The main dispute in Moore v. Harper, currently pending before the Supreme Court, is whether state legislatures may be constrained by other state actors (such as state courts applying state constitutional provisions protecting voting rights) when they pass rules in federal elections. The argument that legislatures are unconstrained is one based on the language in the Elections Clause (Art. I, section 4) that gives state “legislatures” the right to set the “manner” of conducting congressional elections, subject to congressional override. The question is whether to read the term “legislature” in the context of a state’s lawmaking process, which normally includes state judicial review an application of the state constitution. In Moore, the North Carolina Supreme Court held that the state constitution limited the state legislature’s partisan gerrymandering of congressional districts.

A bunch of briefs got filed today supporting Petitioner and arguing that the Supreme Court can have no role. But those briefs all assume that Congress could override state legislatures on setting rules for congressional redistricting.

All except for Missouri’s brief, for John Ashcroft, the Secretary of State. It makes a convoluted legal argument that redistricting is not a “manner” of conducting elections, and so the Elections Clause would not apply. Under this argument, Congress would have no power to override a state partisan gerrymander of congressional districts. In this view, under the Tenth Amendment, Congress cannot say anything about how states redistrict for congressional elections. From the brief at page 22: “Suppose the Missouri legislature passes a 7R-1D map; absent compactness or racial concerns, can Congress nevertheless revise that map as a 4R-4D map? If Congress can ‘make or alter’ state maps, can it do so for purely partisan reasons?” So the state legislature can engage in whatever partisan gerrymandering it wants, but Congress can do nothing.

Missouri’s theory is bonkers for a few reasons. First, if it were true that redistricting was not covered by the Elections Clause and Congress had no role, why would it follow that the Constitution gives plenary power to gerrymander to the state legislature? Instead, the power to draw districts would be determined under state law, which presumably includes the state supreme court applying the state constitution.

If Missouri was correct, then Congress would lack the power it currently asserts in a federal statute to require congressional redistricting to be done with single member districts.

And if Missouri was correct, then the Supreme Court in a series of cases in which the Court noted that Congress could act to regulate redistricting were wrong. Missouri’s brief on that point says: “To the extent the Court concludes Rucho, Arizona State Legislature, and Vieth nevertheless control, for the reasons articulated in this Brief, those cases should be overruled to the extent they conclude redistricting falls within the ambit of the Elections Clause. See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2265 (2022) (‘An erroneous interpretation of the Constitution is always important’ under existing stare decisis doctrine).”

And if Missouri was correct, it would mean that Congress would lack the power under the Voting Rights Act to require minority voting rights to be considered in drawing congressional districts. This last point shows that Missouri ignores Congress’s other powers to act to regulate redistricting, such as enforcing the 14th and 15th amendments.

I don’t expect this argument to get traction. But I’m surprised that Missouri would go out on a limb like this.