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Moore v. Harper

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Moore v. Harper seems to be the most important of decisions reached by the US Supreme Court in 2023.

(ROBERTS, C. J., delivered the opinion of the Court, in which SOTOMAYOR, KAGAN, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. KAVANAUGH, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion in which GORSUCH, J., joined, and in which ALITO, J., joined as to Part I.)



. . . 

The question on the merits is whether the Elections Clause insulates state legislatures from review by state courts for compliance with state law.

Since early in our Nation’s history, courts have recognized their duty to evaluate the constitutionality of legislative acts. We announced our responsibility to review laws that are alleged to violate the Federal Constitution in Marbury v. Madison, proclaiming that “t is emphatically the province and duty of the judicial department to say what the law is.”(1803) Marbury confronted and rejected the argument that Congress may exceed constitutional limits on the exercise of its authority. “Certainly all those who have framed written constitutions,” we reasoned, “contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.”

Marbury proclaimed our authority to invalidate laws that violate the Federal Constitution, but it did not fashion this concept out of whole cloth. Before the Constitutional Convention convened in the summer of 1787, a number of state courts had already moved “in isolated but important cases to impose restraints on what the legislatures were enacting as law.” G. Wood, The Creation of the American Republic 1776–1787, pp. 454–455 (1969). Although judicial review emerged cautiously, it matured throughout the founding era. These state court decisions provided a model for James Madison, Alexander Hamilton, and others who would later defend the principle of judicial review.

In the 1786 case Trevett v. Weeden, for example, lawyer James Varnum challenged a Rhode Island statute on the ground that it failed to provide the right to a jury trial. Although Rhode Island lacked a written constitution, Varnum argued that the State nevertheless had a constitution reflecting the basic historical rights of the English. And, he contended, the courts must honor “the principles of the constitution in preference to any acts of the General Assembly.” Varnum won, to the dismay of the State’s legislature, which replaced four of the five judges involved. His arguments were published as a pamphlet, which “may well have been the most prominent discussion of judicial review at the time of the Philadelphia Constitutional Convention.”

The North Carolina Supreme Court played its own part in establishing judicial review. In Bayard v. Singleton, the court considered the constitutionality of a 1785 Act by the State’s General Assembly that prevented British loyalists from challenging property seizures before a jury. The court held the Act “abrogated and without any effect,” for “it was clear” that the legislature could not pass an Act that “could by any means repeal or alter the constitution.” Otherwise, the legislature “would at the same instant of time, destroy their own existence as a Legislature, and dissolve the government thereby established.” James Iredell, who would later serve as an inaugural Justice of this Court, penned at the time an open letter “To the Public” expounding a robust concept of judicial review. (1846) “[T]he power of the Assembly,” he wrote, “is limited and defined by the constitution.” The legislature, after all, “is a creature of the constitution.”

North Carolina and Rhode Island did not stand alone. See, e.g., Holmes v. Walton (N. J. 1780), described in A. Scott, Holmes vs. Walton: The New Jersey Precedent, 4 Am. Hist. Rev. 456 (1899); State v. Parkhurst, 9 N. J. L. 427, 444 (1802) (citing Holmes as holding that a statute providing for a six-person jury was “unconstitutional”). All told, “State courts in at least seven states invalidated state or local laws under their State constitutions before 1787,” which “laid the foundation for judicial review.” J. Sutton, 51 Imperfect Solutions 13 (2018).

The Framers recognized state decisions exercising judicial review at the Constitutional Convention of 1787. On July 17, James Madison spoke in favor of a federal council of revision that could negate laws passed by the States. He lauded the Rhode Island judges “who refused to execute an unconstitutional law,” lamenting that the State’s legislature then “displaced” them to substitute others “who would be willing instruments of the wicked & arbitrary plans of their masters.” 2 Records of the Federal Convention of 1787, p. 28 (M. Farrand ed. 1911). A week later, Madison extolled as one of the key virtues of a constitutional system that “[a] law violating a constitution established by the people themselves, would be considered by the Judges as null & void.” Id., at 93. Elbridge Gerry, a delegate from Massachusetts, also spoke in favor of judicial review. (Known for drawing a contorted legislative district that looked like a salamander, Gerry later became the namesake for the “gerrymander.”) At the Convention, he noted that “n some States the Judges had [actually] set aside laws as being agst. the Constitution.” 1 id., at 97 (alteration in original by James Madison). Such judicial review, he noted, was met “with general approbation.” Ibid.

