A First Cut at Moore v. Harper’s Perils

Meryl Chertoff, Executive Director, Georgetown Project on State and Local Government Policy & Law, Adjunct Professor of Law


I have just finished reading Leah Litman and Kate Shaw’s really excellent takedown of the independent state legislature theory (ISLT) and the decision of the North Carolina Supreme Court that was granted cert as Moore v. HarperHarper v. Hall which could be the case that decides if the Court will accept ISLT as a doctrine governing the relationship of federal and state election law.

Litman and Shaw summarize arguments and cases about textualism, judicial federalism, abstention, and separation of powers in the states, that well may serve as the underpinning of a scholars’ amicus in Moore v. Harper. What caught my attention in particular is what the case would do to state supreme courts, and their power as the “last word” on interpreting their state constitutions.


ISLT and Judicial Review

Two phrases in Article One of the US Constitution underpin ISLT. One is the Elections Clause, which reads, “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.”


The other is the Presidential Electors Clause, which reads, “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.”


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. By contrast, ISLT puts state legislatures, rightly criticized as countermajoritarian, at the exclusive center of decision-making.


If ISLT does apply, the actions of state legislature to redistrict for congressional districts, and regulate elections, would become unreviewable by the state supreme court for their fidelity to the state’s constitution. Wait! That rings a bell! Can it be that this would contravene the beating heart of the Anglo-American legal system, a judge made doctrine-- judicial supremacy, articulated in Justice Marshall’s iconic opinion in Marbury v. Madison.


As it happens, the North Carolina Marbury equivalent, Bayard v. Singleton, precedes Marbury by six years and Justice Marshall was familiar with state law precedent for judicial review of state legislative enactments. Marbury’s right of federal judicial review is no less judge-made doctrine than those state cases. This would put us in a dark place. If a few phrases strung together can deprive the state courts of judicial review, can it be long before the idea that the judge-made doctrine of Marbury is also up for grabs?


The North Carolina Supreme Court Case and Prior Supreme Court Cases

The rigor of reasoning in Harper v. Hall, and the rich sweep of history it undertakes is the essence of judicial reasoning. Anybody who takes seriously the comment by Justice Alito that the North Carolina Supreme Court engaged in legislation (Moore v. Harper, slip op. at 3), will find that allegation eviscerated The majority opinion extensively documents the history of the North Carolina constitution, the obligation of the state’s supreme court to review legislative enactment under the North Carolina constitution, and the specific and unique provisions of the North Carolina constitution that have been, and must be interpreted with reference to North Carolina precedent.


It is a treasure trove of analysis on the role of state constitutional courts, and several observations are in order. The first is how Harper v. Hall stands in conversation with the 2019 decision of the Court in Rucho v. Common Cause, the case that threw partisan gerrymandering out of federal court, a 2015 case on state legislative power in Congressional redistricting, Arizona State Legislature v. Ariz Independent Redistricting Commission (AIRC) as well as recent cases out of two other state Supreme Courts: Florida and Kansas. Bush v. Gore, which also presaged the ISLT theory to be reviewed in Moore v. Harper, is well-analyzed by Litman and Shaw; I won’t restate those arguments.


AIRC was an Election Clause challenge to Congressional redistricting brought by disappointed Republican legislators. Arizona, like a number of Western and southern states, includes the direct democracy tools of initiative and referendum as a coordinate legislative tool under its constitution. In 2000, against a backdrop of concern over partisan gerrymandering of districts by the state Legislature, its voters passed by ballot initiative Proposition 106, which took the power of redistricting in both state and Congressional elections from the State Legislature and conferred it on the AIRC. Hawaii, Montana, Idaho and Washington State had similar laws; California’s Commission redistricting system required its districts to be confirmed by the voters. In a 5-4 decision, Justice Ginsburg writing for the Court, upheld the power of the AIRC to engage in congressional redistricting (its right to do so for state legislative districts was not disputed by the parties).


Her analysis reviewed earlier cases in SCOTUS. These include one case where the US Supreme Court in 1932 upheld the judgment of the Minnesota Supreme Court that under that state’s constitution, legislative redistricting the state was subject to gubernatorial veto, and another from Ohio in 1916, that involved an amendment to the Constitution of Ohio vesting in the people the right, exercisable by referendum, to approve or disapprove by popular vote any law enacted by the State's legislature. A 1915 Act redistricting the State for the purpose of congressional elections had been reversed by popular referendum. The Ohio Supreme Court declined to declare the referendum void and SCOTUS agreed that a popular veto was lodged in the voters and “was a part of the legislative power of the State.”


Chief Justice Roberts joined the dissent in AIRC. A scant three years later, the Court returned to the issue of political gerrymandering. In Rucho, the Court found political gerrymandering to be unreviewable in the federal court. Yet in his opinion for the majority, the Chief Justice acknowledged the role of state constitutional law, and state courts, to review these cases. Roberts also spoke with approval of AIRCs, which had since AIRC was decided, been adopted in both Colorado and Michigan. Said the Chief:


Our conclusion does not condone excessive partisan gerrymandering… provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply. (Rucho at 2507)


Note that in all these precedential cases (except AIRC, which originated in Federal District Court directly under the Elections Clause) the Supreme Court accepted without challenge or comment, the jurisdiction of the State Supreme Court to review the election law under the state’s constitution.


