Opposition Brief — Timothy K. Moore, in His Official Capacity as Speaker of the North Carolina House of Representatives, et al., Petitioners v. Rebecca Harper, et al.
Supreme Court briefMay 20, 2022
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No. 21-1271
In the Supreme Court of the United States
REPRESENTATIVE TIMOTHY K. MOORE,
IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE NORTH
CAROLINA HOUSE OF REPRESENTATIVES, ET AL.,
PETITIONERS,
v.
REBECCA HARPER, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE
NORTH CAROLINA SUPREME COURT
BRIEF FOR HARPER RESPONDENTS
IN OPPOSITION
ELISABETH S. THEODORE
R. STANTON JONES
SAMUEL F. CALLAHAN
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
BURTON CRAIGE
NARENDRA K. GHOSH
PAUL E. SMITH
PATTERSON HARKAVY LLP
100 Europa Drive, Suite 420
Chapel Hill, NC 27517
(919) 942-5200
ABHA KHANNA
Counsel of Record
ELIAS LAW GROUP LLP
1700 Seventh Avenue,
Suite 2100
Seattle, WA 98101
(206) 656-0177
AKhanna@elias.law
LALITHA D. MADDURI
JACOB D. SHELLY
GRAHAM WHITE
ELIAS LAW GROUP LLP
10 G Street N.E., Suite 600
Washington, DC 20002
(202) 968-4490
QUESTION PRESENTED
Whether the Elections Clause of the U.S.
Constitution forbids North Carolina courts from
reviewing the validity of a legislatively enacted
congressional redistricting plan under provisions of the
North Carolina Constitution, and adopting an interim
remedial plan, pursuant to state statutes providing for
such judicial review and adoption of interim remedial
plans.
(i)
TABLE OF CONTENTS
Page
Introduction .......................................................................... 1
Statement .............................................................................. 2
A. North Carolina’s 2021 Congressional Map .......... 2
B. Proceedings Below ................................................. 4
Reasons to Deny the Petition ........................................... 11
A. This Court Lacks Jurisdiction Under
28 U.S.C. § 1257(a) ................................................ 11
B. This Case Is an Unusually Bad Vehicle ............. 15
C. The Decisions Below Are Correct ...................... 16
D. There Is No Division of Authority ...................... 28
E. Petitioners’ Theory Would Fundamentally
Alter the Balance of State and Federal Power
Over Election Administration ............................. 30
Conclusion ........................................................................... 32
(ii)
TABLE OF AUTHORITIES
Cases
Page(s)
Alexander v. Taylor,
No. 97836, 51 P.3d 1204 (Okla. June 25, 2002) ............. 31
Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n,
576 U.S. 787 (2015) .......................................... 8, 23, 25, 26
State ex rel. Beeson v. Marsh,
34 N.W.2d 279 (Neb. 1948) ............................................. 29
Branch v. Smith,
538 U.S. 254 (2003) .................................................... 25, 26
Carroll v. Becker,
285 U.S. 380 (1932) .......................................................... 22
Carson v. Simon,
978 F.3d 1051 (8th Cir. 2020) ................................... 28, 29
Common Cause v. Lewis,
No. 18 CVS 014001, 2019 WL 4569584
(N.C. Super. Ct. Sept. 3, 2019) ......................................... 3
Common Cause v. Rucho,
139 S. Ct. 2484 (2019) ...................................... 1, 21, 22, 30
Covington v. North Carolina,
316 F.R.D. 117 (M.D.N.C. 2016), aff’d,
137 S. Ct. 2211 (2017) ........................................................ 3
Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975) .................................................... 13, 14
State of Ohio ex rel. Davis v. Hildebrant,
241 U.S. 565 (1916) .......................................................... 22
Commonwealth ex rel. Dummit v. O’Connell,
181 S.W.2d 691 (Ky. 1944) .............................................. 29
Egolf v. Duran,
No. D-101-CV-2011-02942 (N.M. Dist. Ct.,
Santa Fe Cnty. Dec. 29, 2011) ........................................ 31
(iii)
iv
Cases—Continued
Page(s)
Gaffney v. Cummings,
412 U.S. 735 (1973) .......................................................... 31
Growe v. Emison,
507 U.S. 25 (1993) ............................................ 8, 23, 24, 31
Hall v. Moreno,
270 P.3d 961 (Colo. 2012) ................................................ 31
Harper v. Lewis,
No. 19 CVS 12667, 2019 N.C. Super. LEXIS
122 (N.C. Super. Ct. Oct. 28, 2019) .................................. 3
Harris v. McCrory,
159 F. Supp. 3d 600 (M.D.N.C. 2016) .............................. 3
Hippert v. Ritchie,
813 N.W.2d 391 (Minn. 2012) ......................................... 31
Koenig v. Flynn,
285 U.S. 375 (1932) .......................................................... 22
League of Women Voters of Fla. v. Detzner,
172 So.3d 363 (Fla. 2015) ................................................ 28
Market St. Ry. v. Railroad Comm’n of Cal.,
324 U.S. 548 (1945) .................................................... 11, 12
McPherson v. Blacker,
146 U.S. 1 (1892) .............................................................. 27
Minnesota v. Nat’l Tea Co.,
309 U.S. 551 (1940) .......................................................... 19
Moran v. Bowley,
179 N.E. 526 (Ill. 1932) ................................................... 28
N.C. League of Conservation Voters v. Hall,
No. 21 CVS 015426 (N.C. Super. Ct. 2021) ..................... 4
Parsons v. Ryan,
60 P.2d 910 (Kan. 1936) ................................................... 29
Smiley v. Holm,
285 U.S. 355 (1932) ...................................................... 8, 22
v
Cases—Continued
Page(s)
Wesberry v. Sanders,
376 U.S. 1 (1964) .............................................................. 24
Zachman v. Kiffmeyer,
No. C0-01-160 (Minn. Spec. Redis. Panel
Mar. 19, 2002) .................................................................. 31
Statutes
2 U.S.C.
§ 2a(c) .......................................................................... 25, 26
§ 2c .................................................................................... 26
28 U.S.C. § 1257(a) ......................................................... 2, 11
N.C. Gen. Stat.
§ 1-267.1 .................................................................. 4, 15, 18
§ 120-2.3 ............................................................................ 15
§ 120-2.3 ............................................................................ 18
§ 120-2.4 .................................................................. 9, 15, 18
Constitutional Provisions
Cal. Const. art. II, § 5(a) .................................................... 30
Del. Const. of 1792, art. VII, § 2 ....................................... 17
Ga. Const. of 1789, art. IV, § 2 .......................................... 17
Mich. Const. art. II, § 4...................................................... 30
N.C. Const.
art. I, § 10 ......................................................................... 20
art. I, § 12 ......................................................................... 20
art. I, § 14 ......................................................................... 20
art. I, § 19 ......................................................................... 20
Pa. Const. of 1790, art. III, § 2.......................................... 17
Tenn. Const. of 1796, art. III, § 3 ..................................... 17
U.S. Const.
art. I, § 4 ............................................................. 5, 7, 16, 25
art. I, § 8 ........................................................................... 18
art. XIV, § 2...................................................................... 27
vi
Constitutional Provisions—Continued
Page(s)
Va. Const. of 1830, art. III, § 6.......................................... 17
Other Authorities
N.C. R. App. P. 10(a)(1) ..................................................... 14
The Federalist No. 81 (Clinton Rossiter
ed., 1961) ........................................................................ 17
Saikrishna B. Prakash & John C. Yoo, The
Origins of Judicial Review, 70 U. Chi.