Writings in defense of the proposed Constitution echoed these comments. In the Federalist Papers, Alexander Hamilton maintained that “courts of justice” have the “duty . . . to declare all acts contrary to the manifest tenor of the Constitution void.” The Federalist No. 78, p. 466 (C. Rossiter ed. 1961). “[T]his doctrine” of judicial review, he also wrote, was “equally applicable to most if not all the State governments.” Id., No. 81, at 482.

State cases, debates at the Convention, and writings defending the Constitution all advanced the concept of judicial review. And in the years immediately following ratification, courts grew assured of their power to void laws incompatible with constitutional provisions. See Treanor, 58 Stan. L. Rev., at 473, 497–498. The idea that courts may review legislative action was so “long and well established” by the time we decided Marbury in 1803 that Chief Justice Marshall referred to judicial review as “one of the fundamental principles of our society.”

We are asked to decide whether the Elections Clause carves out an exception to this basic principle. We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.

We first considered the interplay between state constitutional provisions and a state legislature’s exercise of authority under the Elections Clause in Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565 (1916). There, we examined the application to the Elections Clause of a provision of the Ohio Constitution permitting the State’s voters “to approve or disapprove by popular vote any law enacted by the General Assembly.” Id., at 566. In 1915, the Ohio General Assembly drew new congressional districts, which the State’s voters then rejected through such a popular referendum. Asked to disregard the referendum, the Ohio Supreme Court refused, explaining that the Elections Clause—while “conferring the power therein defined upon the various state legislatures”—did not preclude subjecting legislative Acts under the Clause to “a popular vote.” State ex rel. Davis v. Hildebrant, 94 Ohio St. 154, 163, 114 N. E. 55, 58 (1916).

We unanimously affirmed, rejecting as “plainly without substance” the contention that “to include the referendum within state legislative power for the purpose of apportionment is repugnant to §4 of Article I [the Elections Clause].” Hildebrant, 241 U. S., at 569; see also Hawke v. Smith, 253 U. S. 221, 230–231 (1920) (describing Hildebrant as holding that “the referendum provision of the state constitution when applied to a law redistricting the State with a view to representation in Congress was not unconstitutional”).

Smiley v. Holm, decided 16 years after Hildebrant, considered the effect of a Governor’s veto of a state redistricting plan. 285 U. S. 355, 361 (1932). Following the 15th decennial census in 1930, Minnesota lost one seat in its federal congressional delegation. The State’s legislature divided Minnesota’s then nine congressional districts in 1931 and sent its Act to the Governor for his approval. The Governor vetoed the plan pursuant to his authority under the State’s Constitution. But the Minnesota Secretary of State nevertheless began to implement the legislature’s map for upcoming elections. A citizen sued, contending that the legislature’s map “was a nullity in that, after the Governor’s veto, it was not repassed by the legislature as required by law.” Id., at 362. The Minnesota Supreme Court disagreed. In its view, “the authority so given by” the Elections Clause “is unrestricted, unlimited, and absolute.” State ex rel. Smiley v. Holm, 184 Minn. 228, 242, 238 N. W. 494, 501 (1931). The Elections Clause, it held, conferred upon the legislature “the exclusive right to redistrict” such that its actions were “beyond the reach of the judiciary.” Id., at 243, 238 N. W., at 501.

We unanimously reversed. A state legislature’s “exercise of . . . authority” under the Elections Clause, we held, “must be in accordance with the method which the State has prescribed for legislative enactments.” Smiley, 285 U. S., at 367. Nowhere in the Federal Constitution could we find “provision of an attempt to endow the legislature of the State with power to enact laws in any manner other than that in which the constitution of the State has provided that laws shall be enacted.” Id., at 368.

