Amicus Curiae 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.

No. 21-1271

In the Supreme Court of the United States

_____________

TIMOTHY K. MOORE, in his official capacity as Speaker

of the North Carolina House of Representatives, et al.

Petitioners,

v.

REBECCA HARPER, et al.

Respondents,

_____________

On Writ of Certiorari to the North Carolina

Supreme Court

_____________

BRIEF OF CITIZENS UNITED, CITIZENS

UNITED FOUNDATION, AND THE

PRESIDENTIAL COALITION AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

_____________

GARY M. LAWKOWSKI

Counsel of Record

Dhillon Law Group, Inc.

2121 Eisenhower Avenue,

Suite 402

Alexandria, VA 22314

703-965-0330

GLawkowski@DhillonLaw.com

MICHAEL BOOS

DANIEL H. JORJANI*

Citizens United

Citizens United Foundation

The Presidential Coalition

1006 Pennsylvania Avenue, S.E.

Washington, D.C. 20003

202-547-5420

MichaelBoos@CitizensUnited.org

DanielJorjani@CitizensUnited.org

*Application for Admission

Pending

Counsel for amici curiae Citizens United, Citizens United

Foundation, and The Presidential Coalition

i

TABLE OF CONTENTS

STATEMENT OF INTEREST ................................... 1

INTRODUCTION ....................................................... 2

SUMMARY OF THE ARGUMENT ........................... 4

ARGUMENT............................................................... 8

I. State Authority Over Federal Elections

Derives from the Constitution ................................ 8

II.

The Text of the Constitution Assigns

Regulating the Manner of Elections to State

Legislatures, Not State Courts ............................... 9

A. The Term “Legislature” Was Commonly

Understood to Mean the Body that Exercised

Legislative Power ............................................... 10

B. The Framers Drew a Distinction Between

the “Legislature” and Other Branches of

State Government .............................................. 12

i. The Text of the Constitution

Distinguishes Between the “Legislature”

and Other Branches of State Government..... 12

ii. The History of the Constitution Confirms

that Distinguishing the “Legislature” from

the Other Branches of State Government

was a Deliberate Choice ................................. 16

ii

C. Arizona Independent Redistricting

Commission Does Not Compel an Alternative

Result in this Case ............................................. 20

III. Redistricting is an Inherently Political

Act that the Framers Properly Assigned to the

Political Branches ................................................. 23

IV. The Shift of Election Cases to Federal

Courts Does Not Render this Interpretation

Un-Originalist ....................................................... 29

CONCLUSION ......................................................... 30

iii

TABLE OF AUTHORITIES

Cases

Arizona State Legislature v. Arizona Indep.

Redistricting Comm’n,

576 U.S. 787 (2015) ....................................... passim

Baker v. Carr,

369 U.S. 186 (1962) ...................................27, 28, 29

Bush v. Palm Beach Cnty. Canvassing Bd.,

531 U.S. 70 (2000) .................................................. 8

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) ................................................ 1