L. Rev. 887, 933 & n.169 (2003) ............................. 16, 17
INTRODUCTION
This Court has repeatedly held for over a century
that nothing in the U.S. Constitution’s Elections Clause
permits state legislatures to enact congressional
redistricting legislation in defiance of provisions of the
state constitution. And just three years ago, the Court
declared in Common Cause v. Rucho that “provisions in
. . . state constitutions can provide standards and guidance
for state courts to apply” in partisan gerrymandering
challenges to congressional redistricting plans enacted by
state legislatures. 139 S. Ct. 2484, 2507 (2019).
Petitioners’ attempt to reconcile their Elections
Clause theory with this Court’s precedents is
underdeveloped and incoherent. Petitioners admit that
some provisions of state constitutions do constrain state
legislatures in enacting congressional plans, including
both procedural constraints like a gubernatorial veto and
substantive prohibitions on partisan gerrymandering.
But they claim that the Elections Clause somehow
prohibits state courts from construing what Petitioners
deem “vague” state constitutional provisions—including
those that guarantee free elections, equal protection, and
free speech and assembly—to restrain state legislatures
in drawing congressional districts. Pet. i. Such a
distinction finds no support in the text or history of the
Elections Clause. And under bedrock principles of
federalism, it is state supreme courts—not this Court—
that construe their own state constitutions. There is no
basis in law for a decision that state legislatures, in
enacting legislation regulating federal elections, may defy
some but not all provisions of the state’s constitution.
Even if this Court were interested in Petitioners’ illconceived theory, the Court lacks jurisdiction to consider
it here. Petitioners ask this Court to decide whether state
courts may “nullify” state statutes and “replace them with
regulations of the state courts’ own devising.” Pet. i. But
(1)
2
this Court has jurisdiction only to review “[f]inal
judgments or decrees rendered by the highest court of a
State in which a decision could be had,” 28 U.S.C.
§ 1257(a), and the validity of the state court’s replacement
map is pending in North Carolina’s Supreme Court right
now.
Beyond the lack of jurisdiction, this case is a poor
vehicle to consider the question presented because North
Carolina statutes enacted by the General Assembly itself
authorize state court review of redistricting legislation,
and further authorize state courts to adopt interim
remedial plans under specified circumstances, as the trial
court did here. In other words, Petitioners’ Elections
Clause theory, even if adopted, would get them nowhere
because they do not dispute that the Elections Clause
allows a state “legislature” to invite judicial participation.
In any event, Petitioners’ theory does not merit this
Court’s review. The constitutional text and history, as well
as overwhelming precedent from this Court, refute the
notion that the Elections Clause gives state legislatures
free rein to regulate federal elections without regard to
state constitutions, as construed by state courts.
Congress, moreover, has exercised its own Elections
Clause authority both to mandate that congressional
plans must comply with substantive state constitutional
provisions and to authorize court-drawn remedial plans.
And there is no division among lower courts on the
question presented. To the contrary, Petitioners’ reading
of the Elections Clause threatens to upend centuries of
settled practice in American elections. The Court should
deny certiorari.
STATEMENT
A. North Carolina’s 2021 Congressional Map
1. Since 2010, “[t]he General Assembly’s intentional
redistricting for partisan advantage has been subject to
3
judicial review in multiple cases.” Pets.’ Stay Mot.
Appendix (“Stay App’x”) 328(a). In 2016, federal courts
invalidated North Carolina’s 2011 congressional and state
legislative maps as racial gerrymanders in violation of the
U.S. Constitution. Harris v. McCrory, 159 F. Supp. 3d
600, 604–05 (M.D.N.C. 2016), aff’d sub nom., Cooper v.
Harris, 137 S. Ct. 1455 (2017); Covington v. North
Carolina, 316 F.R.D. 117, 176–78 (M.D.N.C. 2016), aff’d,
137 S. Ct. 2211 (2017). In 2019, North Carolina courts
invalidated the General Assembly’s remedial maps as
partisan gerrymanders in violation of the North Carolina
Constitution. Harper v. Lewis, No. 19 CVS 12667, 2019
N.C. Super. LEXIS 122 (N.C. Super. Ct. Oct. 28, 2019);
Common Cause v. Lewis, No. 18 CVS 014001, 2019 WL
4569584 (N.C. Super. Ct. Sept. 3, 2019).
In Harper, a three-judge panel of the North Carolina
Superior Court enjoined the 2016 congressional map as an
unconstitutional partisan gerrymander under North
Carolina’s Free Elections Clause, Equal Protection
Clause, and Free Speech and Assembly Clauses. See 2019
N.C. Super. LEXIS 1227. The legislative defendants
there, many of whom are also Petitioners here, did not
seek appellate review, and North Carolina held its 2020
congressional elections under a remedial map enacted
after the injunction.
2. Following the 2020 census, the General Assembly
enacted new congressional, state House, and state Senate
maps on November 4, 2021, all passed along strict partyline votes. Stay App’x 324a-327a. As the trial court later
found, while North Carolina “gained an additional
congressional seat as a result of population growth that
came largely from the Democratic-leaning . . . areas, the
number of anticipated Democratic seats under the
enacted map actually decrease[d], with only three
anticipated Democratic seats, compared with the five
seats that Democrats won in the 2020 election.” Id. at
4
345a. The congressional map accomplished this result
largely by “splitting the Democratic-leaning counties of
Guilford, Mecklenburg, and Wake among three
congressional districts each,” despite there being “no
population-based reason to” do so. Id. at 345a-346a.
B. Proceedings Below
1. Harper Respondents are 25 individual North
Carolina voters residing in all 14 congressional districts
under the 2021 map. Several were plaintiffs in Harper v.
Lewis, the 2019 case that successfully challenged the 2016
congressional map as a partisan gerrymander under the
North Carolina Constitution. Harper Respondents filed
this action on November 18, 2022, asserting claims
exclusively under the North Carolina Constitution’s Free
Elections Clause, Equal Protection Clause, and Free
Speech and Assembly Clauses.
Pursuant to a North Carolina statute authorizing
“action[s] challenging the validity of . . . congressional
districts” in North Carolina courts, North Carolina
Supreme Court Chief Justice Paul Newby appointed a
panel of three trial-court judges to hear the case. N.C.
Gen. Stat. § 1-267.1. Harper Respondents’ case was
consolidated with N.C. League of Conservation Voters v.
Hall, No. 21 CVS 015426, and Respondent Common
Cause intervened. The consolidated cases presented
claims only under the North Carolina Constitution.
The trial court denied Respondents’ motions for a
preliminary injunction on December 2, but on December
8 the North Carolina Supreme Court reversed, granted a
preliminary injunction, stayed the candidate filing period,
and postponed the state’s primaries to May 17, 2022. The
state high court directed the trial court to conduct further
proceedings and issue a final judgment by January 11.
2. Following a four-day bench trial, the trial court
issued a final judgment finding that the state’s
5
congressional, state house, and state senate redistricting
plans were extreme partisan gerrymanders. Based on the
analyses of Respondents’ experts, the court found that the
2021 congressional map was an “intentional, and effective,
pro-Republican partisan redistricting” that locked in ten
Republican seats. Stay App’x 351a, 445a. Both the plan as
a whole and each individual district was “the product of
intentional, pro-Republican partisan redistricting.” Id. at
351a (statewide); see id. at 462a-483a (district-by-district).
For example, the trial court found that the enacted
map was “more carefully crafted to favor Republicans
than at least 99.9999%” of all possible North Carolina
district maps following the legislature’s criteria. Id. at
361a-362a. Likewise, the court found that “[t]he enacted
map sticks at 4 Democrats and 10 Republicans despite
large shifts in the statewide vote fraction across a wide
variety of elections, in elections where no nonpartisan
map would elect as few as 4 Democrats and many would
elect 7 or 8.” Id. at 351a.
