Some commentary, here at ELB and elsewhere, has critiqued some of the justices’ statements in Moore v. Harper, the partisan gerrymandering case out of North Carolina, as inconsistent with the Court’s decision in Rucho v. Common Cause. But I think the statements in Moore are consistent with Rucho, to the extent one is debating a “weak” theory of the “independent state legislature doctrine” (or, what I’d prefer to call it, a claim arising under the “Legislature Thereof Clause,” a battle I’m sure to lose).
In particular, it’s worth remembering how the Court majority in Rucho handled state judicial involvement in redistricting in Florida and in Pennsylvania, because the majority in Rucho approached each state differently. And I think this distinction identifies the most salient issue that will influence a majority of the Supreme Court in the near future (and will narrow the debate significantly), which may help channel the conversation toward the issues at stake.
From two paragraphs near the end of Rucho:
Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution. League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (2015). The dissent wonders why we can’t do the same. See post, at 31. The answer is that there is no “Fair Districts Amendment” to the Federal Constitution. Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply. (We do not understand how the dissent can maintain that a provision saying that no districting plan “shall be drawn with the intent to favor or disfavor a political party” provides little guidance on the question. See post, at 31, n. 6.) Indeed, numerous other States are restricting partisan considerations in districting through legislation. One way they are doing so is by placing power to draw electoral districts in the hands of independent commissions. For example, in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts. See Colo. Const., Art. V, §§44, 46; Mich. Const., Art. IV, §6. Missouri is trying a different tack. Voters there overwhelmingly approved the creation of a new position—state demographer—to draw state legislative district lines. Mo. Const., Art. III, §3.
Other States have mandated at least some of the traditional districting criteria for their mapmakers. Some have outright prohibited partisan favoritism in redistricting. See Fla. Const., Art. III, §20(a) (“No apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent.”); Mo. Const., Art. III, §3 (“Districts shall be designed in a manner that achieves both partisan fairness and, secondarily, competitiveness. ‘Partisan fairness’ means that parties shall be able to translate their popular support into legislative representation with approximately equal efficiency.”); Iowa Code §42.4(5) (2016) (“No district shall be drawn for the purpose of favoring a political party, incumbent legislator or member of Congress, or other person or group.”); Del. Code Ann., Tit. xxix, §804 (2017) (providing that in determining district boundaries for the state legislature,no district shall “be created so as to unduly favor any person or political party”).
The Court in Rucho approvingly speaks of independent redistricting commissions (essentially ratifying the holding in Arizona State Legislature v. Arizona Independent Redistricting Commission). It approves of ratification of constitutional amendments in the states that place substantive constraints on legislatures in redistricting (again ratifying that holding). And it approves of the Florida Supreme Court’s decision interpreting the “Fair Districts Amendment” (a provision of the state constitution) in finding that a legislative redistricting map ran afoul of that provision.
A “strong” interpretation of the Legislature Thereof Clause would disapprove of all of these actions. Legislature means legislature, so the theory goes, and actions of a commission, purported guidance of a state constitution, and certainly interpretation of a state supreme court would all run afoul of the legislature’s prerogative. That’s not what Rucho says, as Rucho appears to approve all these things.
It is also worth noting that the majority opinion did not cite League of Women Voters v. Pennsylvania (2018), which Justice Kagan mentions repeatedly in her dissenting opinion. In fact, in footnote 6, Justice Kagan explains, “The Pennsylvania Supreme Court based its gerrymandering decision on a constitutional clause providing only that ‘elections shall be free and equal’ and no one shall ‘interfere to prevent the free exercise of the right of suffrage.'” The majority does not engage this claim at all, even though it directly addresses footnote 6 in the above-quoted passage.
In other words, the majority was willing to accept state judicial involvement in a specific antigerrymandering or districting provision of the state constitution (Florida). It is less clear that it was willing to embrace more open-ended state judicial involvement, as its conspicuous silence on Pennsylvania suggests (despite the invitation to address Pennsylvania by the dissenting opinion).
North Carolina’s Constitution does not have a “Fair Districts Amendment” or provide the instruction to the legislature that no districting plan “shall be drawn with the intent to favor or disfavor a political party.” Justice Alito’s dissenting opinion in Moore points out that the North Carolina Supreme Court’s decision rests on “a congeries of state constitutional provisions,” most of which do not mention elections at all. (In some ways, this may be even a step beyond the Pennsylvania decision.) As Justice Alito explained, “there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.”
In other words, a “weak” interpretation of the Legislature Thereof Clause would suggest there is some outer bound to what a state supreme court could do. It’s not entirely inconsistent with some of the other academic proposals that have been floating around. Professor Amar and Dean Amar recently suggest (under the Presidential Electors Clause and involving state statutes), “In the presidential-election case at hand, was the state supreme court doing what it has generally done in other cases (especially cases involving the current presidential-election statute or closely related statutes) in years past?” Professor Shapiro argues that “there may be a federal judicial role in ensuring that state courts do not issue rulings that are so unpredictable or ungrounded that they ‘change the law,’ especially after voters, candidates, parties, and election administrators have relied on previous understandings.”
I certainly don’t assume these scholars agree with Justice Alito on the result of this case (for instance, the conclusion may well be that the North Carolina Supreme Court was doing what it “has generally done in other cases,” or that it was not issuing rulings “so unpredictable or ungrounded,” to borrow the language of their tests). But I do note that the inquiries are closer to one another, rather than a sharp break with the assumptions in Rucho. And this is where the inquiry ought to be in the months ahead.
A lot of commentary is attacking a “strong” interpretation of the Legislature Thereof Clause. (And, to be fair, there’s been some very aggressive litigation on that front, especially after the 2020 election, advancing a “strong” interpretation.) But I think the issues at play in Moore–and the issues at play if the case is heard on certiorari and on a more leisurely timetable ahead of the 2024 election–will be narrower: Is there some outer bound of state judicial involvement, particularly when the state supreme court is not construing a specific antigerrymandering or districting clause?
It might be that a majority of the Court rejects Justice Alito’s approach (as a majority rejected it in this emergency case, for any number of reasons, Purcell among them). There may be “some limit,” as Justice Alito writes, but even the North Carolina Supreme Court’s decision doesn’t traverse it. Freedom of speech or assembly provisions may be of sufficient guidance to state courts and provide sufficiently intelligible principles on districting to apply to federal elections. There may be five votes on the United States Supreme Court to simply leave the matters in the states–vote out judges, amend the state constitution, and so on. That’s not to say the impact may not be significant or important (indeed, five votes the other way, constraining state courts in the construction of their own constitutions, would be a significant restriction). But the formal legal battle, I think, may well be one narrower–and, I admit, one more difficult to articulate with precision.