SCOTUS and Moore v Harper: To Be Democratic Or To Seem Democratic

While I don’t blog on commission, I do sometimes take requests. And my friend Andrew Donaldson, who just happens to be Managing Editor around these parts, asked me to look into the case of Moore v. Harper on behalf of a listener to his podcast.

Hoo boy. This is the main event. Sure, we have a case where we can get back to arguing about gay wedding cakes (or in this case, gay wedding websites) and that’s going to be good culture war fun for everyone. But Moore v. Harper is unquestionably this term’s Very Big Deal for the Supreme Court of the United States.

 

I

The basic conundrum of this case is found in Article I, section 4, clause 1 of the U.S. Constitution, the “Elections Clause” or, more accurately, the “Congressional Elections Clause:”

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.

And let’s not forget that in the Seventeenth Amendment, the election of Senators shall be by those voters who have the same qualifications as those who are eligible to cast ballots for “the most numerous branch of [that state’s] legislature.”

So then we have to confront the question of “May the state legislature act contrary to the state’s Constitution?” and immediately thereafter, “Who gets to decide if the legislature has done that?” Traditional notions of judicial review are that the state’s judiciary gets to decide that, meaning, ultimately, that state’s Supreme Court. Note that the U.S. Supreme Court does NOT get to decide this; the state supreme court is the final authority on questions regarding that state’s law. The U.S. Supreme Court only gets involved if an issue of federal law is implicated.

And relevant here, in 2019 the Supreme Court decided a case called Rucho v. Common Cause, which said that there was no federal right against a map drawn intentionally to achieve a partisan political advantage for the majority party of the legislature drawing it. But state laws, and often state Constitutions, sometimes do forbid such things.

So let’s look at what actually happened in Raleigh, North Carolina in the year and a half since the 2020 census results were published and North Carolina went from 13 to 14 representatives in Congress.

 

II

In Moore v. Harper, the immediate question has to do with the map of Congressional districts in North Carolina. After the 2020 census, North Carolina, like all states, had to redistrict its various legislative maps, and North Carolina does so according to a simple legislative decision; the governor does not get a veto. So in practice, that means that the legislature elected in a year ending in zero draws three maps for the next ten years: one for the State House (120 seats), one for the State Senate (50 seats), and one for Congressional districts (14 seats).

So this happened in November of 2021, and the maps were promptly challenged by various left-of-center groups like the League of Conservation Voters and the NAACP. The trial courts and ultimately the state Supreme Court rules that the maps (as to the Congressional districts, we’ll call this the “Original Legislative Map”) violated Noth Carolina’s state constitution’s prohibition on partisan gerrymanders. This is the Original Legislative Map:

So, after striking this map down, the Wake County Circuit Court (affirmed later by the North Carolina Supreme Court) postponed the 2022 primary election from March to May of this year, and told the General Assembly to try again.

It did, passing a new map in February of 2022. The state legislative maps were approved, but the new Congressional map (the “Revised Legislative Map”) got struck down again. The Court then appointed special masters who drew a map that the Court ordered be used in the primary election. That’s called the “Enacted Map.” It will be used for the election on 08 November 2022. Whether it will be used again thereafter is presently indeterminate.

This is the Enacted Map. Sorry I couldn’t find one with the same color scheme as the map published by the state.

What’s more, we don’t yet know for sure who will win in each of the new districts because the first general election using this map has not yet taken place. Daily Kos did a precinct-by-precinct survey of the newly-drawn districts on the enacted map. Daily Kos found that majorities of voters in seven of the districts voted for Biden and in seven of the districts the majority voted for Trump, so that’s a hint of what will happen.

 

III

So now we have two groups of people. The petitioners to the U.S. Supreme Court are clustered in and around the Republicans. This group wants the Original Legislative Map to be restored. The respondents are clustered around the Democrats, and they want the Enacted Map to be kept. No one is arguing for the Revised Legislative Map.

The Republican petitioners explicitly advance what’s now known as the “independent state legislature” theory. Their claim is that the plain text of the U.S. Constitution gives to a state legislature, and the state legislature alone and unchecked, the authority to draw maps of Congressional districts.

They point to a variety of political decisions made in the early days of the Republic congruent with this, indicating that the idea is not a new one, only a newly-prominent one, and a rejection of a putative proposal by Charles Pinckney in the Constitutional Convention to delegate the initial regulation of Congressional elections to the state as a whole,[1] and other sections of the Constitution which drill down into particular units of state government,[2] which in my opinion does have some persuasive power.

