There’s plenty of precedent for the parties to rely upon in Moore v. Harper. I wanted to see how each side handled one of the toughest cases on either side–and apart from a brief aside from the petitioners, the parties do not argue these opinions should be overturned or ignored. For the petitioners, Arizona State Legislature v. Independent Redistricting Commission. For the respondents (acknowledging it was only a concurring opinion and not the controlling opinion of the Court), Chief Justice Rehnquist’s opinion in Bush v. Gore.

Here’s how the petitioners approached Arizona State Legislature:

While the federal Constitution allocates the authority to regulate federal elections to state legislatures, it of course does not create the state legislatures themselves. Petitioners thus do not dispute that each State’s constitution may properly govern such procedural questions as whether a bicameral vote is required to enact a law, whether the legislation is subject to gubernatorial veto, see Smiley, and, perhaps in the extreme case, whether some lawmaking entity other than the ordinary institutional legislature has authority to legislate on the subject under “the State’s prescriptions for lawmaking,” Arizona State Legislature v. Arizona Indep. Redistricting Comm’n (2015). But it does not follow that state constitutions may also impose substantive limits, enforceable by state courts outside of “the method which the state has prescribed for legislative enactment[ ],” Smiley, on the legislature’s exercise of the power assigned to it by the Elections Clause. For while that power may be assigned to a lawmaking institution that is a creature of state law, when that institution exercises the power it is engaged in a federal function and is thus simply not subject to substantive state-law restrictions.

. . .

. . . the Clause does not allow the state courts, or any other organ of state government, to second-guess the legislature’s determinations. . . .

The Court reaffirmed this principle over a century later in Arizona Independent Redistricting Commission. While the majority and dissenting opinions in that case disagreed over the question whether the “legislature,” under the Elections Clause, is limited to a specific legislative body or “the State’s lawmaking processes” more generally, all Justices agreed at a minimum that “redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking.” Whether the majority was right to adopt the non-institutional understanding of “Legislature,” or to conclude that a State’s lawmaking prescriptions may permissibly be extended to encompass an independent commission established by ballot initiative, are questions that are not relevant here. For the one thing that is clear is that a “State’s prescriptions for lawmaking” do not include the adjudication of cases or controversies in the state courts.[fn. 9]

[fn. 9:] To the extent the Court were to find that some portion of the Arizona opinion is contrary to Petitioners’ position in this case, and that the case is not distinguishable, the Court should overrule it.

Here’s the state respondents’ (perfunctory and erroneous) approach to Bush v. Gore: “That leaves Chief Justice Rehnquist’s concurrence in Bush v. Gore, 531 U.S. 98 (2000). But, as Chief Justice Rehnquist explained, ‘[i]n any election but a Presidential election,’ this Court would afford its traditional deference to a state supreme court’s interpretation of its own state constitution. Id. at 114.”

(This is not an accurate summary. As the full quotation states, “In any election but a Presidential election, the Florida Supreme Court can give as little or as much deference to Florida’s executives as it chooses, so far as Article II is concerned, and this Court will have no cause to question the court’s actions.” (Emphasis added.) That is a very different meaning that the state respondents’ brief suggests.)

The non-state respondents’ have a lengthy approach to Bush v. Gore (styled “Bush II” in the brief). I’ll highlight a few points (with some light omissions), suggesting that Chief Justice Rehnquist’s approach is compatible with this case:

In Bush II, the Court decided nothing about the Electors Clause and instead rested its decision on the Equal Protection Clause. Indeed, no Justice in Bush II suggested that state legislatures, even as to the Electors Clause, are unconstrained by state-court judicial review. And while Chief Justice Rehnquist pointed to prior cases in which this Court had reinterpreted state statutes, he cited no instance where this Court held that a state court misinterpreted its own constitution. (“[T]he general coherence of the legislative scheme may not be altered by judicial interpretation so as to wholly change the statutorily provided apportionment of responsibility among these various bodies.”).

In any event, the Bush II concurrence simply stands for the unremarkable proposition that state courts’ authority to interpret state law is not itself unchecked by federal constitutional constraints. (“A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.”). The Court has applied that principle in a variety of situations, not limited to federal elections. (“Though we generally defer to state courts on the interpretation of state law * * * there are of course areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law.”). Chief Justice Rehnquist cited, for instance, NAACP v. Alabama ex rel. Patterson (1958), where this Court exercised jurisdiction to review an Alabama Supreme Court holding that was irreconcilable with prior Alabama precedent. He also cited Bouie v. City of Columbia (1964), where this Court “concluded that the South Carolina Supreme Court’s interpretation of a state penal statute had impermissibly broadened the scope of that statute beyond what a fair reading provided, in violation of due process.”

Rejecting Petitioners’ Elections Clause theory thus does not require this Court to accept that a state court’s authority is unlimited. Federalism requires this Court to accord great deference to state-court decisions interpreting state law. And that rule is at its apex when state courts interpret state constitutions. This Court, however, always has jurisdiction to intervene in rare cases where state courts act lawlessly to obstruct federal rights. Chief Justice Rehnquist stated that this Court may reject a state court’s interpretation of state law that is so grievously wrong as to “significantly depart[]” from the well-established meaning of state law and thus render it “absurd,” “inconceivable,” and beyond what any “reasonable person” could conclude. See also Br. of Amicus Curiae Conference of Chief Justices at 19 (federal courts may intrude only where “there exists no plausibly defensible basis for the [state] court’s determination and the decision infringes a clear federal interest”). But Petitioners have not even tried to satisfy that stringent standard. Nor could they, as the North Carolina Supreme Court’s carefully reasoned, historically grounded interpretation of its constitution does not remotely warrant federal intervention under the “deferential” standard Chief Justice Rehnquist employed.

. . .

This case does not remotely warrant federal-court intervention. Petitioners cannot credibly contend that the North Carolina courts’ decisions “significantly depart[ed]” from prior state-court precedent in a way that rendered those decisions “absurd,” “inconceivable,” or beyond what any “reasonable person” would do. Bush II (Rehnquist, C.J., concurring). Indeed, although state courts, like federal courts, are free to break from past constitutional interpretations in appropriate circumstances, the decision here followed from past precedent. A century and a half ago, the North Carolina Supreme Court invalidated a districting plan, declaring it “too plain for argument” that the denial of the right to participate equally in the political process “is a plain violation of fundamental principles.” People ex rel. Van Bokkelen v. Canaday (N.C. 1875). Two decades ago, the court held that North Carolina’s Equal Protection Clause mandates that redistricting plans afford “substantially equal voting power and substantially equal legislative representation” to all voters. Stephenson I. And in 2019, two years before this litigation even commenced, a North Carolina three-judge trial court unanimously held that the state constitution’s Free Elections, Equal Protection, Free Speech, and Free Assembly Clauses prohibit extreme partisan gerrymandering. Harper. Far from abandoning prior state-court
precedent, the North Carolina Supreme Court’s decision faithfully followed it.

Nor is interpreting the relevant provisions of the state constitution to restrict partisan gerrymandering “absurd,” “inconceivable,” or beyond what any “reasonable person” would do. Indeed, all nine Justices of this Court agreed in Rucho that extreme partisan gerrymandering “is ‘incompatible with democratic principles” . . . .