The trial court further found that the enacted map
“reduce[d] the anticipated number of Democratic seats,
disadvantaging Democratic voters, by splitting the
Democratic-leaning counties of Guilford, Mecklenburg,
and Wake among three congressional districts each.” Id.
at 345a-346a. This “‘cracking and packing’ of Democratic
voters in Guilford, Mecklenburg, and Wake counties has
‘ripple effects throughout the map.’ ” Id. at 347a.
Petitioners “offered no defense of the 2021
Congressional Plan.” Id. at 445a. Nevertheless, after
finding that the maps were partisan gerrymanders, the
trial court entered judgment for Petitioners, principally
on the theory that Respondents’ claims were
nonjusticiable under the North Carolina Constitution. Id.
at 540a-547a. The trial court’s final judgment did not
address whether invalidating the congressional plan
would violate Article I, Section 4 the U.S. Constitution—
6
an argument Petitioners did not raise in their post-trial
briefing.
3. The North Carolina Supreme Court reversed. In a
February 4 order supplemented by an opinion on
February 14, the state high court “adopted in full” the
trial court’s “extensive and detailed factual findings”
regarding the partisan intent and effect of all three 2021
maps. Pet. App. 125a. But the North Carolina Supreme
Court held the trial court was wrong to reject
Respondents’ claims as nonjusticiable under North
Carolina law. The state supreme court concluded that
such claims are justiciable under North Carolina’s Free
Elections Clause (which has no federal counterpart) and
its Equal Protection Clause and Free Speech and
Assembly Clauses (which the North Carolina Supreme
Court has long interpreted to provide “greater
protections” than their federal counterparts, id. at 99a).
See id. at 97a-99a, 103a-105a. Thus, based on the trial
court’s factual findings, the state supreme court held that
“the 2021 congressional map constitutes partisan
gerrymandering that, on the basis of partisan affiliation,
violates plaintiffs’ fundamental right to substantially
equal voting power” under the above provisions in the
North Carolina Constitution. Id. at 125a.
The North Carolina Supreme Court canvassed the
history of North Carolina’s Free Elections Clause,
explaining that it was “included in the 1776 Declaration of
Rights” and “derived from a clause in the English Bill of
Rights of 1689, a product of the Glorious Revolution of
1688.” Id. at 91a-92a. The Clause “reflect[ed] the principle
of the Glorious Revolution that those in power shall not
attain ‘electoral advantage’ through the dilution of votes
and that representative bodies—in England, parliament;
here, the legislature—must be ‘free and lawful.’” Id. at
93a (quoting Gary S. De Krey, Restoration and
Revolution in Britain: A Political History of the Era of
7
Charles II and the Glorious Revolution 250 (2007)). The
court also invoked the state constitution’s Equal
Protection Clause, which the court had two decades ago
applied to invalidate redistricting plans and had held
extends more broadly than the corresponding federal
clause. Pet. App. 74a-77a, 97a-102a (citing Stephenson v.
Bartlett, 355 N.C. 354 (2002)). The court further relied on
North Carolina’s guarantees of free speech and assembly,
citing prior authority “constru[ing]” these protections
“more expansively” than the First Amendment. Id. at
104a.
Under these principles, the court held that North
Carolina’s redistricting plans must give “voters of all
political parties substantially equal opportunity to
translate votes into seats across the plan.” Id. at 110a111a. And though the court did “not believe it prudent or
necessary to . . . identify an exhaustive set of metrics or
precise mathematical thresholds which conclusively
demonstrate or disprove the existence of an
unconstitutional partisan gerrymander,” it identified
“multiple reliable ways of” evaluating these claims,
including “mean-median difference analysis; efficiency
gap analysis; close-votes, close-seats analysis; and
partisan symmetry analysis.” Id. at 110a.
In resolving the justiciability issue, the state high
court explicitly held that North Carolina’s political
question doctrine differs from the federal doctrine. See id.
at 63a-64a (“federal cases” interpreting the “[f]ederal
justiciability doctrines” are “not controlling”). The court
observed that in several prior decisions it had enforced
state constitutional provisions, including North Carolina’s
Equal Protection Clause, to strike down redistricting
plans that would not have violated the corresponding
provisions of the U.S. Constitution. Id. at 98-99a. And the
court identified “several manageable standards for
evaluating the extent to which districting plans dilute
8
votes on the basis of partisan affiliation,” such that
partisan gerrymandering claims “do not require the
making of ‘policy choices and value determinations’” as a
matter of North Carolina law. Id. at 145a (quoting Bacon
v. Lee, 353 N.C. 696, 717 (2001)).
The state high court also rejected Petitioners’
argument that the U.S. Constitution’s Elections Clause,
U.S. Const. art. I, § 4, forbids state courts from reviewing
the validity of a legislatively enacted congressional
redistricting plan under the state constitution. Pet. App.
121a-122a. The court highlighted that this argument “was
not presented at the trial court,” id. at 121a; while
Petitioners had raised the Elections Clause argument in
opposing a preliminary injunction, they did not raise it
during the merits phase. Regardless, the argument was
“inconsistent with nearly a century of precedent of the
Supreme Court of the United States affirmed as recently
as 2015,” and was “repugnant to the sovereignty of states,
the authority of state constitutions, and the independence
of state courts.” Id. The state supreme court cited “a long
line of decisions” from this Court holding that “state
courts may review state laws governing federal elections
to determine whether they comply with the state
constitution,” including Smiley v. Holm, 285 U.S. 355
(1932); Growe v. Emison, 507 U.S. 25 (1993); and Arizona
State Legislature v. Arizona Independent Redistricting
Commission, 576 U.S. 787 (2015). Petitioners’ theory also
“contradicts the holding of” this Court in Rucho v.
Common Cause, which declared that “ ‘[p]rovisions in . . .
state constitutions can provide standards and guidance
for state courts to apply’” in evaluating partisan
gerrymandering challenges to congressional plans. Pet.
App. 121a (alteration and emphasis in original) (quoting
139 S. Ct. at 2507).
9
Justice Morgan, joined by Justice Earls, wrote
separately to emphasize the “dispositive strength of
[North Carolina’s] Free Elections Clause.” Id. at 144a.
Chief Justice Newby, joined by Justices Berger Jr.
and Barringer, dissented, expressing the view that
partisan gerrymandering does not violate the North
Carolina Constitution. Id. at 145a. The dissenters did not,
however, dispute any of the trial court’s factual findings,
see id. at 10a, and did not express any disagreement with
the majority’s determination that its decision was
consistent with the federal Elections Clause.
4. The North Carolina Supreme Court then
remanded for remedial proceedings pursuant to the
North Carolina statute that governs the replacement of
congressional maps declared unconstitutional by North
Carolina courts. That law, N.C. Gen. Stat. § 120-2.4,
requires courts to give the legislature two weeks to enact
a remedial plan, and then authorizes the court to impose
its own interim districting plan if necessary to remedy any
defects identified by the court. The North Carolina
Supreme Court’s February 4 order remanded the case to
the trial court for a remedial phase that gave the General
Assembly the prescribed two weeks; authorized the other
parties to propose their own proposed remedial maps at
the same time; and instructed the trial court to adopt
compliant maps by noon on February 23. Id. at 232a.
The General Assembly enacted a remedial
congressional map that passed on strict party-line votes
and replicated key unconstitutional features of the
invalidated 2021 map. For example, the trial court had
found that one feature of the 2021 plan’s extreme partisan
gerrymandering was the “creation of three safe
Republican districts in the Piedmont Triad area.” Stay
App’x 459a-460a. The enacted remedial map did the same
thing.