Also of some interest is the legal authority relied upon by the majority of the North Carolina Supreme Court to strike down the two legislatively-drawn maps. Specifically, they cite sections of the state’s constitution that are quite general in scope, specifically the following:

All elections shall be free.

The people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances; … .

Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse.

… No person shall be denied the equal protection of the laws; … . Harper v. Hall, (Feb 12, 2022) 868 S.E.2d 499, citingN.C. Const. Art. I, §§ 10, 12, 14, 19.

From these general principles and tracing through some (but not a lot) of their own precedent interpreting them, the majority arrives at the conclusion that the Legislature is bound by the North Carolina Constitution, that it is the entity that gets to decide whether or not the Legislature acted contrary to it, and that Constitution does not allow the creation of maps which are intended and likely to result in legislative representatives who are “highly non-responsive” to the will of the people and thus such maps are “incompatible with democratic principles.”

The petitioners call these clauses “vague” — and they aren’t wrong! These are broad, general principles of law, as well as aspirational statements of how things ought to be. To distill actionable constitutional principles out of these does require some judicial work. Whether you want to call that work “interpreting the text of the state constitution” or “judicial activism” is probably a matter of perspective. But that’s what the petitioners are appealing from, and this reasoning, pleasing to your author though it may be both in route and destination, may not be the strongest liquor in the cabinet.

 

IV

Probably the strongest argument against the petitioners’ theory, however, is the decidedly inconvenient (to them) fact that pre-existing legislation appears to authorize exactly what the courts did here. Specifically, actions “challenging the validity” of legislative maps, including congressional district maps, may be filed in the Wake County Superior Court and be heard by a three-judge panel, per N.C. Gen. Stat. §1-81.1 and N.C. Gen. Stat. §1-267.1(a); such a court is authorized to identify state constitutional defects in such maps per N.C. Gen. Stat. § 120-2.3, and thereafter to remedy any defects and impose a “substitute plan” including a judicially-drawn map for the next election. N.C. Gen. Stat. § 120-2.4(a)(1).

So you say it’s up to the Legislature to say how maps get redrawn, petitioners? Well, the Legislature did that, and it said the Courts should be involved. The Legislature involved the state courts. It specified a court to hear the case and explicitly empowered that court to do what the courts here did.

Well. I mean. That ends it right there, doesn’t it? It’s not a close call, as I see it. So why is the U.S. Supreme Court hearing this at all?

One possibility is that we need to confront is that the General Assembly could, if it chose, repeal all of these statutes and at least purport to deprive the state courts of the ability to review Congressional maps. How likely it is that this would happen is a question I will leave to people who are operating on the ground politically in North Carolina. But it could happen, so maybe this isn’t completely moot?

Further, based on the reasoning in the underlying case, the North Carolina Supreme Court could find its own basis for acting as it did, independent of any explicit statutory authorization to act, relying instead on the text of the state Constitution – as broad and debatably “vague” as that text may be. So maybe we have “susceptible of repetition” and therefore not moot from that?

But that scenario seems like it’s underripe, to the point of being a hypothetical exercise. Issuing an opinion based on a hypothetical is pretty much an “advisory opinion” and we know Federal courts don’t do that.

 

V

No, what’s going on is the Petitioners argue, a little more quietly than the complaint about what the courts did in this specific case, that these provisions of North Carolina statutory law are also unconstitutional. That would be based on the theory that the state legislature cannot delegate any mapmaking functions to the courts. The argument is that a state legislature’s authority in this sphere is, by the plain text of the Constitution, not only plenary, but exclusive and non-delegable.

And this idea of denying certain kinds of checks to specific branches of government isn’t totally crazy! There’s a case going back to 1983 called INS v. Chadha, 462 U.S. 919, that holds that a “legislative veto” claimed by Congress over a rulemaking agency, in that case the predecessor to the Customs and Border Patrol, is unconstitutional. The idea that a veto is an executive check on legislative power but cannot be a legislative check on executive power has some foundation in precedent.[3] So maybe there simply can’t be a judicial check on at least certain kinds of legislative power, like choosing the “manner” of elections by drawing district maps?

At least one amicus brief argues that the understood meaning of the word “Legislature” in this context, historically, referred to a state’s “law-making apparatus,” not just the formal institution of the Legislature; that the Framers understood that a state legislature would be interacting with that state’s governor and that state’s judiciary in the ordinary process of making laws. This is also not an implausible argument. It has the pleasing twist of demonstrating that a historic textualist approach, which the majority of the Court today claims to favor, can be used to reach the opposite result of what the petitioners seek.

