- The U.S. Supreme Court has ruled in Moore v. Harper, 6-3, that state courts can review congressional election maps drawn by legislatures. The ruling affirms a 2022 decision by North Carolina's Supreme Court.
- The decision could have limited practical impact. A new state Supreme Court, with a 5-2 Republican majority, threw out the 2022 decision in April. The state's high court decided it would no longer address cases involving accusations of partisan gerrymandering.
- Three dissenting U.S. Supreme Court justices, led by Justice Clarence Thomas, argued that the court should have dropped the Moore v. Harper case.
- While the court's majority agreed that state courts could review congressional election maps, it said federal courts would continue to review state court decisions. State courts do not have "free rein" to throw out maps without cause.
The U.S. Supreme Court has voted 6-3 to affirm the N.C. Supreme Court’s 2022 ruling against a congressional map drawn by a Republican-led legislature. Tuesday’s decision in Moore v. Harper could have little practical impact, since the state’s highest court overturned its 2022 ruling in April.
The most recent N.C. Supreme Court ruling means state lawmakers can draw new election maps without any of the restrictions imposed by last year’s court decisions.
In a majority opinion authored by Chief Justice John Roberts, the U.S. Supreme Court’s majority ruled Tuesday that the U.S. Constitution’s Elections Clause does not free legislatures from state court review when they draw congressional maps. Freedom from state court review was characterized by critics as the Independent State Legislature doctrine.
Roberts and the majority added that state courts could not “exceed the bounds” of ordinary judicial review in cases involving the federal Elections Clause. Federal courts can review and reject future state court decisions about election maps.
Justice Brett Kavanaugh added a concurring opinion that would set a standard for federal court review of state court decisions in Elections Clause cases.
Dissenters led by Justice Clarence Thomas argued that the U.S. Supreme Court should have dismissed the case. Thomas wrote that the April N.C. Supreme Court decision granted state legislative leaders the relief they were seeking. The nation’s highest court should have declared the case moot, he wrote.
While the U.S. Supreme Court majority agreed that N.C. courts could review state lawmakers’ work on the congressional map, justices did not determine whether the N.C. Supreme Court deviated from the state constitution in issuing its challenged 2022 ruling. The high court majority agreed that lawmakers failed to make a case that the state Supreme Court had misread North Carolina’s governing document.
“State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause,” Roberts wrote. “But federal courts must not abandon their own duty to exercise judicial review. 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.”
“Because we need not decide whether that occurred in today’s case, the judgment of the North Carolina Supreme Court is affirmed,” Roberts concluded.
Roberts and the majority dismissed the notion that state courts have no role in reviewing Elections Clause cases.
“The idea that courts may review legislative action was so ‘long and well established’ by the time we decided Marbury in 1803 that Chief Justice Marshall referred to judicial review as ‘one of the fundamental principles of our society,’” Roberts wrote.
“We are asked to decide whether the Elections Clause carves out an exception to this basic principle. We hold that it does not,” Roberts explained. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”
State constitutions can affect the way legislators draw election maps, Roberts added. “The legislative defendants and the dissent both contend that, because the Federal Constitution gives state legislatures the power to regulate congressional elections, only that Constitution can restrain the exercise of that power.”
That argument “simply ignores” precedent cases that “rejected the contention that the Elections Clause vests state legislatures with exclusive and independent authority when setting the rules governing federal elections.”
“The argument advanced by the defendants and the dissent also does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life,” Roberts wrote.
“[O]ur 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,” he added.
Roberts and the majority refused to set a standard that would determine when a state court oversteps its bounds in reviewing maps drawn under federal Elections Clause authority. The chief justice specifically rejected possible tests put forward in earlier high court decisions.
“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. The questions presented in this area are complex and context specific,” the chief justice explained. “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.”
In the Moore v. Harper case, justices punted on a review of the N.C. Supreme Court’s actions. “We decline to address whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause,” Roberts wrote. “The legislative defendants did not meaningfully present the issue in their petition for certiorari or in their briefing, nor did they press the matter at oral argument.”
Kavanaugh supported the majority opinion. But he also suggested the court could adopt a standard for reviewing state court action in Elections Clause cases. “The question … is what standard a federal court should employ to review a state court’s interpretation of state law in a case implicating the Elections Clause,” he wrote. Citing three possible standards, he added, “As I see it, all three standards convey essentially the same point: 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.”
Kavanaugh endorsed an idea first put forward by then-Chief Justice William Rehnquist in the landmark Bush v. Gore case. “Chief Justice Rehnquist’s standard is straightforward: whether the state court ‘impermissibly distorted’ state law ‘beyond what a fair reading required.’”
Thomas’ dissent chided the court majority for taking any action in Moore v. Harper. He accused the majority opinion of breaking with the tradition of avoiding advisory opinions that don’t address an active legal dispute.
“It ‘affirms’ an interlocutory state-court judgment that has since been overruled and supplanted by a final judgment resolving all claims in petitioners’ favor,” Thomas wrote. “The issue on which it opines — a federal defense to claims already dismissed on other grounds — can no longer affect the judgment in this litigation in any way. As such, the question is indisputably moot, and today’s majority opinion is plainly advisory.”
“This is a straightforward case of mootness,” he explained. “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. 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, reasoning that a justiciable case or controversy exists as long as its opinion can in any way ‘alter the presently operative statutes of’ a State.”
Thomas accused the majority of acting “as an ad hoc branch of a state legislature. That is emphatically not our job.”
The impact of Tuesday’s decision is complicated by the fact that the N.C. Supreme Court shifted course on North Carolina’s congressional election map earlier this year. After voters replaced two Democratic justices with Republicans in the November election, the court shifted from a 4-3 Democratic majority to a 5-2 Republican majority.
Republican legislative leaders had challenged rulings from the Democratic state court. In April, the new state Supreme Court rejected the old court’s decision. That means legislative leaders are free to proceed with drawing another congressional election map without the old state court restrictions.
Lawmakers have indicated they plan to engage in the election mapmaking redistricting process at some point after finishing the state budget and wrapping up the rest of this year’s major legislative business.