Muller amicus brief in Moore v. Harper

I filed this amicus brief in support of the respondents in Moore v. Harper. It argues that 2 U.S.C. § 2c requires that congressional single-member districts be drawn “by law,” which embraces state courts and state constitutions, as Justice Scalia’s 2003 opinion in Branch v. Smith explains. Congress has the power to identify state law as the governing rule under the Elections Clause, and I trace the Court’s precedents and Congress’s practices from Ex parte Siebold onward on this point. Crucially, I think there has too quickly been a mistaken interpretation of the Court’s decisions in Davis v. Hildebrant (including the Court’s gloss on Hildebrant in Hawke v. Smith) and Smiley v. Holm–these are first federal statutory issues, not federal constitutional issues, as the brief explains.

(Back in April, I proposed here at ELB a similar congressional statute, and this interpretation of federal law is consistent with that proposal.)

The statutory arguments have received a little attention. For instance, Michael Rosin raises some similar points in his brief. America First Legal (with attorney Jonathan Mitchell as counsel of record) filed a brief in support of petitioners on a different statutory issue, 2 U.S.C. § 2a(c) . And a group of states (led by Arkansas and Arizona) filed a brief in support of petitioners rebutting the argument that § 2c applies (see pp. 20-22 of the brief).

This does not address many other questions that federal law does not presently cover, and certainly does not address any Article II issues. But it’s an important issue nonetheless and one I hope the Court carefully considers.

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