10
5. On February 23, the trial court issued a final order
adopting the General Assembly’s remedial state
legislative maps but finding that its remedial
congressional map again violated the North Carolina
Constitution. Pet. App. 270a-305a. The trial court and its
special masters explained that the congressional map
failed relevant tests identified by the state supreme court.
Id. at 279a-280a, 301a-303a. The court accordingly
adopted an interim congressional map proposed by the
special masters. Id. at 293a. To comply with North
Carolina’s statute governing the remedial process in
redistricting challenges, the special masters and an
assistant began with the General Assembly’s enacted
remedial map and “modif[ied] [it] … to bring it into
compliance with the Supreme Court’s order,” rather than
drawing an entirely new map or adopting one of the
parties’ proposed alternatives. Id. at 292a (citing N.C.
Gen. Stat. § 120-2.4(a1)); see id. at 302a-303a. 1
6. Petitioners appealed and moved to stay the trial
court’s order adopting the remedial interim congressional
map; respondents did the same for the remedial state
senate maps. The North Carolina Supreme Court denied
all stay motions the same day, with no noted dissents. Id.
at 245a-246a. The appeals on the merits, however, remain
pending in the North Carolina Supreme Court, with
briefing expected to conclude this summer.
Petitioners then moved in this Court for a stay of the
North Carolina Supreme Court’s ruling or, in the
alternative, for certiorari and a stay pending resolution of
the merits. The Court denied Petitioners’ application. 142
S. Ct. 1089.
The special masters explained that the two assistants whom
Petitioners sought to disqualify played no role in the drawing of the
interim map. Id. at 303a.
1
11
Petitioners argued in their stay briefing to the North
Carolina Supreme Court that the imposition of the
remedial congressional map violated the Elections
Clause, and have indicated as part of their proposed
record on appeal that they intend to raise their Elections
Clause argument in their merits briefing this summer
before the North Carolina Supreme Court.
REASONS TO DENY THE PETITION
Certiorari should be denied for numerous reasons.
This Court lacks jurisdiction because the petition seeks
review of interlocutory orders, including an order of the
state trial court that is currently on appeal to the North
Carolina Supreme Court. Beyond that, this case is a poor
vehicle to address whether the federal Elections Clause
forbids state courts from reviewing the constitutional
validity of legislatively enacted congressional plans,
because statutes enacted by the North Carolina General
Assembly specifically authorize state courts to do so. In
all events, Petitioners’ Elections Clause theory lacks
merit. It is contrary to the constitutional text and history,
over a century of this Court’s precedent, and settled
federalism principles recognizing the unfettered
prerogative of state supreme courts to interpret their own
state constitutions. Petitioners’ newfound argument that
the Elections Clause allows state legislatures to disregard
some but not all provisions of state constitutions in
regulating federal elections does not warrant this Court’s
plenary review.
A. This Court Lacks Jurisdiction Under 28 U.S.C.
§ 1257(a).
Congress has limited this Court’s review of state
court decisions to “[f]inal judgments or decrees rendered
by the highest court of a State in which a decision could be
had.” 28 U.S.C. § 1257(a). A state court judgment must be
final “in two senses: it must be subject to no further
12
review or correction in any other state tribunal; it must
also be final as an effective determination of the litigation
and not of merely interlocutory or intermediate steps
therein.” Market St. Ry. v. Railroad Comm’n of Cal., 324
U.S. 548, 551 (1945). The decisions below are final in
neither sense, depriving of this Court of jurisdiction.
1. The decisions below are not final
judgments.
None of the decisions on which Petitioners seek
review constitutes a final judgment reviewable by this
Court under § 1257(a).
Petitioners seek review of the North Carolina
Supreme Court’s February 4 order and February 14
opinion declaring the General Assembly’s 2021
congressional plan unconstitutional. Pet. 5. These
decisions do not constitute an “effective determination of
the litigation,” Market St. Ry., 324 U.S. at 551, because
they resulted in a remand to the trial court for further
proceedings to “oversee the redrawing of the maps by the
General Assembly or, if necessary, by the court.” Pet.
App. 9a. The decisions are quintessentially interlocutory.
These decisions, moreover, did not address the full
scope of the Elections Clause issue on which Petitioners
seek certiorari. The petition presents the question of
whether “a State’s judicial branch may nullify the
regulations governing [congressional elections] and
replace them with regulations of the state courts’ own
devising.” Pet. i (emphasis added); see also id. at 31
(asserting that “the State Courts’ . . . imposition of a map
of their own making violates the Elections Clause.”). But
the North Carolina Supreme Court addressed only
whether “the word ‘Legislature’ in [the Elections Clause]
forbids state courts from reviewing a congressional
districting [that] violates the state’s own constitution.”
Pet. App. 121a. The state high court did not address
13
whether the Elections Clause allows a state court to
implement a court-drawn remedial plan.
The trial court addressed this issue in its February
23, 2022 decision on remand, but that decision is not a final
judgment because it remains “subject to . . . further
review or correction” in the North Carolina Supreme
Court. Market St. Ry., 324 U.S. at 551. Indeed,
Petitioners admitted that the North Carolina Supreme
Court must address this issue when they moved that
Court for an emergency stay pending appeal of the trial
court’s remand decision. See Pet. App. 317a (“In selecting
its own remedial congressional map the trial court is likely
violating federal law. The federal Constitution provides
that the North Carolina General Assembly is responsible
for establishing congressional districts.”). Nor is the
North Carolina Supreme Court’s February 23, 2022 order
denying that emergency motion a final judgment, as
Petitioners’ appeal of the trial court’s remand decision
remains pending before the North Carolina Supreme
Court. Petitioners intend to raise their Elections Clause
argument, along with other potentially dispositive statelaw objections to the court-drawn remedial plan, in that
yet-to-be-decided appeal.
Because the decisions below are not final judgments,
this Court lacks jurisdiction.
2. No exception to the final judgment rule
applies.
This case does not fit into any of the four categories
of cases described in Cox Broadcasting Corp. v. Cohn, 420
U.S. 469, 480 (1975), in which this Court has “found
finality as to the federal issue despite the ordering of
further proceedings in the lower state courts,” Jefferson
v. City of Tarrant, 522 U.S. 75, 82 (1997) (citing Cox, 420
U.S. at 469).
14
Under the first two Cox exceptions, this Court may
invoke jurisdiction where (1) a decision is final “for all
practical purposes” and the “outcome of further
proceedings [is] preordained,” or (2) future state-court
proceedings will not affect the need for decision on the
federal issue. Cox, 420 U.S. at 479. “In the cases in [these]
first two categories . . . the federal issue would not be
mooted or otherwise affected by the proceedings yet to be
had because those proceedings have little substance, their
outcome is certain, or they are wholly unrelated to the
federal question.” Id. at 478.
Neither of these Cox exceptions applies to the
decisions below. The North Carolina Supreme Court’s
February 4 order and February 14 opinion have led to
further state-court proceedings that are not “wholly
unrelated to the federal question” in the petition. Id. On
the contrary, those further proceedings concern the
federal question in the petition: whether the Elections
Clause permits the North Carolina judiciary to replace
the congressional map drawn by the General Assembly
with a map “of the courts’ own devising.” Pet. i. Nor is the
outcome of those proceedings “preordained,” Cox, 420
U.S. at 479, as they could result in the North Carolina
courts reimplementing the General Assembly’s remedial
plan or affording the General Assembly another
opportunity to redraw, mooting the question of whether
the Elections Clause permits state courts to draw
remedial maps. The first part of Petitioners’ question
presented, which concerns state courts’ power to review
congressional plans, also is not “wholly unrelated” to, but
instead is bound up in, the further remedial proceedings
on remand.
