WASHINGTON, DC – State courts can override state legislatures on congressional redistricting maps, but only to a limited extent, and federal courts can override both, a divided U.S. Supreme Court held on Tuesday in a 6-3 decision that could lead to great confusion in coming years in an area where many Americans might want clarity instead.
North Carolina’s Republican-controlled legislature adopted a congressional redistricting map that was favorable to Republicans. Democrat supporters sued, and a North Carolina lower court held that courts could not decide such lawsuits. The North Carolina Supreme Court had a Democrat majority at the time and ruled against the legislature, but when voters replaced two partisan liberal judges with conservatives, the new majority overruled that court’s earlier decision, holding that state courts could not override the legislature.
But during this saga the U.S. Supreme Court had heard arguments appealing the first North Carolina Supreme Court decision and handed down a major opinion delving into hotly contested questions over the U.S. Constitution’s requirements in this arena.
The case concerns “the Elections Clause of the Federal Constitution, which expressly requires ‘the Legislature’ of each State to prescribe ‘the Times, Places and Manner’ of federal elections,” Chief Justice John Roberts began for the majority. “We decide today whether legislatures have authority to set rules governing federal elections free from restrictions imposed under state law.”
But first the court needed to address the elephant in the room that the case appeared to have become moot. Mootness doctrine is the “constitutional requirement [that] ensures the parties before us retain a personal stake in the litigation,” Roberts explained, an interest “at all stages of review, not merely at the time the complaint is filed.”
The majority held that the case was not moot in a nuanced line of reasoning that was emphatically rejected by the three most conservative justices on the court, then turned to the merits of the case.
“Since early in our Nation’s history, courts have recognized their duty to evaluate the constitutionality of legislative acts,” Roberts wrote when making that transition. The court held that “the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”
“By fulfilling their constitutional duty to craft the rules governing federal elections, state legislatures do not consent, ratify, or elect—they make laws,” he reasoned. “Elections are complex affairs, demanding rules that dictate everything from the date on which voters will go to the polls to the dimensions and font of individual ballots.”
“In sum, our precedents have long rejected the view that legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution,” the majority held.
“Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein,” Roberts cautioned.
“The Elections Clause expressly vests power to carry out its provisions in ‘the Legislature’ of each State, a deliberate choice that this Court must respect,” he explained. “As in other areas where the exercise of federal authority or the vindication of federal rights implicates questions of state law, we have an obligation to ensure that state court interpretations of that law do not evade federal law.”
“Chief Justice Rehnquist, joined in a concurring opinion by Justice Thomas and Justice Scalia, acknowledged the usual deference we afford state court interpretations of state law, but noted areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law,” Roberts continued, quoting the 2000 case Bush v. Gore. “[Rehnquist] declined to give effect to interpretations of Florida election laws by the Florida Supreme Court that impermissibly distorted them beyond what a fair reading required.”
“We do not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause,” Roberts said. “We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”
“State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause. But federal courts must not abandon their own duty to exercise judicial review,” the majority concluded. “In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution.”
Justice Brett Kavanaugh joined Roberts’ opinion, but wrote separately to make clear, “Federal court review of a state court’s interpretation of state law in a federal election case should be deferential, but deference is not abdication. I would adopt Chief Justice Rehnquist’s straightforward standard.”
Justice Clarence Thomas dissented, joined fully by Justice Neil Gorsuch, and with Justice Samuel Alito joining most of the dissent.
“The Court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it. To do so would be to violate the oldest and most consistent thread in the federal law of justiciability,” Thomas began. “The opinion that the Court releases today breaks that thread.”
“This is a straightforward case of mootness. The federal defense no longer makes any difference to this case— whether we agree with the defense, disagree with it, or say nothing at all, the final judgment in this litigation will be exactly the same,” Thomas declared. “The majority does not seriously contest that fact. Even so, it asserts jurisdiction to decide this free-floating defense that affects no live claim for relief.”
In that regard, the dissenting concluded:
In short, this case is over, and petitioners won. The trial court’s original final judgment in favor of petitioners, affirmed by the State Supreme Court … represents the final determination of the rights of the parties in this case. [The previous case] has been overruled, and plaintiffs-respondents’ claims for relief have been dismissed on adequate and independent state-law grounds. As a result, petitioners’ alternative Elections Clause defense to those claims no longer requires decision; the merits of that defense simply have no bearing on the judgment between the parties in this action. That is the definition of mootness for an issue.
But since the majority addressed the merits of the case, so did Thomas, writing that “a federal function derived from the Federal Constitution . . . transcends any limitations sought to be imposed by the people of a State.”
He quoted previous Supreme Court precedents that “held that the Elections Clause is the exclusive delegation of such power, as no other constitutional provision gives the States authority over congressional elections.”
The Elections Clause is not referring to state courts, Thomas wrote, because “Legislature” in the Constitution “generally means the representative body which makes the laws of the people.”
“In prescribing the times, places, and manner of congressional elections, the lawmaking body or power of the state, as established by the state Constitution, performs a federal function derived from the Federal Constitution, which thus transcends any limitations sought to be imposed by the people of a State,” he wrote, quoting prior precedent.
“The majority rejects petitioners’ conclusion, but seemingly without rejecting any of the premises from which that conclusion follows,” Thomas added.
“The majority opinion ends with some general advice to state and lower federal courts on how to exercise judicial review in cases implicating the Elections Clause,” Thomas continues. “As the majority offers no clear rationale for its interpretation of the Clause, it is impossible to be sure what the consequences of that interpretation will be.”
Thomas ended with a word of caution:
In the end, I fear that this framework will have the effect of investing potentially large swaths of state constitutional law with the character of a federal question not amenable to meaningful or principled adjudication by federal courts. In most cases, it seems likely that the “the bounds of ordinary judicial review” will be a forgiving standard in practice, and this federalization of state constitutions will serve mainly to swell federal-court dockets with state constitutional questions to be quickly resolved with generic statements of deference to the state courts. On the other hand, there are bound to be exceptions. They will arise haphazardly, in the midst of quickly evolving, politically charged controversies, and the winners of federal elections may be decided by a federal court’s expedited judgment that a state court exceeded the bounds of ordinary judicial review in construing the state constitution.
“I would hesitate long before committing the Federal Judiciary to this uncertain path,” Thomas concluded.
The case is Moore v. Harper, No. 21-1271 in the Supreme Court of the United States.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department.
COMMENTS
Please let us know if you're having issues with commenting.