Colegrove v. Green,

328 U.S. 549 (1946) ...................................23, 27, 29

Colorado Gen. Assembly v. Salazar,

541 U.S. 1093 (2004) .............................................. 4

Cook v. Gralike,

531 U.S. 510 (2001) ............................................ 8, 9

Davis v. Bandemer,

478 U.S. 109 (1986) ........................................ 23, 24

Democratic Nat’l Comm. v. Wisconsin State

Legislature,

141 S. Ct. 28 (2020) .................................... 2, 10, 24

Fed. Election Comm’n v. Wisconsin Right to

Life, Inc.,

551 U.S. 449 (2007) ................................................ 9

Gaffney v. Cummings,

412 U.S. 735 (1973) .............................................. 24

Gomillion v. Lightfoot,

364 U.S. 339 (1960) ........................................ 28, 29

iv

Harper v. Hall,

380 N.C. 317 (2022) ................................................ 3

Hawke v. Smith,

253 U.S. 221 (1920) ...................................10, 11, 16

Luther v. Borden,

48 U.S. 1 (1849) .................................................... 27

Marbury v. Madison,

5 U.S. 137 (1803) .................................................. 26

McPherson v. Blacker,

146 U.S. 1 (1892) .................................................... 8

Miller v. Johnson,

515 U.S. 900 (1995) .............................................. 24

Moore v. Circosta,

141 S. Ct. 46 (2020) .............................................. 22

Moore v. Harper,

142 S. Ct. 1089 (2022) .................................. 4, 9, 10

Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor,

142 S. Ct. 661 (2022) .............................................. 2

North Carolina League of Conservation Voters,

Inc. v. Hall,

Nos. 21 CVS 015426 & 21 CVS 500085, 2022 WL

2610499 (N.C. Super. Feb. 23, 2022) ...................... 3

North Carolina League of Conservation Voters,

Inc. v. Hall,

Nos. 21 CVS 015426 & 21 CVS 500085,

2022 WL 2610501 (N.C. Super. Feb. 16, 2022)....... 3

Republican Party of Pennsylvania v. Boockvar,

141 S. Ct. 1 (2020) .................................................. 7

v

Republican Party of Pennsylvania v. Degraffenreid,

141 S. Ct. 732 (2021) .............................................. 8

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) ......................... 24, 25, 27, 28

United States Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) ................................................ 8

Vieth v. Jubelirer,

541 U.S. 267 (2004) ........................................ 23, 25

Statutes

26 U.S.C. § 501(c)(3) ................................................... 1

26 U.S.C. § 501(c)(4) ................................................... 1

Constitutional Provisions

AZ Const. art. IV, pt. 1, § 1 ...................................... 22

NC Const. art. II, § 1 ................................................ 21

NC Const. art. IV, § 1 ............................................... 22

NC Const., art. IV, § 3 .............................................. 22

U.S. Articles Of Confederation, art. V ..................... 19

U.S. Const. amend. X ................................................. 4

U.S. Const. amend. XIV, § 2 ..................................... 14

U.S. Const. amend. XIV, § 3 ..................................... 14

U.S. Const. amend. XVII, cl. 1 ................................. 15

U.S. Const. amend. XVII, cl.2 .................................. 14

U.S. Const. art. I § 4, cl. 1 ........................................ 10

U.S. Const. art. I, § 2 cl. 1 ........................................ 15

U.S. Const. art. I, § 3 cl. 1 ........................................ 15

vi

U.S. Const. art. I, § 3, cl. 2 ....................................... 13

U.S. Const. art. IV, § 4 ............................................. 13

U.S. Const. art. VI, cl. 3 ........................................... 13

Other Authorities

1 Debates on the Federal Constitution 146 (J.

Elliot ed. 1836) ...................................................... 16

1 Story § 627 ............................................................... 8

2 An American Dictionary of the English

Language (1828) .................................................... 11

2 Journals of the Continental Congress 17741789 (Worthington C. Ford ed., Gov’t Prtg. Off.

1905) ...................................................................... 18

3 Colonial Records of North Carolina (W.

Saunders ed. 1886) ................................................ 25

4 Letters of Delegates to Congress, 1774-1789

(Paul H. Smith et al eds., Lib. Of Cong. 1979) ..... 18

5 Journals of the Continental Congress 17741789 (Worthington C. Ford ed., Gov’t Prtg. Off.

1906) ...................................................................... 19

6 Journals of the Continental Congress 17741789 (Worthington C. Ford ed., Gov’t Prtg. Off.

1906) ...................................................................... 19

Alexander Hamilton, Federalist 22 (Dec. 14,

1787) ...................................................................... 11

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ......... 9, 12

vii

Brief of Citizens United and Citizens United

Foundation as Amici Curiae in Support of

Respondent, Securities and Exchange

Commission v. Cochran, No. 21-1239 (U.S. Jul.

7, 2022) .................................................................... 1

Brief of Citizens United, Citizens United

Foundation, and The Presidential Coalition as

Amici Curiae in Support of Appellants and

Petitioners, Merrill, et al. v. Milligan, et al.,

Nos. 21-1086, 21-1087, 2022 WL 1432037 (U.S.

May 2, 2022) ............................................................ 1

Digest 32.69 pr. (Marcellus) ....................................... 9

G. Alan Tarr, Understanding State Constitutions

(1998) ..................................................................... 26

Hayward H. Smith, Revisiting the History of the

Independent State Legislature Doctrine, 53 St.

Mary’s L.J. 445 (2022) .................................... passim

M. Klarman, The Framers’ Coup: The Making of

the United States Constitution (2016) ................... 27

Michael T. Morley, The Intratextual Independent

“Legislature” and the Elections Clause, 109 Nw.