The third and fourth Cox categories do not apply,
either. Petitioners may obtain later review of all questions
presented in a petition from the North Carolina Supreme
15
Court’s ultimate final judgment, and later review will not
“seriously erode federal policy.” Cox, 420 U.S. at 481-83.
To the contrary, it is not possible for this Court to
reinstate the 2021 congressional plan for the 2022
elections. North Carolina already conducted its
congressional primaries on May 17, 2022, ensuring that
any relief will not take effect until the 2024 elections. Any
decision to review the case now, as opposed to after a final
state court judgment, will therefore have no practical
impact. There is accordingly no “sufficient justification for
immediate review” that would warrant an exception to the
final judgment rule. Id. at 478-79.
3. Petitioners failed to raise their Elections
Clause argument before the trial court.
This Court lacks jurisdiction for a second reason: as
the North Carolina Supreme Court held, Petitioners
failed to raise their Elections Clause claim to the trial
court. Pet. App. 121a. North Carolina law requires
litigants to raise all arguments before the trial court, N.C.
R. App. P. 10(a)(1), and the state Supreme Court’s finding
that Petitioners failed to preserve their argument is an
independent and adequate state ground preventing this
Court’s review.
B. This Case Is an Unusually Bad Vehicle for
Petitioners’ Elections Clause Theory.
Beyond this Court’s lack of jurisdiction, this case is a
particularly poor vehicle because the facts do not even
present the federal issue asserted in the petition.
Petitioners assert that the Elections Clause gives state
legislatures plenary authority over congressional
redistricting without review by state courts under the
state constitution. Pet. 27. But unlike other state
legislatures, the North Carolina General Assembly itself
has authorized North Carolina courts to review
congressional redistricting plans. Indeed, the General
16
Assembly passed a statute expressly authorizing a special
three-judge court to hear “action[s] challenging the
validity of any act . . . that . . . redistricts . . . congressional
districts,” N.C.G.S. § 1-267.1(a); issue “judgment[s]
declaring unconstitutional . . . any act . . . that . . .
redistricts . . . congressional districts,” id. § 120-2.3; and
implement “an interim districting plan” if the General
Assembly does not “remedy any defects” in its plan within
two weeks, id. § 120-2.4(a), (a1).
This case proceeded under those statutes. Pet. App.
20a. Every step taken by the state courts below—
including to invalidate the 2021 plan and replace it with
an interim remedial plan—was authorized by the
General Assembly itself. Petitioners have not challenged
North Carolina’s judicial review statutes under the
Elections Clause—not in the petition for certiorari nor in
the proceedings below. They do not argue or ask the
Court to hold that the Elections Clause prohibits state
legislatures from making the delegation that North
Carolina’s legislature has made here. This case
accordingly does not present the question that Petitioners
do raise, whether the Elections Clause allows state courts
to “nullify” state legislative choices. Pet. i. If this Court is
inclined to take up the question of whether the Elections
Clause prohibits ordinary state-court judicial review
pursuant to a state’s constitution, it should do so in a case
where state statutes do not expressly authorize statecourt judicial review of congressional maps.
C. The Decisions Below Are Correct.
Jurisdictional and vehicle problems aside, the
decisions below were correct as a matter of text, history,
precedent, and constitutional structure. Nothing in the
Elections Clause permits a state legislature to violate the
state constitution, as construed by the state’s highest
court, in enacting congressional redistricting legislation—
no more than it permits Congress to ignore this Court’s
17
decisions interpreting the U.S. Constitution. This Court
has so held many times, and Petitioners present no
persuasive argument for revisiting those holdings.
1. The text of the Elections Clause permits state
judicial review under state constitutions.
The Elections Clause provides that the “Times,
Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by
Law make or alter such Regulations, except as to the
Places of chusing Senators.” U.S. Const. art. I, § 4, cl. 1.
In the founding era, like today, a “Legislature”
“prescrib[ed]” legislation subject to restrictions imposed
by the state constitution, as construed by the state courts
and enforced through judicial review.
Prior to ratification of the U.S. Constitution, the
courts of at least seven states—including North
Carolina—had not only engaged in judicial review of
legislation but had “deemed a state statute to violate a
fundamental charter (or other species of higher law).”
Saikrishna B. Prakash & John C. Yoo, The Origins of
Judicial Review, 70 U. Chi. L. Rev. 887, 933 & n.169
(2003) (citing, among other decisions, Bayard v.
Singleton, 1 N.C. 5, 7 (1787)). The framers during the
drafting and ratification debates cited these decisions
favorably. Id. at 934-35. Hamilton’s defense of judicial
review in The Federalist applied equally to state judicial
review. Id.; The Federalist No. 81, at 481-482 (Clinton
Rossiter ed., 1961) (“[T]his doctrine” of constitutional
supremacy “is not deducible from any circumstance
peculiar to the plan of the convention, but from the
general theory of a limited Constitution; and as far as it is
true, is equally applicable to most if not to all the State
governments.”); id. No. 78, at 469 (“The benefits of the
integrity and moderation of the judiciary have already
been felt in more States than one ….”). And several state
18
constitutions in the eighteenth century specifically
imposed substantive restrictions on elections, including
federal congressional elections. 2
Petitioners stress that “the Legislature” means a
legislative entity rather than a judicial or executive one.
Pet. 27-29. But that merely begs the question whether the
relevant act of the “Legislature” is subject to state judicial
review under the state constitution. To prevail,
Petitioners must show that the Elections Clause
supplants that ordinary state constitutional constraint. Id.
at 34 (“state courts” categorically lack “power to secondguess the legislature’s determinations”).
Petitioners identify no textual or historical support
for that theory. They cite nothing suggesting that the
Elections Clause was intended to abrogate the regime of
state judicial review that the framers not only understood,
but cited during the framing and ratification process. And
Petitioners identify no way in which the process here
defied the text of the Elections Clause as originally
understood. The “Legislature” here “prescribed” a
congressional districting plan through the ordinary
process governing redistricting legislation. The plan was
then subjected to judicial review under North Carolina’s
Constitution—the same constitutional check placed on all
legislation. The General Assembly even “prescribed” all
relevant aspects of the judicial review—from the
Delaware’s constitution established rules for electing
“representatives … in Congress.” Del. Const. of 1792, art. VII, § 2.
Others required elections for all offices to be by ballot, Ga. Const. of
1789, art. IV, § 2; Pa. Const. of 1790, art. III, § 2; Ky. Const. of 1792,
art. III, § 2; Tenn. Const. of 1796, art. III, § 3; Ohio Const. of 1803,
art. IV, § 2, and regulated the apportionment of congressional seats,
Va. Const. of 1830, art. III, § 6. See Hayward H. Smith, Revisiting
the History of the Independent State Legislature Doctrine, 53 St.
Mary’s L.J. __ (forthcoming 2022), https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=3923205#.
2
19
procedures by which challenges are heard, N.C.G.S. §§ 1267.1(a), 120-2.3, to the substantive constitutional
protections, to the process for implementing “interim
districting plan[s]” to remedy “defects identified by the
court,” id. § 120-2.4.
