In advance of next Wednesday’s oral argument in Moore v. Harper, I offer a few concluding (and admittedly inconclusive) observations on top of my Part 1 and Part 2 posts:
13. For the debate over the original meaning of the Elections Clause, read (in addition to the arguments of the parties) the competing amicus briefs submitted by law professors Akhil Amar, Vikram Amar, and Steven Calabresi, on the one hand, and by the Honest Elections Project, on the other.
14. In addition to the question of what “the Legislature” in the Elections Clause means, there is the question whether Congress has exercised its authority under the Elections Clause to preempt or supersede the authority asserted by the North Carolina legislature. Non-state respondents (brief at 65-66) and amicus law professor Derek Muller argue that Congress has done so, while petitioners vigorously disagree (reply at 40-43).
15. Anyone on either side who is inclined to view this case through a partisan lens should be aware that there is no reason to think that a victory for the Republican petitioners in North Carolina would be a victory for Republicans more broadly. As this Wall Street Journal article discusses, if the New York legislature’s gerrymander of congressional districts had been allowed to stand in the face of contrary state constitutional provisions, Democrats would likely have had a net gain of seven House seats (a 22-4 advantage rather than the 15-11 margin that resulted from the elections). Republican gains in North Carolina and perhaps some other states might have offset the Democratic gains in New York. But neither in the short term nor especially in the longer term is it at all clear which political party would benefit nationally from a victory for petitioners.