Hans von Spakovsky / December 9, 2022

Key Provision of Constitution in Play as Supreme Court Hears Election Case

If state courts are given the power to overturn everything legislatures do, even more litigation will result.

The Supreme Court heard oral arguments Wednesday in Moore v. Harper, a case that turns on the meaning of a key provision in the Constitution outlining the Framers’ structure for congressional elections.

It is a complex case and although it’s difficult to predict how the high court will rule, the justices sharply questioned lawyer David Thompson, who represents the North Carolina legislators who petitioned the court for review.

Thompson was up against two former solicitor generals of the U.S. representing private plaintiffs, as well as the current solicitor general, Elizabeth Prelogar, because the Biden administration has taken the opposing side in the case.

The state legislators, in what Justice Elena Kagan acknowledged is a “novel challenge,” are contesting the actions of the North Carolina Supreme Court. The lawmakers claim it is unconstitutional for state courts to override the decisions of state legislatures in passing election laws and drafting congressional maps that fully comply with all the requirements of federal law.

State courts shouldn’t be able to change such laws or devise their own legislative maps — often to reach a partisan result — based on novel and unprecedented interpretations of state constitutions, the legislators argue. This, they say, is barred by the Constitution’s elections clause[MK1] .

The elections clause, Art. I, Sec. 4, states that the “Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature,” although Congress retains the authority to “alter such Regulations.”

Setting the times, places, and manner of congressional elections includes drawing the boundary lines of congressional districts after each U.S. census. And note that this authority is not given to “states,” but specifically to state legislatures.

Here, the liberal North Carolina Supreme Court, in a party-line vote of 4-3, rejected the congressional redistricting map devised by the conservative state legislature as a “partisan” gerrymander favoring Republican candidates. The court cited broad, open-ended guarantees in the state constitution of free elections, a right to assemble, freedom of speech, and equal protection of the laws.

No specific provision of the state constitution bars the consideration of partisanship in drawing the boundary lines of legislative districts. In fact, the term “partisan gerrymander” does not appear anywhere in it.

The state’s highest court drew up its own legislative map and ordered the state to use that map in the 2022 election cycle.

It should be noted that North Carolina has been a state since 1789 and Democrats controlled the Legislature from 1870 to 2010. In that entire time, the state Supreme Court never recognized a ban on partisan redistricting in the state constitution until this year, when the court’s four Democrat judges suddenly discovered such a prohibition.

So, this case involves basic constitutional questions: Do state legislators have the power, under the elections clause of the U.S. Constitution, to draw the boundary lines of congressional districts (and establish rules for such elections) under the ultimate supervision of Congress? Or do state courts have the authority to take that power away from state legislatures and dictate both boundary lines and election rules?

Justice Clarence Thomas started the questioning Wednesday by pointing out to Thompson, the lawyer for the North Carolina lawmakers, that the Supreme Court doesn’t “normally review state supreme courts’ interpretations of state constitutions,” so why does the nation’s highest court have jurisdiction over this case?

Thompson’s answer: The legislators aren’t asking the U.S. Supreme Court to “second-guess” the state Supreme Court’s interpretation of the North Carolina Constitution. Although the legislators “take the North Carolina Supreme Court’s decision on face value,” they contend that the state court’s decision violated the elections clause of the U.S. Constitution.

A great deal of back-and-forth occurred between Thompson and several justices, including Sonia Sotomayor and Ketanji Brown Jackson, about the early history of the elections clause and its application to the states.

Thompson, in answer to a question from Jackson, took the position that although state constitutions can impose various procedural election rules, they cannot impose substantive rules that place limitations on the “exercise of the federal function” carried out by state legislatures under the elections clause. The legislators’ lawyer gave as an example a requirement that a governor be “presented” with an election bill for possible veto as being a procedural rule, not a substantive one.

In answer to a question from Chief Justice John Roberts, Thompson said that because of the elections clause, the North Carolina Supreme Court couldn’t impose a “substantive limit” on the Legislature’s redistricting process by claiming it was a partisan gerrymander.

Thompson also pointed to a U.S. Supreme Court case in 2019, Rucho v. Common Cause, in which the high court held that partisan gerrymandering doesn’t violate the U.S. Constitution. He said the Supreme Court noted in that case “a lack of judicially manageable and discoverable standards” for a court to determine how much partisanship is somehow unlawful.

“When the state Supreme Court was freed of standards and rules, it was no longer acting as the judiciary [and it] was taking legislative power,” Thompson added.

Sotomayor, who dissented in the Rucho decision, obviously didn’t like that answer. She claimed that Thompson was saying “there are no judicially enforceable standards to interpret the freedom of speech, freedom of assembly, and equal protection clauses of the Constitution because they, on their face, would appear to be as unmanageable.” This was a bizarre leap in logic, with which Thompson strenuously disagreed.

When asked by Justice Brett Kavanaugh what was the best case supporting the position of the North Carolina Legislature, Thompson cited Bush v. Gore where the Supreme Court in 2000 vacated the Florida Supreme Court’s decision and concluded, in his words, “there could not be any limit on the power of the state legislature.”

Finally, Thompson struck back at the Left’s hysterical claims that if the U.S. Supreme Court rules in favor of the North Carolina Legislature, it will be the “end of democracy” because there will be no limitations on what state legislatures can do.

Kagan echoed this hysteria when she engaged in a long soliloquy in which she claimed that the legal theory being advanced would allow state legislatures “to suppress votes, to dilute votes, to negate votes, to prevent voters from having true access and true opportunity to engage in the political process.”

Thompson denied that strenuously, arguing that “checks and balances do apply, but they come from the federal Constitution and the panoply of federal laws like the Voting Rights Act and other statutes that are highly protective of voters.”

So, there is “the legal check from federal law,” he said, and also “the political check that the Founders envisioned” of Congress, which, under the Constitution’s elections clause, has the final authority to set the times, places, and manner of congressional elections and thus may override any and all such state election rules.

The general argument of the other side, as outlined by the U.S. solicitor general, Prelogar, was that “state legislatures enacting election laws have operated within the bounds of their state constitutions enforced by state judicial review” throughout America’s entire history, and that the Supreme Court should not upset this with a “destabilizing interpretation of the elections clause.”

Prelogar was questioned at length by Thomas as well as Justice Neil Gorsuch. At one point, Thomas commented that it seemed “a bit ironic” that Prelogar and the Justice Department were “on the other side of the federalism issue.”

The solicitor general’s answer to that was even more ironic. While acknowledging that he elections clause provides federal oversight of state election laws, she argued that this oversight must be “highly deferential.”

Given the multiple lawsuits filed by the Justice Department against states over election reforms such as voter ID requirements, the last thing this Justice Department has been is “highly deferential.”

How the Supreme Court will rule in this case is anyone’s guess. But one point made by Thompson at the end of his rebuttal is certainly true. Prelogar and other opponents have claimed that a huge increase in election litigation would occur if the high court rules in favor of the North Carolina Legislature.

But as Thompson explained, the exact opposite is true: If state legislatures are “deprived [of] a central role” in election rulemaking and state courts are given the power to overturn everything legislatures do, citing amorphous state constitutional provisions, even more litigation will result. That’s because plaintiffs will contest every election law, rule, and regulation they don’t like but were unable to change through the democratic, legislative process.


Republished from The Daily Signal.

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