The Supreme Court Has a Perfectly Good Option in Its Most Divisive Case
In Moore v. Harper, the justices should not side with the views of either party.
Later this term, the Supreme Court will decide Moore v. Harper, a case that has been pitched as a seismic clash between two troubling positions. One side asks for state legislatures to be freed from the traditional safeguards of state constitutional law, while the other asks the Court to effectively ignore the text of the Constitution. The Court should look beyond these unsupportable positions and take a commonsense middle ground. Fortunately, one is readily available: an approach that maintains the Constitution’s emphasis on state legislatures without divorcing them from their traditional constitutional constraints.
The Constitution contains two clauses that give power over congressional and presidential elections to each state’s “legislature”—not to the states generally, but to each state’s “legislature.” Similarly, other clauses in the Constitution specifically refer to state executives, judges, and conventions, while others, by contrast, mention “states” without specifying a particular institution.
In Moore, the North Carolina legislature passed a law drawing new district boundaries, but the state supreme court concluded that the map was a partisan gerrymander in violation of provisions of the state constitution requiring that elections be “free” and that all people receive “equal protection of the laws.” It then adopted a map that had been commissioned by the trial court, which had appointed a team of experts independent of the litigants. The court’s map was less politically favorable to the leaders of the legislature who had orchestrated the original redistricting.
Those leaders have taken that decision to the U.S. Supreme Court, arguing that the state court usurped authority vested in the legislature by the U.S. Constitution. Relying on a theory called the “independent state legislature doctrine,” they contend that because the legislature is exercising a power that derives from the federal Constitution, legislative discretion cannot be limited by state constitutional law. That would mean that state legislatures drawing legislative districts are not subject to state judicial review at all.
In response, the state board of elections and allied private parties contend that the term legislature in the Constitution is just another way of referring to the states, and thus that the federal Constitution does not limit the power of a state court to overrule its legislature. Whether the North Carolina courts were right to replace the legislature’s map, they argue, is purely a question of state law and not reviewable by the Supreme Court.
We think neither of those positions is convincing. The state respondents would rewrite the Constitution to replace the term legislature with the term state. Given the specific references to legislature, executive, judges, and conventions in various parts of the Constitution, it is not plausible to think that these institutional designations can be disregarded as meaningless. Rather, the Framers of the Constitution appear to have believed that a power so central to democratic governance should be vested in the branch of state government that is most representative of its people.
The state legislative petitioners, for their part, ignore the fact that the state legislature is created and governed by the people of the state through their state constitution. Even in matters of election law, the state legislature meets when and where its constitution says to meet and is organized the way the state constitution says it’s to be organized. There is no reason to think that the Framers of the federal Constitution intended to liberate state legislatures from the ordinary constraints of state constitutional law.
Neither history nor precedent resolves this dispute. On several occasions, justices constituting a plurality, or writing non-authoritative asides (which lawyers call “dicta”), have endorsed some version of the independent-state-legislature doctrine, but never in a holding and never in the unqualified way now being argued by the North Carolina legislators.
Missing from the debate has been a key principle that points to a sensible middle ground: A state constitution may limit a legislature’s power over federal elections, but it may not give that power to somebody else. We need not an independent-state-legislature doctrine, but a constitutional-state-legislature doctrine.
In a constitutional republic like ours, legislatures ultimately derive their authority from the people. This authority is conveyed through written constitutions that charter the government, vest power in different branches, and regulate the exercise of that power. A state legislature’s power to pass laws should be seen through this constitutional lens. Because state legislatures derive their lawmaking power from their own people, their authority is limited to what their state constitution gives them. When the federal Constitution gave state legislatures additional authority, it took them as it found them, as created by state constitutions rather than a new free-floating entity. State legislatures are not independent of their constitutions.
But the claim that state courts may hold state legislatures to state constitutional limits does not mean that they can replace the legislature. The federal Constitution’s text explicitly empowers one of these branches to regulate federal elections, not the other. (There is one Supreme Court case from 2015 that adopted a very capacious definition of legislature to uphold an independent redistricting commission, but that decision was 5–4, distinguishable, and, most important, wrong.) State legislatures must act according to their state’s constitutional constraints. But it must still be the state legislatures that act.
What does this principle mean for concrete cases?
It means that state constitutional provisions can restrain legislative districting, such as by limiting the use of partisan gerrymandering. The broad challenge to state constitutional law in Moore therefore should fail. But it also means that the North Carolina courts do not have independent constitutional power to adopt their own map.
In the past few decades, courts in redistricting cases have sometimes taken to seizing the pen and drawing their own map, advised by experts. Court-drawn maps are especially common when a legislature is slow or inadequate at fixing constitutional problems with its own proposals. This judicial mapmaking may sometimes offer the veneer of a nonpolitical, nonpartisan process. But more often it draws the courts into an inherently political exercise, where their decisions necessarily appear to benefit one party or the other. Recall that many state supreme courts are elected, sometimes along partisan lines. Giving these courts power to draw electoral maps breeds cynicism about the political nature of judging.
Moreover, the practice of court-drawn maps does not have an extensive constitutional pedigree. No such thing occurred in the early years of the republic. It was an innovation of the mid–20th century, emerging from modern trends in election law. The practice has never been put to the authoritative constitutional test.
In the 2002 case Smith v. Clark, a federal court held that court-drawn maps violated the federal Constitution’s reference to state “legislature[s].” This ruling was vacated by the Supreme Court because it proved unnecessary—the court-drawn maps in that case were enjoined under the federal Voting Rights Act, leaving the constitutional issue for another day. Perhaps that day has now come.
Without the power to draw maps, courts would be limited to their more traditional role of determining whether the acts of the political branches comport with the constitution. Their remedial authority would be limited to enforcing the law and blocking unconstitutional acts, not to assuming the powers of the legislatures for themselves—just as when the courts declare a law unconstitutional, they do not write a new one to replace it. Additionally, the Constitution gives Congress the power to regulate congressional elections as well, so there is another politically accountable source of law if traditional judicial review proves insufficient.
A further possible implication of this principle is that in certain instances, a state-court interpretation of state law might be so far-fetched that, in reality, the court is legislating and not interpreting. This could transform what ordinarily would be a question of state law into a federal question. State judicial decisions were challenged on this basis in Florida in the 2000 presidential election, and in Pennsylvania in the 2020 presidential election, for example. But the Florida case was ultimately decided on other grounds, and the Pennsylvania case proved not to matter to the election’s outcome.
This kind of federal review might become necessary if a state supreme court truly went rogue, but it presents serious conceptual difficulties. It would require federal courts to decide how state law should be interpreted, which is normally a state law matter, and to draw lines between state-court decisions that are wrong but reasonable and those that are beyond the pale. There is no objective metric for judgments of that sort. Ultimately, if state courts are limited to their traditional role of judicial review, and stripped of their modern remedial power to take the power of districting upon themselves, the need for this radical step can probably be avoided.
The Supreme Court’s job is of course to enforce the Constitution, even when the results are inconvenient for modern practice. But in Moore v. Harper it can do its job through the constitutional-state-legislature doctrine, without accepting the more aggressive arguments for preempting all of state constitutional law. Fidelity to the constitutional text requires no more.