Petitioners’ interpretation also ignores key textual
differences between the Elections Clause and other
constitutional provisions that grant unreviewable power
to the legislature. The U.S. House and Senate, for
example, have “the sole Power” to impeach and to try
impeachments, respectively. Art. I, §§ 2-3. The Elections
Clause is different. It simply designates “the Legislature”
and “Congress” as the entities that may legislate on the
subject of congressional elections. The Clause thus
resembles other grants of legislative power in the
Constitution, which contemplate legislation subject to
ordinary constitutional checks. For example, “Congress
shall have Power … [t]o regulate Commerce with foreign
Nations, and among the several States, and with the
Indian Tribes.” U.S. Const. art. I, § 8. Although no other
branch of government can enact Commerce Clause
legislation, Congress’s Commerce Clause legislation is
nonetheless subject to other constitutional restrictions,
including judicial review. When courts strike down such
legislation, they do not usurp Congress’s power under the
Commerce Clause. Indeed, as Petitioners emphasize (Pet.
35), federal courts permissibly review Congress’s election
legislation “to secure … rights” in the U.S. Constitution—
and do not “make or alter” legislation in violation of the
Elections Clause when they do so. And while Petitioners
suggest that state constitutional review is somehow
different, they make no effort to root that distinction in
the Elections Clause’s text, which refers to “the
Legislature” and “Congress,” not federal courts, as
responsible for prescribing election regulations.
20
Although Petitioners’ primary argument is
categorical, Pet. 34, the petition suggests an alternative
theory that the Elections Clause precludes only the
enforcement of “vague and abstract state constitutional
language.” Id. at 4; see id. at i. Petitioners offer no textual
or historical support for this interpretation. It is entirely
made up. No text in the Elections Clause or anywhere else
in the U.S. Constitution divides state constitutional
provisions into A and B teams based on their supposed
clarity or specificity. To the contrary, deciding the
contours of state constitutional provisions is a matter
wholly for state courts. See Minnesota v. Nat’l Tea Co.,
309 U.S. 551, 557 (1940). Stripping state courts of the
ability to conduct judicial review based on the
“vagueness” of state constitutional protections would
invite unprecedented intrusions by federal courts into the
structure of state government, requiring federal courts to
discard state constitutional provisions that—measured
against a vagueness standard that neither Petitioners nor
any court has ever articulated—they view as insufficiently
detailed. And it would impose an affronting double
standard. The North Carolina Supreme Court applied
provisions guaranteeing that “[a]ll elections shall be free,”
N.C. Const. art. I, § 10, that “[n]o person shall be denied
the equal protection of the laws,” id. § 19, that “[f]reedom
of speech and of the press are two of the great bulwarks
of liberty and therefore shall never be restrained,” id.
§ 14, and that that “[t]he people have a right to assemble
together to consult for their common good, to instruct
their representatives, and to apply to the General
Assembly for redress of grievances,” id. § 12. This Court
invalidates statutes enacted by Congress under the
Elections Clause under constitutional provisions at least
as open-ended, like that protecting “the freedom of
speech.” When this Court does so, it does not become
“Congress” or somehow “usurp[]” Congress’s legislative
authority. Pet. 14.
21
As a final fallback, Petitioners suggest that there is
something different about the North Carolina Supreme
Court’s exercise of judicial review in this particular case
because redistricting involves “policy choices.” Id. at 33
(quoting Cooper v. Berger, 809 S.E.2d 98, 107 (N.C. 2018)).
But as Petitioners’ reliance on North Carolina precedent
confirms, that is simply an invitation to relitigate the
conclusion of North Carolina’s Supreme Court that
Respondents’ challenge is justiciable under the standards
of state law. The state high court explained that North
Carolina’s justiciability doctrine differs from the federal
doctrine, Pet. App. 63a-64a; that the Free Elections
Clause had no federal counterpart, id. at 99a; that in
several prior decisions it had enforced state constitutional
provisions, including North Carolina’s Equal Protection
Clause, to strike down redistricting plans that would not
have violated the corresponding provisions of the U.S.
Constitution, id. at 98-99a; and that the presence of
“manageable standards for evaluating the extent to which
districting plans dilute votes on the basis of partisan
affiliation” meant that, as a matter of North Carolina law,
partisan gerrymandering claims “do not require the
making of ‘policy choices and value determinations,’” id.
at 145a (quoting Bacon, 353 N.C. at 717). While
Petitioners disagree with these conclusions, they identify
no authority, and nothing in the text of the Elections
Clause as originally understood, indicating that the
Clause gives federal courts jurisdiction to review state
courts’ compliance with their own justiciability standards
or supplant those standards with federal ones.
2. Petitioners’ theory conflicts with a century of
this Court’s precedents.
For over 100 years, this Court has repeatedly held
that the Elections Clause does not prevent state courts
from conducting judicial review of congressional
districting plans under the state’s constitution.
22
Most recently, Rucho v. Common Cause held that
“[p]rovisions in . . . state constitutions can provide
standards and guidance for state courts to apply” in
partisan gerrymandering challenges to congressional
districting plans enacted by state legislatures. 139 S. Ct.
at 2507 (emphases added). Rucho concerned North
Carolina’s 2016 congressional plan, and as an example of
state courts’ power in this realm, the Court pointed to
another state supreme court’s decision striking down the
state’s legislatively enacted congressional plan under the
state’s constitution. Id. (citing League of Women Voters of
Fla. v. Detzner, 172 So.3d 363 (Fla. 2015)).
Petitioners contend that Rucho supports their
theory, pointing to this Court’s statement that “[t]he
Framers . . . assign[ed] the issue” of redistricting “to the
state legislatures, expressly checked and balanced by the
Federal Congress.” Pet. 29 (quoting Rucho, 139 S. Ct. at
2496). But the Court was simply noting that the Framers
never envisioned that “the federal courts had a role to
play.” 139 S. Ct. at 2496 (emphasis added). Rucho’s
recognition of the role of state courts in applying state
constitutional provisions to rein in partisan
gerrymandering was essential to the Court’s holding and
promise that “complaints about districting” would not
“echo into a void.” Id. at 2507.
Even before Rucho, an unbroken line of precedent
dating back a century confirmed that state courts may
review state laws governing federal elections to
determine whether they comply with state constitutions
and that state courts may adopt court-drawn remedial
plans. In Smiley v. Holm, 285 U.S. 355 (1932), the Court
held that the Elections Clause does not “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,” which may include the participation
of other branches of state government. Id. at 368. The
23
Elections Clause does not “render[] inapplicable the
conditions which attach to the making of state laws,” id.
at 365, including “restriction[s] imposed by state
Constitutions upon state Legislatures when exercising
the lawmaking power,” id. at 369. In companion cases
decided the same day as Smiley, the Court reiterated that
state courts have authority to strike down congressional
plans that violate “the requirements of the Constitution of
the state in relation to the enactment of laws.” Koenig v.
Flynn, 285 U.S. 375, 379 (1932); see Carroll v. Becker, 285
U.S. 380, 381–82 (1932) (same). Even before Smiley, the
Court held that state legislatures may not enact laws
under the Elections Clause that are invalid “under the
Constitution and laws of the state.” State of Ohio ex rel.
Davis v. Hildebrant, 241 U.S. 565, 568 (1916).
Petitioners admit that these decisions endorse the
enforcement of “check[s] in the legislative process” by
branches of state government besides the Legislature.
Pet. 34. And they offer no textual or historical support for
their notion (Pet. 35) that judicial review—understood by
the framers to be inherent in legislation under a written
constitution—is somehow different in kind from the
“check” endorsed in these decisions.
The Court recently reaffirmed Smiley’s principle,
holding that “[n]othing 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.” Ariz. State Leg., 576 U.S at 817-18.
While the Court split over the definition of “Legislature,”
no justice asserted that the Elections Clause immunizes
congressional redistricting legislation from the “ordinary
lawmaking process.” Id. at 841 (Roberts, C.J., dissenting).