As a general rule, I’d argue that we ought be very cautious about the idea that there are certain kinds of governmental activities that are beyond checks and balances and the more impactful those activities are, the less they should be allowed to go unchecked. Different institutions of government checking and balancing one anothers’ exercise of power is hardwired into our Constitution and was a bulwark of arguments for the Constitution as an instrument of liberty during the ratification debate. It remains so today.

It’s certainly true that even under Petitioners’ theories, Congress can check state legislative power in this arena. Congress can pass laws like the (former) Voting Rights Act. There is no plausible reading of the Congressional Elections Clause that denies that Congress has such power. However, we are faced with the very sad fact that the Supreme Court of the United States is defanging or invalidating the Voting Rights Act section by section, and Congress has failed to respond to this challenge. But that’s a different story for a different day. What matters here is, petitioners can argue that this isn’t an unchecked legal power, because Congress could involve itself in this process if it wants to.

A final consideration here is that it’s generally a losing proposition to tell a Court “Your Honors, you lack the legal power to act here,” because in a legal culture founded upon general acceptance of the concept of judicial review, arguing to a panel of judges that they do not have such a power risks kinship to farting at a funeral. Perhaps you have to do it, and you’re a boor if you don’t at least feel awkward about having done it. The best result you can realistically hope for is that folks who are downwind from it pretend like they didn’t notice it happened and carry on as they were going to anyway. But you also risk generating laughter and condescension.

 

VI

Are the petitioners going to win?

Well, we don’t know. When the case first got filed with the Supreme Court, the petitioners asked for an emergency stay re-implementing the General Assembly’s original map. They lost, but three Justices, Alito, Thomas, and Gorsuch dissented in a four-page opinion that suggests they see substantial merit to the Independent State Legislature doctrine. And we have a somewhat more oblique hint, in Justice Kavanaugh joining this concurrence from Justice Gorsuch, that Kavanaugh is at least warm to the theory.

So are there five votes for this theory? I count Thomas, Alito, and Gorsuch as three. It’s not hard, given the concurrence, to see Kavanaugh as a fourth and Barrett as a plausible fifth. Given that the stay application was denied, we have hints that the Chief may well join his Sisters Sotomayor, Kagan, and Jackson in voting no, but again that’s just a hint. The balance of power on this one looks like it rests with the “center” right triad of Roberts, Kavanaugh, and Barrett.

The stay application gives us more tea leaves to read than we’d normally have, but that’s all they are. Reading tea leaves to count noses is a very chancy proposition, especially before we’ve heard any oral argument. I don’t know, today, who will win.

 

VII

The world could look very different if the petitioners do prevail.

About a third of the states do not use solely their legislatures to redistrict. Some states have entirely separate institutions that exist for no purpose other than redrawing legislative maps every ten years, some of which are independent of any other political institution and others less so. Still others allocate various roles in redistricting to their Governors or Secretaries of State. Most of these states are western. My own Oregon calls in the Secretary of State to draft proposed district maps if the Legislature can’t handle the job on its own; California, where I moved from, has a very elaborate independent commission whose work product is subject to state Supreme Court approval.

Absent Congressional action, state legislatures would be free to gerrymander to their hearts’ content, because in a world where the petitioners won, at least as to Congressional maps, there would be no check on their activities. No state court, no governor, no state constitutional provision could gainsay the maps made by state legislators.

If the Independent State Legislature doctrine prevails, it could be that all of those systems are, wholly or partially, unconstitutional. It would probably take a new case to resolve that, but the result would be next to foregone.

But the bigger issue is the one raised during the 2020 election by a guy who is currently the Republican nominee for Governor in Pennsylvania, Doug Mastriano. Mastriano pointed to a DIFFERENT election clause in the Constitution, article II, section 1, clause 2, which says in relevant part:

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 critical issue being the bit that reads “in such Manner as the Legislature thereof may direct,” which sounds a lot like the language in the Congressional Election Clause. Because if the Constitution’s wording drilling down to the state legislature and ONLY the state legislature also applies to a state’s choice of Presidential Electors….

Why, that would mean that a state legislature could, and debatably would be required, to cancel elections for President of the United States. The state’s legislature could decide on its own, without consulting the state’s voters, who the state’s electors will be. At least one Republican candidate for a Governor’s seat this cycle has signed off on that being something that he might try to make happen.