Harper v Hall’s Reasoning

Next comes Harper v. Hall. The North Carolina court references the line of decisions noted above that confirm the view that state courts may review state laws governing federal elections to determine whether they comply with the state constitution. Finding the redistricting case to be justiciable, the North Carolina Supreme Court then goes on to an analysis under North Carolina’s Free and Fair Elections Clause, which has no cognate in federal law, its state Equal Protection Clause and other state constitutional clauses protecting free speech and the right to assemble and petition.


The North Carolina Supreme Court’s reasoning on justiciability is notable. Accepting Chief Justice Roberts’ invitation in Rucho, it notes that in contrast to Arizona’s direct democracy as a check on legislative overreach, there is no popular democracy safeguard under the NC Constitution. Only the state supreme court acts as a check. It then analyzes its own 1787 Bayard case establishing judicial review of acts of the North Carolina legislature, and its reaffirmance in two cases, here and here. The power also seems to be tacitly accepted by the NC Legislature in Sec. 120-2.4 of the General Statutes, which allow a waiting period for the General Assembly to correct redistricting defects before a state court may order its own remedy for defects it identifies.


The North Carolina Court points to several factors underlying its assertion of power to interpret its own state constitution, previously well-established in federalism doctrine. First, in line with the judicial federalism claim made by Litman and Shaw, the Court asserts the power to construe its own constitutional provisions in accord with prior precedents and North Carolina specific canons of construction. Second, it makes the well-trodden observation that state constitutions are more detailed, and provide greater guidance for their interpretation than the Federal constitution, and that cognate provisions, such as equal protection have a nuanced and specific meaning under the state Declaration of Rights that is distinct from the federal version. Additionally, the state supreme court observes that the availability of those diverse constitutions in fifty states is one of the justifications that the Rucho court itself asserted to justify deferring to the different state-specific interpretations of when and whether political gerrymandering should be remedied by the courts.


Other State Supreme Courts

A comparison to the constitution of Florida is instructive. As the Rucho Court noted, that state’s constitution includes a Fair Districts Amendment, adopted in 2010, and serving as the basis for a successful redistricting challenge in the state supreme court in 2015 in League of Women Voters FL v. Detzner Chief Justice Roberts, in Rucho specifically nods to the Florida provision, saying that the absence of a federal version is one distinction between federal election law and Florida election law—a theme we have seen again this Term in the Chief’s textualism. The dissent in Harper v. Hall picks up that point, but try to prove too much. If North Carolina’s Supreme Court has jurisdiction over interpreting its constitution in a political gerrymandering case, it can also decide how textualist it is going to be in interpreting it. Litman and Shaw provide a more robust discussion, at 20.


The third case, just decided in May, bookends the North Carolina and Florida examples. In Rivera v. Schwab, the Kansas Supreme Court also took up a political gerrymandering case, finding that the Kansas Equal Protection provision was not capacious enough to accommodate the challenge. But it explicitly rejected the argument that it could not decide the case.


In Defense of State Supreme Court Judicial Review, and A Few Questions

Taken together these three cases, from very different states (which all share, interestingly, that they elect their judges, who then also are subject to the vagaries of redistricting, but that we will leave to another blog) establish that whatever their view of the interpretation of specific constitutional provisions, it is the state Supreme Court that is competent to make that ruling. This is a critical safeguard of democracy. Layer on that the celebration of state constitutional diversity and innovation in Rucho and AIRC, and the principle of judicial federalism should bar jurisdiction-stripping from state supreme courts.


Why? First, state judicial constitutional review is inherent in the Marbury principle, as stated explicitly in some state constitutional doctrine, and implicitly in others. But it is also a structural safeguard. State judicial oversight of redistricting strikes prevents ambitious legislators from perpetuating their power indefinitely. Conflict of interest is inherent when “legislators dra[w] district lines that they ultimately have to run in.”


But the state courts have always been, and should remain the essential check on state legislative overreach in redistricting cases.


A few hypotheticals as a parting shot: without state supreme court review, what would prevent a legislature from enacting these rules:

  • The slate of electors of this state are to be selected by those members of the state legislature holding office as of January 30, 2022 in perpetuity until their demise.

  • The slate of electors of this state are to be selected by the Chairman of the Republican Party of this state (or the Democratic Party of this state)

  • The slate of electors of this state are to be selected by the Speaker of the Senate of this state

We’ll be doing a program on ISLT on September 29, featuring Rick Pildes and Carolyn Shapiro. RSVP here. Take these reflections as your invitation to weigh in on the blog in a reaction post. Share your thoughts (at least 100 words) with us here or at sloglawblog@gmail.com. We’ll publish your thoughts in the runup to that program.