Indeed, Petitioners acknowledge that their theory
conflicts with Arizona State Legislature and suggest that
“the Court should overrule it.” Pet. 30, n.4. But the
24
readiness with which Petitioners would discard another
precedent only underscores the degree to which their
theory is irreconcilable with this Court’s historic and wellsettled understanding of the Elections Clause.
Not only are state courts authorized to evaluate a
congressional districting plan’s compliance with state
constitutional provisions, this Court’s decision in Growe v.
Emison, 507 U.S. 25 (1993), makes clear that state courts
have a greater role to play than federal courts in
adjudicating congressional redistricting claims. “The
power of the judiciary of a State to require valid
reapportionment or to formulate a valid redistricting plan
has not only been recognized by this Court but
appropriate action by the States in such cases has been
specifically encouraged.” Id. at 33 (quotations omitted).
Writing for a unanimous Court, Justice Scalia expressly
recognized state courts’ role in redistricting—not only to
review legislative enactments, but also to craft remedial
plans on their own—and held that “[t]he District Court
erred in not deferring to the state court’s efforts to
redraw Minnesota’s . . . federal congressional districts.”
Id. at 42. Far from restricting apportionment
responsibilities to a state’s legislative branch alone, the
Court affirmed that congressional reapportionment may
be conducted “though [a state’s] legislative or judicial
branch.” Id. at 33 (emphasis in original). As a result, the
Court found that the state court’s “issuance of its plan
(conditioned on the legislature’s failure to enact a
constitutionally acceptable plan)” by a date certain was
“precisely the sort of state judicial supervision of
redistricting [the Court] has encouraged.” Id. In Growe,
the district court erred in “ignoring the . . . legitimacy of
state judicial redistricting.” Id. at 34 (emphasis in
original). Petitioners make the same error here.
Petitioners’ view that the Elections Clause confines
congressional redistricting authority exclusively to state
25
legislatures and Congress also conflicts with Wesberry v.
Sanders, 376 U.S. 1 (1964), which held that the Elections
Clause’s reference to “Congress” does not deprive federal
courts of power to review congressional maps: “[N]othing
in the language of [the Elections Clause] gives support to
a construction that would immunize state congressional
apportionment laws . . . from the power of courts to
protect the constitutional rights of individuals from
legislative destruction.” 376 U.S. at 6.
Much of Petitioners’ authority stands for the
unremarkable and uncontested proposition that
redistricting in North Carolina is primarily the province
of the North Carolina General Assembly. See, e.g., Pet. 27
(noting that “state legislatures . . . bear primary
responsibility for setting election rules”). But when the
General Assembly violates the State’s constitution, it is
the obligation of North Carolina courts to exercise their
“most fundamental [] sacred dut[y]” to “protect the [state]
constitutional rights of the people of North Carolina from
overreach by the General Assembly,” and remedy the
General Assembly’s transgression. Pet. App. 9a-10a. In
doing so, North Carolina courts have fulfilled their
constitutional duty to “interpret[] the laws and, through
[their] power of judicial review, determine[] whether they
comply with the [state’s] constitution.” Pet. 10 (citing
State v. Berger, 368 N.C. 633, 635 (2016)).
3. Congress has independently exercised its
Elections Clause power to mandate
compliance with state constitutions and to
authorize state court remedial plans.
Regardless of the meaning of “Legislature” in the
first part of the Elections Clause, the second part allows
Congress “at any time” to make its own regulations
related to congressional redistricting. U.S. Const. Art. I,
§ 4. Using this authority, Congress has mandated that
states’ congressional districting plans comply with
26
substantive state constitutional provisions, and it has
authorized state courts to adopt remedial plans.
Accordingly, Petitioners’ Elections Clause theory can get
them nowhere in the context of congressional
redistricting.
Under 2 U.S.C. § 2a(c), states must follow federally
prescribed procedures for congressional redistricting
unless a state, “after any apportionment,” has redistricted
“in the manner provided by the law thereof.” As this
Court explained in Arizona State Legislature, a
predecessor to § 2a(c) had mandated those default
procedures “unless ‘the legislature’ of the State drew
district lines.” 576 U.S. at 809 (quoting Act of Jan. 16,
1901, ch. 93, § 4, 31 Stat. 734). But Congress “eliminated
the statutory reference to redistricting by the state
‘legislature’ and instead directed that” the state must
redistrict “in the manner provided by [state] law.” Id. at
809–10. Congress made that change out of “respect to the
rights, to the established methods, and to the laws of the
respective States,” and “[i]n view of the very serious evils
arising from gerrymanders.” Id. at 810 (quotation marks
omitted). And as Justice Scalia explained for the plurality
in Branch v. Smith, “the manner provided by state law”
encompasses
substantive
restrictions
in
state
constitutions: “the word ‘manner’ refers to the State’s
substantive ‘policies and preferences’ for redistricting, as
expressed in a State’s statutes, constitution, proposed
reapportionment plans, or a State’s ‘traditional districting
principles.’” 538 U.S. 254, 277–78 (2003) (citations
omitted). Justice Scalia rejected the argument that “the
word ‘manner’ … refer[s] to process or procedures, rather
than substantive requirements.” Id. Thus, unless a state’s
congressional plan complies with the substantive
provisions of the state’s constitution, § 2a(c)’s default
procedures kick in.
27
In addition to mandating compliance with substantive
state constitutional constraints, Congress has authorized
state courts to establish remedial congressional
districting plans. Under 2 U.S.C. § 2c, which requires
single-member congressional districts, courts may
“remedy[] a failure” by the state legislature “to redistrict
constitutionally,” and the statute “embraces action by
state and federal courts.” 538 U.S. at 270, 272 (emphasis
added). Section 2a(c) also recognizes state courts’ power
to adopt congressional plans. Its default procedures apply
“[u]ntil a State is redistricted in the manner provided by
[state] law,” and the Branch plurality explained that this
“can certainly refer to redistricting by courts as well as by
legislatures,” and “when a court, state or federal,
redistricts pursuant to § 2c, it necessarily does so ‘in the
manner provided by [state] law.’” Id. at 274 (emphasis
added); see Ariz. State Leg., 576 U.S. at 812 (same).
In short, any question as to whether the first part of
the Elections Clause permits state courts to review and
remedy congressional districting laws under state
constitutions is academic because Congress has declared
that state courts can do so.
4. Petitioners’ theory cannot be reconciled with
the Reduction Clause.
The Fourteenth Amendment’s Reduction Clause
confirms that the U.S. Constitution not only permits but
requires congressional districting plans to comply with
state constitutional provisions protecting voting rights.
The Reduction Clause provides that “when the right to
vote at any election for . . . Representatives in Congress”
is “denied . . . or in any way abridged,” the state’s
representation in Congress “shall be reduced”
proportionally. U.S. Const. art. XIV, § 2. McPherson v.
Blacker, 146 U.S. 1 (1892), held that, under this clause,
“[t]he right to vote intended to be protected refers to the
right to vote as established by the laws and constitution of
28
the state.” Id. at 39. McPherson thus held that “the right
to vote” in federal elections—meaning the right to vote
under the state’s own constitution—“cannot be denied or
abridged without invoking the penalty” of reducing the
state’s representation in Congress. Id. These statements
were essential to McPherson’s holding: this Court
rejected the argument that the Reduction Clause
guarantees a federal constitutional right to vote in federal
elections on the ground that the “right to vote” referenced
in the clause instead refers to state constitutional (and
statutory) rights.
This Court therefore has made clear that state
constitutional provisions protecting voting rights do apply
to voting in congressional elections. The North Carolina
Supreme Court held that the General Assembly’s 2021
congressional map violated the “right to vote” of the
state’s Democratic voters—roughly half of the
electorate—under multiple provisions of the North
Carolina Constitution. The federal Elections Clause does
not require North Carolina to conduct its congressional
elections in a manner that would trigger the loss of half of
North Carolina’s seats in Congress under the Reduction
Clause.
