A couple of observations on the oral argument in Moore v. Harper, following up on my three posts (part 1, part 2, and part 3) on the case:
1. The primary argument of the North Carolina legislative officers, the petitioners in the case, is that while a state constitution may prescribe the procedure, or method, by which a state legislature makes a legislative enactment, it may not impose substantive limits on what a state legislature may enact pursuant to its Elections Clause authority. So provisions of the state constitution that, say, require a bicameral vote or subject legislation to a governor’s veto, may apply to legislation under the Elections Clause. But provisions of the constitution that—to refer to the matter at issue—direct or limit what the legislature may do in drawing districts for its seats in the House of Representative may not.
Let’s pass over for the moment the competing arguments over whether the substance/procedure distinction is sound. I was surprised by some confusion among the justices over the line that petitioners were drawing. For example, Justice Sotomayor seemed to think that the classification of a governor’s veto should turn on whether the governor’s reasons for the veto were substantive or not. (Transcript 30:4-13.) But under petitioners’ formalistic test, what matters is that legislation must pass through the “hoop” of the potential veto in order to become law. So the governor’s reasons for a veto are irrelevant.
Both Justice Sotomayor and Justice Barrett suggested that the line between substance and procedure can be very murky. That may well be true in some contexts. But for Elections Clause purposes a failure to comply with procedural restrictions would mean that a bill never becomes law in the first place, whereas an alleged failure to comply with substantive restrictions in the state constitution would mean only that the provisions of an enacted law are inconsistent with the state constitution.
2. Justice Jackson argued repeatedly that because a state’s constitution creates the state’s legislature, it follows that “we have to look at the state constitution to determine … what that entity’s powers are, how they can be exercised.” (14:10-21.) But that broad proposition contradicts the Court’s ruling in Leser v. Garnett (1922). In that case, 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.”
As I have explained (see point 10 in my part 2 post), in Smiley v. Holm (1932) the Court ruled that a state constitutional provision that gave the governor a veto power over legislation could apply to a redistricting plan that a legislature enacted pursuant to its Elections Clause authority. The Court distinguished Leser on the ground that the “function to be performed” by the legislature under the Elections Clause is legislative. But that narrow ground of distinction in no way establishes Jackson’s proposition that a legislature’s exercise of Elections Clause authority must comply with all provisions of the state constitution. On the contrary, the Court in Smiley stated that the exercise of the legislature’s authority “must be in accordance with the method which the state has prescribed for legislative enactments.” (Emphasis added.)
In short, the Court in Smiley drew, or at least suggested, the same distinction between procedure (or “method”) and substance that petitioners draw (and, per the same point 10 in my part 2 post, the Court’s ruling in Arizona State Legislature v. Arizona Independent Redistricting Comm’n (2015) is compatible with that distinction).
Suppose that provisions of a state constitution required extreme partisan gerrymandering of congressional districts or barred absentee voting in federal elections. Is it really Jackson’s position that the state legislature would have to comply with such provisions?