Donald Verrilli wants N.C. lawmakers to lose their battle over redistricting in the Moore v. Harper case at the U.S. Supreme Court.
But it’s possible that Verrilli has helped Republican legislators. He spelled out a legal standard during the case’s Dec. 7 oral arguments that could help deliver a victory for lawmakers next June.
Moore v. Harper has generated plenty of hyperbole and spin. Critics of North Carolina’s legislative leaders say they seek a ruling that would generate electoral chaos and threaten democracy.
Yet the actual questions before the Supreme Court are fairly straightforward: Did North Carolina’s state courts overstep their authority in the state’s recent congressional redistricting process? Did state courts have the right to throw out a congressional district map drawn by lawmakers? Did state courts have the right to substitute their own map, drawn by outside “special masters”?
To answer those questions, the nation’s highest court must determine what degree of authority state courts have in reviewing redistricting decisions.
The Elections Clause of the U.S. Constitution says a state “legislature” shall prescribe the “times, places, and manner” of holding congressional elections, subject to limits set by Congress itself.
Yet no one participating in the three hours of oral arguments on Dec. 7 suggested that state courts have zero role in the redistricting process. All parties appeared to agree that a state court could review lawmakers’ election maps for violation of federal constitutional standards.
The legal dispute focuses instead on courts’ use of state constitutional standards when reviewing election maps.
David Thompson, the attorney representing N.C. legislative leaders, suggested that state courts could apply “procedural” limitations to lawmakers’ actions, but no “substantive” limitations.
That distinction didn’t sit well with Justice Amy Coney Barrett, whose vote lawmakers are likely to need to win their case. Barrett reminded Thompson that it’s a “hard line to draw” when judges try to separate substance from procedure.
Roughly an hour after Barrett’s exchange with Thompson, Verrilli offered justices a different approach. A former U.S. solicitor general during the Obama administration, Verrilli represented N.C. executive branch agencies in Moore v. Harper. Led by Democrats, state government’s executive branch opposes Republican lawmakers’ legal efforts.
Verrilli supported a large role for state courts in reviewing legislators’ redistricting decisions. Federal courts would reverse state court decisions on rare occasions.
“How far would you go with that?” asked Justice Clarence Thomas. “There’s been some discussion about we can only review state courts at a sky-high level or a stratospheric level. … How would you articulate our review standard?”
Verrilli responded with a “clear, correct standard” for reviewing N.C. state courts’ actions in Moore v. Harper. “You’d ask whether the state decision is such a sharp departure from the state’s ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law.”
That’s a “highly deferential test,” in Verrilli’s view, meaning that the Supreme Court would grant state courts significant leeway. Justices would recognize that different states interpret their constitutions in different ways, he said.
“Does the state court decision impermissibly distort beyond any fair reading the state law,” Verrilli summarized the chief question for the U.S. Supreme Court.
Verrilli’s idea intrigued justices who might be inclined to support N.C. lawmakers’ case.
Justice Neil Gorsuch tied Verrilli’s standard to a related question: “Has the judicial opinion … gone so far afield that we can no longer say as a matter of federal law that the legislature is the one who prescribed the time, place, and manner? Is that a fair understanding of our task here?”
Verrilli conceded that Gorsuch had addressed the “underpinning of the idea.” “What you’re trying to solve for is the problem of a state court going so far afield and being so disconnected from existing precedent, from history … that you would come to the conclusion that they’re really not engaging in the function of judicial review.”
Justice Samuel Alito, a vocal critic of N.C. courts’ actions in Moore v. Harper, pounced on Verrilli’s remarks.
“Is your standard a standard that could be flunked?” Alito asked. “The worst thing we could do, although it might be attractive for some reasons, is to say, ‘Well, there is a limit, but it’s one that in practice can never be exceeded.’ So we have a standard, but it doesn’t mean anything.”
Alito then subjected N.C. courts’ redistricting decision to Verrilli’s standard. “Boy, that seems awfully close to what you said would be a violation,” he told Verrilli. “There’s 100 pages of elaboration, but basically at the beginning they say what they’re doing. Basically, they’re saying, in no uncertain terms, ‘Look, there’s legislative malfunction here. The legislature has adopted political gerrymandering. It’s really hard to amend the state constitution, and we don’t have a referendum to correct it. So there’s a big problem in the state, and we have to step in.’”
In Alito’s view, the N.C. Supreme Court admitted to taking an action well outside the standard process of judicial review.
Alito’s discussion with Verrilli left Justice Elena Kagan feeling “uneasy.” Kagan made no secret of her opposition to N.C. lawmakers’ arguments, noting her fears that a win for the N.C. legislature could have “big consequences.” It could enable legislatures to “get rid of all kinds of voter protections.”
Looking at Verrilli’s standard, Kagan asked, “Is there a danger it’s going to be satisfied too easily?”
“Every single one of us on this bench has written opinions at times saying that other judges … have engaged in policymaking rather than in law,” Kagan said. “It’s just sort of one of the things that judges say when they really disagree with another opinion.”
To Kagan, the Verrilli standard might make it easier for her colleagues to strike down state court decisions they oppose.
It’s unlikely that we’ll learn before June whether Gorsuch, Alito, Kagan, or any other justice will respond formally to Verrilli’s suggestions.
But he might have opened the door for justices to articulate a “clear, correct standard” for rejecting N.C. courts’ actions in Moore v. Harper.
Mitch Kokai is senior political analyst for the John Locke Foundation.