D. There Is No Division of Authority
Petitioners identify no split over whether the
Elections Clause forbids state courts from reviewing the
validity of legislatively enacted congressional plans under
the state constitution. Every court to have addressed that
question since Smiley has held that the Elections Clause
does not bar state judicial review. See, e.g., League of
Women Voters of Fla., 172 So. 3d at 370 & n.2. And this
case is hardly the first time a state court has applied a
state constitutional provision to invalidate a congressional
map. E.g., Moran v. Bowley, 179 N.E. 526, 531-32 (Ill.
1932) (citing cases and applying the Illinois Constitution’s
29
Free and Equal Elections Clause, pre-Wesberry, to
require population equality).
Carson v. Simon, 978 F.3d 1051 (8th Cir. 2020) did
not involve either the Elections Clause or a state court’s
invalidation of a state election law under the state
constitution. Instead, Carson concerned a consent decree
entered by the Minnesota Secretary of State extending
the statutory deadline for receipt of mail-in ballots, which
a state court approved without deciding the statute’s
validity. Id. at 1055–56. In defending the consent decree
against collateral attack in federal court, the Secretary of
State “argue[d that] the Minnesota Legislature []
delegated its authority to the Secretary.” Id. at 1060
(quoting Minn. Stat. § 204B.47). The Eighth Circuit’s
conclusion that the consent decree violated the Electors
Clause hinged solely on the interpretation of that
statute—it “d[id] not reach” whether “the Legislature’s
Article II powers concerning presidential elections can be
delegated in this manner,” id., and it never addressed
whether a state court would be empowered to invalidate
the challenged ballot-receipt deadline under the state
constitution. Accordingly, Carson has no relevance to
Petitioners’ claim.
Nor do any of Petitioners’ other cases establish a
conflict. Petitioners rely (at 20-21) on two dissents from
federal courts of appeals, both from cases that, like
Carson, involved executive alterations of statutory ballotreceipt deadlines; neither questioned the power of state
courts to review election laws under state constitutions.
Id. Of the actual decisions Petitioners cite, several predate Smiley. Pet. 19-20 (citing state court decisions from
1864, 1887, and 1921). And the post-Smiley decisions do
not remotely support Petitioners’ theory. Commonwealth
ex rel. Dummit v. O’Connell, 181 S.W.2d 691 (Ky. 1944),
stated that the “legislative process must be completed in
the manner prescribed by the State Constitution in order
30
to result in a valid enactment,” id. at 694, and held that
the statute at issue did not violate any state constitutional
provision, id. at 696. Parsons v. Ryan, 60 P.2d 910 (Kan.
1936), and State ex rel. Beeson v. Marsh, 34 N.W.2d 279
(Neb. 1948), involved the Electors Clause rather than the
Elections Clause. Parsons, moreover, did not involve a
claim that a state law violated the state constitution and
suggested that a constitutional challenge could be viable
if the state law were “discriminatory.”
Even if Petitioners identified any disagreement as to
the effect of the Elections Clause for state judicial review,
they certainly have not identified any division on the
question they have actually presented, which they claim is
limited to state court enforcement of “vague”
constitutional provisions. Pet i. Petitioners cite no
decisions suggesting that the Elections Clause forbids
judicial review under some (but not all) state
constitutional provisions, further confirming that this
ostensibly narrower question is not cert-worthy.
E. Petitioners’ Theory Would Fundamentally
Alter the Balance of State and Federal Power
Over Election Administration
The unprecedented holding Petitioners seek would
upend this nation’s federalist system and threaten to
nullify dozens of state constitutional provisions across the
country. For example, nearly every state’s constitution
contains provisions affording citizens the right to vote if
they meet specified qualifications. Other states have more
recently adopted state constitutional provisions
guaranteeing voting rights in all elections, relying on the
settled principle that state constitutions can provide
broader or more specific protections for voting rights than
the U.S. Constitution. See, e.g., Cal. Const. art. II, § 5(a)
(eliminating partisan primaries for congressional
elections); Mich. Const. art. II, § 4 (guaranteeing “[t]he
right . . . to vote a secret ballot in all elections,” “[t]he right
31
to a ‘straight party’ vote option on partisan general
election ballots,” and “[t]he right . . . to vote an absent
voter ballot without giving a reason”). Until now, nobody
had even thought to suggest that these state
constitutional provisions are void in congressional
elections. But Petitioners’ Elections Clause theory would
take us there and raise similar questions about the
consequences for procedural requirements in state
constitutions.
Petitioners’ position would wreak particular havoc in
redistricting. At least 12 state constitutions have
provisions that substantively restrict the drawing of
congressional districts by requiring that congressional
districts be contiguous and compact; preserving political
subdivisions or communities of interest; or precluding
partisan considerations or efforts to protect incumbents.
See, e.g., Rucho, 139 S. Ct. at 2507-08 (highlighting
examples). Holding that state legislatures could now
disregard the constraints placed on them by the people,
pursuant to some unchecked power supposedly granted
by the Elections Clause, would gravely public confidence
in elections.
And what about where state legislatures fail to
redistrict at all? Growe ordered deference to state courts
on matters of state constitutional compliance in the course
of impasse litigation, where the judiciary is called upon to
adopt new redistricting maps in the wake of a breakdown
in the legislative process. 507 U.S. at 1077-78. This Court
has long endorsed non-legislative map-drawing in this
context, see, e.g., Gaffney v. Cummings, 412 U.S. 735
(1973), and it is a regular feature of every redistricting
cycle. 3 Petitioners have no answer for how their reading
For examples from the 2010 and 2000 redistricting cycles, see,
e.g., Hippert v. Ritchie, 813 N.W.2d 391 (Minn. 2012); Hall v.
Moreno, 270 P.3d 961 (Colo. 2012); Egolf v. Duran, No. D-101-CV3
32
of the Elections Clause could allow the adoption of
constitutionally apportioned districts where the state
legislature fails to enact lawful maps itself. The better
reading of the Elections Clause, then, is to recognize that
state legislatures maintain primary redistricting
authority, but the map-drawing pen may pass when a
legislature—as here—fails to timely adopt lawful plans in
advance of regularly scheduled elections.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ELISABETH S. THEODORE
R. STANTON JONES
SAMUEL F. CALLAHAN
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
BURTON CRAIGE
NARENDRA K. GHOSH
PAUL E. SMITH
PATTERSON HARKAVY LLP
100 Europa Drive, Suite 420
Chapel Hill, NC 27517
(919) 942-5200
ABHA KHANNA
Counsel of Record
ELIAS LAW GROUP LLP
1700 Seventh Avenue,
Suite 2100
Seattle, WA 98101
(206) 656-0177
AKhanna@elias.law
LALITHA D. MADDURI
JACOB D. SHELLY
GRAHAM WHITE
ELIAS LAW GROUP LLP
10 G Street N.E., Suite 600
Washington, DC 20002
(202) 968-4490
MAY 20, 2022
2011-02942 (N.M. Dist. Ct., Santa Fe Cnty. Dec. 29, 2011); Guy v.
Miller, No. 11 OC 00042 1B (Nev. Dist. Ct., Carson City Oct. 27,
2011); Alexander v. Taylor, No. 97836, 51 P.3d 1204 (Okla. June 25,
2002); Zachman v. Kiffmeyer, No. C0-01-160 (Minn. Spec. Redis.
Panel Mar. 19, 2002). There are many more.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.