Is there a political question issue lurking in Moore v. Harper?

Plenty of commentary and analysis over Moore v. Harper focuses on the meaning of the Legislature Thereof Clause tucked inside the Elections Clause. But one concept has received essentially zero examination: the political question doctrine. Some of the history of redistricting disputes and the Elections Clause touch on either the notion that review of issues arising under the Clause are left to Congress, not to the federal courts; or that there are no judicially-manageable standards for courts in patrolling the Elections Clause. I thought I’d take a look at those issues ahead of Moore.

The Elections Clause empowers the legislatures in each State to direct the times, places, and manner of holding elections. But Congress has two Article I powers atop this. First, Congress may make or alter these regulations as it sees fit. Second, each house of Congress has the power to be the judge of the elections, returns and qualifications of its own members.

Relatedly, the bulk of precedent in disputes over the Legislature Thereof Clause can be traced to adjudicating of election disputes in Congress. The infamous Baldwin v Trowbridge, for instance, a case in which Congress permitted Michigan to ignore its state constitution when extending absentee voting to soldiers, received attention in Arizona State Legislature v. Arizona Independent Redistricting Commission in 2015 and was a congressional adjudication of an election dispute. That is, Congress robustly interpreted its authority under the Constitution to judge the election and returns of its members. It’s often done so, but far less so in the last half century. So it might be considered strange for challengers to raise this issue in federal court where they had (or will have) the opportunity to raise the issue in Congress.

Federal courts have entertained claims about the scope of power under the Elections Clause, Arizona State Legislature being one of them. U.S. Term Limits, Inc. v. Thornton (1995) is another (although, to be fair, it could better be understood as recognizing that disputes over candidate qualifications are not a part of the Elections Clause). And of course, one can go back to Davis v. Hildebrant (1916) or Smiley v. Holm (1932) for much older examples.

Is there a political question doctrine lurking here? It’s a puzzle I haven’t easily been able to answer. One could begin with Colegrove v. Green (1946), but that was overturned in Baker v. Carr (1962), of course, and Baker was an Equal Protection Clause case.

But Colegrove postdated both Hildebrant and Smiley, which were both Elections Clause cases. How was it compatible with those? Consider Justice Frankfurter’s dissenting opinion in Baker, which offers the following analysis:

The Court has been particularly unwilling to interven in matters concerning the structure and organization of the political institutions of the States. The abstention from judicial entry into such areas has been greater even than that which marks the Court’s ordinary approach to issues of state power challenged under broad federal guarantees. ‘We should be very reluctant to decide that we had jurisdiction in such a case, and thus in an action of this nature to supervise and review the political administration of a state government by its own officials and through its own courts. The jurisdiction of this court would only exist in case there had been * * * such a plain and substantial departure from the fundamental principles upon which our government is based that it could with truth and propriety be said that, if the judgment were suffered to remain, the party aggrieved would be deprived of his life, liberty, or property in violation of the provisions of the federal constitution.’ [citations omitted]

Where, however, state law has made particular federal questions determinative of relations within the structure of state government, not in challenge of it, the Court has resolved such narrow, legally defined questions in proper proceedings. See Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135. In such instances there is no conflict between state policy and the exercise of federal judicial power. This distinction explains the decision[] in Smiley v. Holm, 285 U.S. 355 . . . in which the Court released state constitutional provisions prescribing local lawmaking procedures from misconceived restriction of superior federal requirements. Adjudication of the federal claim involved in those cases was not one demanding the accommodation of conflicting interests for which no readily accessible judicial standards could be found. See McPherson v. Blacker, 146 U.S. 1, in which, in a case coming here on writ of error from the judgment of a state court which had entertained it on the merits, the Court treated as justiciable the claim that a State could not constitutionally select its presidential electors by districts, but held that Art. II, s 1, cl. 2, of the Constitution left the mode of choosing electors in the absolute discretion of the States. Cf. Pope v. Williams, 193 U.S. 621; Breedlove v. Suttles, 302 U.S. 277. To read with literalness the abstracted jurisdictional discussion in the McPherson opinion reveals the danger of conceptions of ‘justiciability’ derived from talk and not from the effective decision in a case. In probing beneath the surface of cases in which the Court has declined to interfere with the actions of political organs of government, of decisive significance is whether in each situation the ultimate decision has been to intervene or not to intervene.

Frankfurter lost, of course, in Baker. But he characterized Smiley as follows: “the Court released state constitutional provisions prescribing local lawmaking procedures from misconceived restriction of superior federal requirements. Adjudication of the federal claim involved in those cases was not one demanding the accommodation of conflicting interests for which no readily accessible judicial standards could be found.” He points to two facts: in Smiley the state supreme court erroneously believed that the state government was improperly constrained by federal law (i.e., that the governor lacked the power to veto congressional maps); and that it included a judicially manageable standard. (Judicial manageability may be an issue in this case, as I’ve pointed out earlier.) I confess, I find Frankfurter’s distinction of Smiley a bit mysterious and remain unsure about how to best think about Smiley in terms of federal judicial review, to this day. (Although I have another idea on it, for some future post.)

Another relevant issue might be the vehicle through which the case arises in the Court. Here, Frankfurter cites McPherson v. Blacker as arising from a writ of error from the state courts, which had adjudicated the claim on the merits. That is, the United States Supreme Court might in some cases take on cases that come out of the state courts where they don’t have that power in the federal courts under the federal courts’ original jurisdiction. That would be consistent with, say, ASARCO v. Kadish (1989). But, then again, that wouldn’t really the matter if there were actually a textually-demonstrable commitment to another branch to solve the matter, or if there were no judicially-manageable standards for the federal courts, regardless of what the state courts might do.

Rucho v. Common Cause (2019) emphasized that while the federal courts were not capable of developing rules in partisan gerrymandering cases, Congress was. But not without some caveats.

Appellants suggest that, through the Elections Clause, the Framers set aside electoral issues such as the one before us as questions that only Congress can resolve. See Baker, 369 U. S., at 217. We do not agree. In two areas—one-person, one-vote and racial gerrymandering—our cases have held that there is a role for the courts with respect to at least some issues that could arise from a State’s drawing of congressional districts. See Wesberry v. Sanders, 376 U. S. 1 (1964); Shaw v. Reno, 509 U. S. 630 (1993) (Shaw I).

But the history is not irrelevant. The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress.

Note, of course, that both Wesberry involved the Apportionment Clause and Shaw involved the Equal Protection Clause, not the Elections Clause.

The political question doctrine under the Elections Clause has not been something that can be easily identified or categorized. Its inconsistent application in federal cases appears to turn less on structural commitment to Congress (which, to me, is a fairly strong for courts to stay out on many issues), and more on manageability. Even then, it does not have a robust body of doctrine to explain when or how it applies.

It would be possible, of course, for the respondents in this case to point to notions of the political question doctrine to deny federal judicial involvement. But that apparently has been a disfavored strategy–perhaps because the respondents do want the federal courts involved in other matters under the Elections Clause (or in elections more generally) in this or future cases. (Indeed, the argument also received little attention in the Arizona State Legislature case.) It remains, however, one piece of this puzzle to watch ahead of final briefing and argument.

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