Smiley relied on founding-era provisions, constitutional structure, and historical practice, each of which we found persuasive. Two States at the time of the founding provided a veto power, restrictions that were “well known.” Ibid. (citing provisions in Massachusetts and New York). Subjecting state legislatures to such a limitation “was no more incongruous with the grant of legislative authority to regulate congressional elections than the fact that the Congress in Cite as: 600 U. S. ____ (2023) 17 Opinion of the Court making its regulations under the same provision would be subject to the veto power of the President.” Ibid.; see also Wesberry v. Sanders, 376 U. S. 1, 6 (1964) (Congress does not have “exclusive authority” under the Elections Clause, independent of other federal constitutional provisions). And “long and continuous interpretation” as evidenced by “the established practice in the states” provided further support. Smiley, 285 U. S., at 369. We noted that many state constitutions had adopted provisions allowing for executive vetoes, “and that the uniform practice . . . has been to provide for congressional districts by the enactment of statutes with the participation of the Governor wherever the state constitution provided for such participation.” Id., at 370.

This Court recently reinforced the teachings of Hildebrant and Smiley in a case considering the constitutionality of an Arizona ballot initiative. Voters “amended Arizona’s Constitution to remove redistricting authority from the Arizona Legislature and vest that authority in an independent commission.” Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. 787, 792 (2015). The Arizona Legislature challenged a congressional map adopted by the commission, arguing that the Elections “Clause precludes resort to an independent commission . . . to accomplish redistricting.” Ibid. A divided Court rejected that argument. The majority reasoned that dictionaries of “the founding era . . . capaciously define[d] the word ‘legislature,’” id., at 813–814, and concluded that the people of Arizona retained the authority to create “an alternative legislative process” by vesting the lawmaking power of redistricting in an independent commission, id., at 817. The Court ruled, in short, that although the Elections Clause expressly refers to the “Legislature,” it does not preclude a State from vesting congressional redistricting authority in a body other than the elected group of officials who ordinarily exercise lawmaking power. States, the Court explained, “retain autonomy to establish their own governmental processes.” Id., at 816

The significant point for present purposes is that the Court in Arizona State Legislature recognized that whatever authority was responsible for redistricting, that entity remained subject to constraints set forth in the State Constitution. The Court embraced the core principle espoused in Hildebrant and Smiley “that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.” 576 U. S., at 808; see also id., at 840–841 (ROBERTS, C. J., dissenting) (recognizing that Hildebrant and Smiley support the imposition of “some constraints on the legislature”). The Court dismissed the argument that the Elections Clause divests state constitutions of the power to enforce checks against the exercise of legislative power: “Nothing in [the Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.” 576 U. S., at 817–818 (majority opinion).

The reasoning we unanimously embraced in Smiley commands our continued respect: A state legislature may not “create congressional districts independently of ” requirements imposed “by the state constitution with respect to the enactment of laws.” 285 U. S., at 373.

. . .

Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein. “State courts are the appropriate tribunals . . . for the decision of questions arising under their local law, whether statutory or otherwise.” Murdock v. Memphis, 20 Wall. 590, 626 (1875). At the same time, the Elections Clause expressly vests power to carry out its provisions in “the Legislature” Cite as: 600 U. S. ____ (2023) 27 Opinion of the Court of each State, a deliberate choice that this Court must respect. As in other areas where the exercise of federal authority or the vindication of federal rights implicates questions of state law, we have an obligation to ensure that state court interpretations of that law do not evade federal law.

State law, for example, “is one important source” for defining property rights. Tyler v. Hennepin County, 598 U. S. ___, ___ (2023) (slip op., at 5); see also Board of Regents of State Colleges v. Roth, 408 U. S. 564, 577 (1972) (property rights “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law”). At the same time, the Federal Constitution provides that “private property” shall not “be taken for public use, without just compensation.” Amdt. 5. As a result, States “may not sidestep the Takings Clause by disavowing traditional property interests.” Phillips v. Washington Legal Foundation, 524 U. S. 156, 164 (1998); see also Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 164 (1980) (holding that States may not, “by ipse dixit, . . . transform private property into public property without compensation”).