U. L. Rev. Online 131 (2015) ........................... 11, 15

Sketch of Articles of Confederation, National

Archives at Philadelphia ....................................... 17

Sylvia Snowiss, Judicial Review and the Law of

the Constitution (1990) .......................................... 26

viii

Vikram David Amar and Akhil Reed Amar,

Eradicating Bush-League Arguments Root and

Branch: The Article II Independent-StateLegislature Notion and Related Rubbish,

Supreme Court Review (2022) ........................ 23, 29

1

STATEMENT OF INTEREST1

Citizens

United

and

Citizens

United

Foundation are dedicated to restoring government to

the people through a commitment to limited

government, federalism, individual liberty, and free

enterprise. Citizens United and Citizens United

Foundation regularly participate as litigants (e.g.,

Citizens United v. Fed. Election Comm’n, 558 U.S. 310

(2010)) and amici in important cases in which these

fundamental principles are at stake (See, e.g., Brief of

Citizens United and Citizens United Foundation as

Amici Curiae in Support of Respondent, Securities and

Exchange Commission v. Cochran, No. 21-1239 (U.S.

Jul. 7, 2022); Brief of Citizens United, Citizens United

Foundation, and The Presidential Coalition as Amici

Curiae in Support of Appellants and Petitioners,

Merrill, et al. v. Milligan, et al., Nos. 21-1086, 21-1087,

2022 WL 1432037 (U.S. May 2, 2022)).

Citizens United is a nonprofit social welfare

organization exempt from federal income tax under

Internal Revenue Code (“IRC”) section 501(c)(4).

Citizens United Foundation is a nonprofit educational

and legal organization exempt from federal income tax

under IRC section 501(c)(3). These organizations were

established to, among other things, participate in the

public policy process, including conducting research,

1 No party’s counsel authored this brief in whole or in part.

No

party’s counsel or party contributed money that was intended to

fund preparing or submitting this brief. No person other than

amici curiae, its members, or its counsel contributed money that

was intended to fund preparing or submitting this brief. The

parties have either filed blanket consents to the filing of briefs of

amici curiae in this case or provided written consent to amici.

2

and informing and educating the public on the proper

construction of state and federal constitutions, as well

as statutes related to the rights of citizens, and

questions related to human and civil rights secured by

law.

The Presidential Coalition, LLC is an IRC

section 527 political organization founded to educate

the American public on the value of having principled

leadership at all levels of government.

INTRODUCTION

“The central question we face today is: Who

decides?” Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor,

142 S. Ct. 661, 667 (2022) (Gorsuch, J., concurring).

“The Constitution provides that state

legislatures – not federal judges, not state judges, not

state governors, not other state officials – bear

primary responsibility for setting election rules. . . .

And the Constitution provides a second layer of

protection too” by authorizing Congress to serve as a

backstop. Democratic Nat’l Comm. v. Wisconsin State

Legislature, 141 S. Ct. 28, 29 (2020) (Gorsuch, J.,

concurring in denial of application to vacate stay)

(citations omitted).

Yet, in this case, the state courts have

functionally usurped the legislature’s authority by not

only purporting to invalidate the redistricting plans

developed by the General Assembly, but acting on

their own initiative to hire their own staff of purported

experts to develop their own redistricting plan and

imposing that plan on people of North Carolina by

3

judicial fiat.

See North Carolina League of

Conservation Voters, Inc. v. Hall, Nos. 21 CVS 015426

& 21 CVS 500085, 2022 WL 2610501, at *1 (N.C.

Super. Feb. 16, 2022) (determining “[a]fter a careful

and thorough consideration of each proposed

candidate, the Court will instead appoint three highlyqualified candidates of its own selection as Special

Masters to assist the Court in this matter.”); North

Carolina League of Conservation Voters, Inc. v. Hall,

Nos. 21 CVS 015426 & 21 CVS 500085, 2022 WL

2610499, at *9-10 (N.C. Super. Feb. 23, 2022)

(rejecting the General Assembly’s Congressional

remedial districting plans and adopting the plans

drawn by the court’s “own selection” of special

masters). 2

“Like most provisions of the Constitution, the

Elections Clause reflected a compromise. . . . This

Court has no power to upset such a compromise simply

because we now think that it should have been struck

differently.” See Arizona State Legislature v. Arizona

Independent Redistricting Comm’n, 576 U.S. 787, 837

(2015) (Roberts, C.J., dissenting). “[I]f the language of

2 In striking down the General Assembly’s redistricting map, the

North Carolina Supreme Court reassured “[t]his case does not

ask us to remove all discretion from the redistricting process”

because “[t]he General Assembly will still be required to make

choices regarding how to reapportion state legislative and

congressional districts in accordance with traditional neutral

districting criteria that will require legislators to exercise their

judgment.” Harper v. Hall, 380 N.C. 317, 364 (2022). Subsequent

events belied these claims. The Superior Court effectively cut the

General Assembly out of the Congressional redistricting process

by choosing and hiring its own outside experts and imposing its

own redistricting map.

