Supreme Court Decides Moore v. Harper

On June 27, 2023, the Supreme Court of the United States decided Moore v. Harper, No. 21–1271, holding that the Elections Clause of the United States Constitution does not preclude state courts from reviewing state legislative enactments governing federal elections.

The case concerned the map that North Carolina enacted to set legislative districts for its members of Congress following the 2020 census. The North Carolina League of Conservation Voters, Common Cause, and several individual voters filed suit in North Carolina state court and alleged that the federal congressional map put in place for the 2022 elections violated a provision of the state constitution—which states that “all elections shall be free”—because it was an unconstitutional partisan gerrymander. These parties alleged that even though partisan-gerrymandering claims are beyond the reach of the federal courts, they could be adjudicated in state courts under state constitutional provisions.

A state trial court held that partisan-gerrymandering claims could not be heard in state courts, but the North Carolina Supreme Court reversed. It held that partisan-gerrymandering claims could be adjudicated in state courts, and that the map that North Carolina had enacted violated the state constitution’s free-elections clause. It remanded to a lower court to oversee redrawing of North Carolina’s federal congressional districts.

In response, the North Carolina legislature and various affiliated parties sought review at the U.S. Supreme Court. They argued that the Constitution’s Elections Clause—which states that the “Legislature” of each state shall prescribe the “Times, Places and Manner” of federal elections—prohibited North Carolina’s state courts from playing any role in drawing maps for federal elections. This is a theory known as the “Independent State Legislature” theory. 

The Supreme Court granted certiorari to decide whether or to what extent to adopt the Independent State Legislature theory. After briefing and argument at the Supreme Court, the North Carolina Supreme Court granted rehearing, repudiated its initial opinion, and determined partisan-gerrymandering claims were non-justiciable under the North Carolina Constitution. The U.S. Supreme Court then requested supplemental briefing concerning whether this development affected its jurisdiction or otherwise mooted the case.

In a 6-3 opinion, the Supreme Court answered two questions: one on jurisdiction, and one on the merits of the Independent State Legislature theory. First, it held that it did retain jurisdiction over the appeal despite the later rehearing proceedings by the North Carolina Supreme Court. The North Carolina Supreme Court’s repudiation of the “reasoning” underlying the justiciability of partisan-gerrymandering claims did “nothing to alter the effect of the judgment” on the district maps. Therefore, the controversy surrounding the state statute “remain[ed] live.”

Turning to the merits, the question presented was “whether the Elections Clause insulates state legislatures from review by state courts for compliance with state law.” The Court answered this question in the negative: based on the history of the Elections Clause, as interpreted over a century of precedent, the Court held that the Elections Clause “does not insulate state legislatures from the ordinary exercise of state judicial review.”

The Court tied this “fundamental principle” of judicial responsibility to review state laws to its earliest precedents, including Trevett v. Weeden (1786), Marbury v. Madison (1803), and continuing through Ohio ex rel. Davis v. Hildebrandt (1916), and State ex rel. Smiley v. Holm (1931). This principle was also confirmed by state precedents issued even before adoption of the United States Constitution. These authorities all provided that state legislatures must exercise their Elections Clause powers “in accordance with the method which the State has prescribed for legislative enactments”—which included entities other than the state legislature playing a role in setting rules for federal elections. The Court thus rejected the argument—commonly known as the Independent State Legislature theory—that only state legislatures, and not state courts, can play a role in setting rules for congressional elections. Of course, state legislatures act in their lawmaking capacity when drafting statutes for congressional elections, but those statutes remain “subject to the ordinary constraints on lawmaking in the state constitution,” including state-court judicial review.

Still, the Court concluded that state court review is not without limits. It instructed that state courts “do not have free rein,” such that federal courts could step in and review whether state court interpretations of state law in the realm of federal elections were constituent with the Constitution. In the Court’s words: in questions “where the exercise of federal authority or the vindication of federal rights implicates questions of state law,” federal courts have an “obligation to ensure that state court interpretations of that law do not evade federal law.”

Chief Justice Roberts delivered the opinion of the Court, in which Justices Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson joined. Justice Kavanaugh filed a concurring opinion. Justice Thomas filed a dissenting opinion that was joined by Justice Gorsuch and Justice Alito as to Part I.