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. I will emphasize that I haven’t yet carefully studied the parties’ briefs, much less waded through the seventy or so amicus briefs. (As usual, if I discover that I have made any mistakes in what I set forth, I will undertake to correct those mistakes.)
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?
3. There is ample reason to think that the Court’s interpretation of “the Legislature” in the Elections Clause would have implications for, and should be reconciled with, other instances in which the Constitution confers authority on state “Legislature(s).” One such instance is the Electors Clause in Article II, section 1, which governs a state’s appointment of its electors to take part in the election of the president:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress….
Another such instance is Article V’s specification that a proposed constitutional amendment “shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof.”
What is the meaning of “Legislature(s)” in these and other provisions? How has the Court interpreted them? Should the term have the same meaning in these provisions, or are there persuasive grounds for giving it different meanings?
4. The parties and amici in Moore v. Harper are contesting what some proponents (perhaps most prominently, law professor Michael Morley) call the independent-state-legislature doctrine and what various detractors (see law professors Vikram Amar and Akhil Amar) call the independent-state-legislature theory or notion (or worse). I’ll just call it ISL.
ISL (as Morley puts it) “is rooted in the fact that states lack inherent authority to regulate federal elections; their only power over such elections comes from the U.S. Constitution.” The Elections Clause confers that power specifically on “the Legislature” of each state, not on the state generically, so the power of the state legislature under the Elections Clause is not necessarily subject to the usual state-law constraints (though it is of course expressly subject to Congress’s authority to “make or alter” the rules governing elections for senators and representatives).
ISL has many versions. Under a strong version, the state constitution can’t constrain the legislature’s exercise of power under the Elections Clause. So if, say, the state constitution were to provide that all of the state’s congressional districts are to be wider (east to west) than they are long (north to south), the legislature could nonetheless adopt a districting plan consisting of long districts and the state courts would have no authority to enforce the state constitutional provision. Under a variant of this strong version, the state legislature might not even be able to enact a statute that binds itself in the future (and that is enforceable in state courts) or that delegates any of its Elections Clause power to another entity. So if, for example, a state statute purported to require that congressional districts meet some test of compactness, the legislature could ignore that statute. (Or, if you prefer, the legislature’s exercise of its Elections Clause power would be understood to supersede that statute.) Another variant of this strong version might hold that the governor’s usual veto power over a legislature’s exercise of its state legislative power does not apply to an exercise of its federal Elections Clause power.
Under one of several weaker versions of ISL, a state constitutional provision that is clear and specific could be judicially enforceable, but the state courts would not have leeway to construe vague constitutional provisions (e.g., “elections shall be free and equal”) in ways that are contestable. Under an even milder version, state courts could prohibit a legislature’s redistricting plan but couldn’t impose their own.
5. Consideration of the role of a state legislature in the Article V process for constitutional amendments would seem to support a very strong version of ISL. Imagine that a state constitution provided that a state legislature could not ratify a proposed federal constitutional amendment that, say, overrode a provision of the state constitution. Or suppose that a state legislature had itself enacted a statute that purported to delegate ratifying authority to a special ratification commission. Would anyone think that such provisions would bind the state legislature and be enforceable by state courts?
I’ll note that in Hawke v. Smith (1920), the Supreme Court ruled unanimously that a state constitutional provision that purported to enable the people of the state to overturn by referendum the state legislature’s ratification of a federal constitutional amendment violated Article V. Similarly, in Leser v. Garnett (1922) the Court held unanimously that state constitutional provisions that were alleged to have “render[ed] inoperative” various state legislatures’ ratification of the Nineteenth Amendment were ineffective, as “the function of a state legislature in ratifying a proposed amendment to the federal Constitution … is a federal function derived from the federal Constitution, and it transcends any limitations sought to be imposed by the people of a state.” For the same reason, it did not matter whether two states had ratified the amendment “in violation of the rules of legislative procedure prevailing in the respective states.”
Perhaps my understanding of the authority of a state legislature under Article V is mistaken. Or perhaps that authority is for some reason broader than its authority under the Elections Clause. One might argue, for example, that the amendment-ratification role is not legislative in the way that adopting rules governing elections is. Of course, a similar distinction might be drawn between the legislature’s power to appoint presidential electors under the Electors Clause (not legislative in nature) and its power to prescribe rules governing elections.
6. I intend to address the Electors Clause (on a state legislature’s appointment of presidential electors) in a later post. For now, I will simply note that I do not see how even the strongest version of ISL would allow the scenario that some critics seem to fear most—that a state legislature would override the people’s votes on Election Day and confer the state’s electoral votes on a candidate who lost on Election Day. The same section of the Constitution that contains the Electors Clause provides that “The Congress may determine the Time of chusing the Electors….” That choosing of electors happens on the date that Congress has made Election Day, even though the vote tally is not completed on that day. A state legislature has no authority to override that choice, and federal or state** courts may block any efforts to do so.
* Correction: Not everyone.
** I initially referred only to federal courts.