4

the Elections Clause is taken seriously, there must be

some limit on the authority of state courts to

countermand actions taken by state legislatures when

they are prescribing rules for the conduct of federal

elections.” Moore v. Harper, 142 S. Ct. 1089, 1091

(2022) (Alito, J., dissenting from denial of application

for stay); see also Colorado Gen. Assembly v. Salazar,

541 U.S. 1093, 1095 (2004) (Rehnquist, C.J.,

dissenting) (“[T]o be consistent with Article I, § 4,

there must be some limit on the State’s ability to

define lawmaking by excluding the legislature itself in

favor of the courts.”). If there is any limit to the

authority of State courts to countermand the will of

State legislatures in redistricting for federal elections,

it should apply here.

Based on the text, history, and purpose of the

Elections Clause, the state court’s actions in this case

are an ultra vires intrusion upon the authority

constitutionally committed to the State Legislature.

Accordingly, the decision of the court below should be

reversed.

SUMMARY OF THE ARGUMENT

This case is about who gets to decide how

members of Congress are elected: state courts or state

legislatures.

The election of federal officeholders is governed

by the federal constitution. As sovereign entities, the

States had substantial powers prior to the adoption of

the Constitution and retained much of this authority,

even after the Constitution was adopted.

See

generally U.S. Const. amend. X. However, the election

5

of federal officers was not one of the States’ inherent

powers. The existence of federal offices derives from

the Constitution, and it is only through the delegation

of authority in the Constitution that states (or the

organs thereof) have the power to regulate federal

elections. Accordingly, state courts do not have an

inherent power to opine on federal elections as they

would over other subject matter, such as limitations

on the general police power.

In delegating authority to regulate federal

elections, the Constitution explicitly commits

determinations about the “time, place, and manner” of

federal elections to “the legislature” of the state. This

textual commitment is significant. First, the term

“legislature” was a commonly understood term at the

time of the Framers, and at minimum meant the body

that exercises legislative authority in the State.

Second, a review of the text of the Constitution shows

that the Framers drew deliberate and meaningful

distinctions between the “legislature” and other

branches of state government, such as the judicial or

executive branch. Third, the significance of these

distinctions is confirmed by the history of the

Constitution and Articles of Confederation, which

both reflect careful consideration and deliberate

choices to assign authority to the “legislature,” rather

than the State as a whole or another branch of the

government thereof. Finally, the Court’s decision in

Arizona Independent Redistricting Commission, 576

U.S. 787, does not compel a different result; however

broadly the “legislature” is defined, it does not include

the state courts of North Carolina.

6

The process of redistricting is an inherently

political process that the Framers properly assigned to

the political branches of government. Some have

sought to characterize this case as a conflict between

a substantive State constitutional provision and a

State legislature. The issue is better framed as a

question of who gets to decide? Who gets to decide

initially what the best map is; who gets to decide if a

violation of the state constitution has occurred; and, if

so, who gets to decide the proper remedy? The

Framers were far more comfortable than many today

with the idea that not every provision of the

Constitution would have a judicial remedy. Some

provisions would need to be enforced by the political

branches. To that end, the Framers assigned the task

of regulating the time, place, and manner of elections

to the governing institutions with the greatest

institutional competence to handle an inherently

political task, the state and national legislatures. The

proliferation of election litigation that has become

common place today is a comparatively modern

innovation and should not color interpretations of the

original meaning of the Elections Clause.

Finally, the central role of federal courts in

election disputes today, particularly relative to state

institutions, does not invalidate a textualist

interpretation of the Elections Clause on originalist

grounds. The current role of federal courts in election

disputes derives its authority from post-ratification

amendments,

particularly

the

Fourteenth

Amendment, and largely came into its own through

shifts in the Court’s jurisprudential approach to

districting cases in the middle of the Twentieth

7

Century. Thus, it is not properly attributable to a

textualist interpretation of the Elections Clause. If

interpretating the Elections Clause to limit the role of

state courts elevates the role of federal courts vis-à-vis

the States, it is a consequence of intervening events,

not the original meaning of the Elections Clause.

What the state courts have done in this case is

truly extraordinary. They have not only rejected the

map approved by the General Assembly, they have

also taken it upon themselves to hire their own team

of experts, drawn their own map, disregarded the

General Assembly’s input, and purported to impose

their map on the State of North Carolina by judicial

fiat. “The provisions of the Federal Constitution

conferring on state legislatures, not state courts, the

authority to make rules governing federal elections

would be meaningless if a state court could override

the rules adopted by the state legislature simply by

claiming that a state constitutional provision gave the

courts the authority to make whatever rules it thought

appropriate for the conduct of a fair election.”

