%5D=Congress&sortby=-updated&page=1↩
https://www.brennancenter.org/our-work/research-reports/who-controlled-redistricting-every-state↩
https://www.brennancenter.org/our-work/analysis-opinion/three-takeaways-redistricting-and-competition-2022-midterms↩
https://www.politico.com/news/2022/11/25/redistricting-midterms-00070810↩
https://www.nbcnews.com/politics/supreme-court/dispute-north-carolina-congressional-districts-tees-major-elections-ca-rcna57755↩
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-1271_21o2.pdf↩
Market: https://manifold.markets/Radicalia/will-samotsvetys-forecast-on-moore?r=UmFkaWNhbGlh