Just so you know: Democrats control both houses of eighteen states, which combine to total 205 electoral votes. Republicans control both houses of thirty states, which combine to total 305 electoral votes.[4] Who knows what the hell would happen with the District of Columbia, which doesn’t have an independent legislature (anything the City Council passes can be overruled by Congress). Really, it wouldn’t matter. If pushed to its logical extension, this could lock up the White House for Republicans for as long as they can hold 270 electoral votes’ worth of state legislatures, given effectively unlimited freedom to gerrymander as they saw fit.

This wouldn’t mean a permanent national government controlled by Republicans, necessarily, but a very durable one, one which would likely control the House of Representatives and the White House pretty easily until and unless a massive political shift occurred, and one in which the nature of the Senate would give Republicans a significant advantage at achieving a majority there, too.

Now, let’s be clear, that’s an unlikely end game. Before the Great Election Denial Chaos of 2020-2021, we would have laughed this potential off. Today? Realistically, that sort of scenario is still pretty far-fetched, but it is palpably easier to imagine than it would have been even three years ago. But it’s still something I have to regard as so politically unpalatable that I don’t believe it will come true. I have a hard time imagining voters standing for being disenfranchised from voting for President, even if those voters do like the result. Not even the likes of Brad Raffensperger or Mark Brnovich, both highly partisan Republicans and both of whom were under great political pressure after the 2020 election to cheat for Trump, were willing to superimpose their partisan preferences over the voters of their states. The norm of democracy is strong still, despite some loud voices trying to erode it, and the endgame where state legislatures choose Presidential electors instead of voters after generations of popular voting will be, I have to believe, more than the vast majority of Americans will bear.

The real danger is that it will remove yet another check against gerrymandering, which is already too subtle a political trick for most of the public to notice and already entering a brave new era of maximizing partisan control, for both parties, where each holds sway. That will push our legislatures out of alignment with the general mood of the electorates they represent. That will cause disengagement amongst the citizenry and move laws further away from what the voice of the people demands. I don’t think this will overturn democracy as we’re told to fear. I think it will erode it, furthering a destructive process already underway. I hope this doesn’t come to pass, and I try to remember my own advice about counting noses on the Court before oral argument.

But it’s becoming harder every Term to not succumb to dread.

 

VIII

Oral arguments are scheduled for 07 December 2022 at 10:00 a.m. Eastern time. It’s the only case on calendar that day. Highest stakes I can recall since at least Shelby County v. Holder.

Expect a barn burner.

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[1] However, this may not be real. According to an amicus brief authored by constitutional scholars whom Petitioners made the mistake of citing favorably, “The language Petitioners have trumpeted to this Court is phony. This language was no part of the real Pinckney Plan actually presented to the Philadelphia Convention. Beginning around 1819, a bogus document masqueraded as the Pinckney Plan. This bogus document was immediately questioned by James Madison and definitively discredited more than a century ago— facts well known to expert historians. The true story appears in the short Appendix to Farrand’s Records that Petitioners cite but apparently never read to the end.” Which is both a caution about the dangers of goal-focused historical research as well as something that hyper-genteel Supreme Court practitioners would call a “sick burn, dude.”

[2] As cited in Petitioners’ brief: “art. I, § 2, cl. 4 (authorizing ‘the Executive Authority’ of each State to ‘issue Writs of Election’ to fill vacancies); id. art. V (giving state legislatures duties related to proposing and ratifying amendments); id. art. VI, cl. 2 (binding ‘the Judges in every State’ to follow the federal Constitution, laws, and treaties). And the Guarantee Clause specifies with delicate precision that States may request federal intervention against domestic violence through ‘Application of the Legislature, or of the Executive (when the Legislature cannot be convened).'” Id. art. IV, § 4.” Actually, that’s perhaps not a very long list, now that I look at it; the ‘Writs of Election’ clause is at least partly superseded by the Seventeenth Amendment; asking judges to follow the law is about as modest a check on state power as you can imagine; and when have state legislatures ever sought federal intervention against domestic violence, hasn’t that sort of thing always been done by a Governor as a practical matter?

[3] But note: the structure of the legislative veto in Chadha was that if a single house of Congress disapproved of the regulation, then the regulation would be invalid. The theory makes sense: if the rule would not have passed out of one house for approval by the other to become law, it therefore should not be law. The Chadha Court found that this was an independent structural flaw with the proposed legislative veto that Congress had devised in that case, because Congress can only act legislatively, and invalidating a regulation is an act of legislation, and therefore requires the concurrence of both the House and the Senate.

[4] Minnesota and Virginia have split partisan control of their legislatures, and Nebraska’s unicameral legislature is ostensibly non-partisan.