A similar principle applies with respect to the Contracts Clause, which provides that “[n]o state shall . . . pass any . . . Law impairing the Obligation of Contracts.” Art. I, §10, cl. 1. In that context “we accord respectful consideration and great weight to the views of the State’s highest court.” Indiana ex rel. Anderson v. Brand, 303 U. S. 95, 100 (1938). Still, “in order that the constitutional mandate may not become a dead letter, we are bound to decide for ourselves whether a contract was made.” Ibid.; see also General Motors Corp. v. Romein, 503 U. S. 181, 187 (1992). 

Cases raising the question whether adequate and independent grounds exist to support a state court judgment involve a similar inquiry. We have in those cases considered whether a state court opinion below adopted novel reasoning to stifle the “vindication in state courts of . . . federal 28 MOORE v. HARPER Opinion of the Court constitutional rights.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 457–458 (1958).

Running through each of these examples is the concern that state courts might read state law in such a manner as to circumvent federal constitutional provisions. Therefore, although mindful of the general rule of accepting state court interpretations of state law, we have tempered such deference when required by our duty to safeguard limits imposed by the Federal Constitution

Members of this Court last discussed the outer bounds of state court review in the present context in Bush v. Gore, 531 U. S. 98 (2000) (per curiam). Our decision in that case turned on an application of the Equal Protection Clause of the Fourteenth Amendment. Id., at 104–105. In separate writings, several Justices addressed whether Florida’s Supreme Court, in construing provisions of Florida statutory law, exceeded the bounds of ordinary judicial review to an extent that its interpretation violated the Electors Clause.

Chief Justice Rehnquist, joined in a concurring opinion by JUSTICE THOMAS and Justice Scalia, acknowledged the usual deference we afford state court interpretations of state law, but noted “areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law.” Id., at 114. He declined to give effect to interpretations of Florida election laws by the Florida Supreme Court that “impermissibly distorted them beyond what a fair reading required.” Id., at 115. Justice Souter, for his part, considered whether a state court interpretation “transcends the limits of reasonable statutory interpretation to the point of supplanting the statute enacted by the ‘legislature’ within the meaning of Article II.” Id., at 133 (Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting).

We do not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause. The questions presented in this area are complex and context specific. We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.

. . .

State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause. But federal courts must not abandon their own duty to exercise judicial review. In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution.


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I don't know how to fix the strike-through text in the quotation of the Opinion in the preceding post.

Moore v. Harper – What was at stake (run-up )



If the court sides with state lawmakers in Moore, the result could have far-reaching impacts. State courts, governors, and redistricting commissions could also lose their power to invalidate, veto, or draw congressional maps. And the effects could apply well beyond gerrymandering, including dramatically changing how federal elections are conducted and giving state legislatures broad, unchecked power to set otherwise-illegal election rules. This theory must be rejected regardless of any short-term partisan implications — remember, state courts also struck down partisan gerrymanders this year in blue states as well as red ones. In the end, it is our democracy that stands to lose if the power to set election rules is unconstrained by the rule of law and constitutional checks and balances.

If the Supreme Court adopts the North Carolina legislators’ proposed rule in Moore, it will make it even easier for state legislatures to suppress the vote and subvert election results, and it will give both political parties the green light to draw gerrymandered election districts. Adopting the legislators’ rule would also require the court to turn its back on principles ostensibly favored by its current majority, like original meaning and federalism, which stand against the legislators’ radical and disruptive legal theory.

Moore is an opportunity for the court to reject that radicalism, and to reaffirm the common-sense rule that has been in place since the Constitution was ratified: State legislatures always act subject to the state constitutions that charter them and define their powers. Nothing less than that basic principle of American constitutional government is at stake.



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