Republican Party of Pennsylvania v. Boockvar, 141 S.

Ct. 1, 2 (2020) (Alito, J., Statement of Justice). If the

word “legislature” in the Elections Clause is to have

any practical meaning, the decision of the state court

must be reversed.

8

ARGUMENT

I.

State Authority Over Federal Elections

Derives from the Constitution

“For more than a century, this Court has

recognized that the Constitution ‘operat[es] as a

limitation upon the State in respect of any attempt to

circumscribe the legislative power’ to regulate federal

elections.” Republican Party of Pennsylvania v.

Degraffenreid, 141 S. Ct. 732, 733 (2021) (Thomas, J.,

dissenting from the denial of certiorari) (quoting

McPherson v. Blacker, 146 U.S. 1, 25 (1892)). This is

because the ability to regulate elections for federal

office is a power that was delegated to the States

under the Constitution; it is not a power reserved to

the States to be exercised in the any manner they see

fit. See, e.g., Cook v. Gralike, 531 U.S. 510 (2001);

United States Term Limits, Inc. v. Thornton, 514 U.S.

779 (1995).

“[A]s

the

Framers

recognized,

electing

representatives to the National Legislature was a new

right, arising from the Constitution itself.” United

States Term Limits, Inc., 514 U.S. at 805. “It is no

original prerogative of state power to appoint a

representative, a senator, or a president for the

union.” Cook, 531 U.S. at 522 (quoting 1 Story § 627);

see also generally Bush v. Palm Beach Cnty.

Canvassing Bd., 531 U.S. 70, 76 (2000) (“[I]n the case

of a law enacted by a state legislature applicable not

only to elections to state offices, but also to the

selection of Presidential electors, the legislature is not

acting solely under the authority given it by the people

9

of the State, but by virtue of a direct grant of

authority”

under

the

federal

Constitution).

Accordingly, “[t]his case is governed . . . by the Federal

Constitution. The States do not . . . ‘retain autonomy

to establish their own governmental processes’ . . . if

those ‘processes’ violate the United States

Constitution.” Arizona Indep. Redistricting Comm’n,

576 U.S. at 827 (Roberts, C.J., dissenting).

“By process of elimination, the States may regulate

the incidents of [congressional] elections . . . only

within the exclusive delegation of power under the

Elections Clause.” Cook, 531 U.S. at523. Thus, “[t]he

question presented is one of federal not state law

because the state legislature, in promulgating rules

for congressional elections, acts pursuant to a

constitutional mandate under the Elections Clause.”

Moore, 142 S. Ct. at 1091 (Alito, J., dissenting from the

denial of application for stay).

II.

The Text of the Constitution Assigns

Regulating the Manner of Elections to

State Legislatures, Not State Courts

“The Framers’ actual words put these cases in

proper perspective.”

Fed. Election Comm’n v.

Wisconsin Right to Life, Inc., 551 U.S. 449, 482 (2007);

see also Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts, at 56 (2012)

(“As Justinian’s Digest put it: A verbis legis non est

recedendum (‘Do not depart from the words of the

law’).” (quoting Digest 32.69 pr. (Marcellus))).

The Elections Clause of the Constitution states:

“The Times, Places and Manner of holding Elections

10

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 (emphasis

added). This “language specifies a particular organ of

state government, and [the Court] must take that

language seriously.” Moore, 142 S. Ct. at 1090 (Alito,

J., dissenting from the denial of application for stay).

A. The Term “Legislature” Was Commonly

Understood to Mean the Body that

Exercised Legislative Power

In

Arizona

Independent

Redistricting

Commission, the Chief Justice laid out the how the

text and history of the Constitution confirms that

“legislature” means just that, the body in the state

that exercises legislative power. See Arizona Indep.

Redistricting Comm’n, 576 U.S. at 824 (Roberts, C.J.,

dissenting). The text of the Constitution, as well as

the original public meaning of the term “legislature,”

confirm that the Elections Clause means exactly what

it says: “state legislatures – not federal judges, not

state judges, not state governors, not other state

officials – bear primary responsibility for setting

election rules.” Democratic Nat’l Comm., 141 S. Ct. at

29 (Gorsuch, J., concurring in denial of application to

vacate stay).

The term “legislature” “was not a term of

uncertain meaning when incorporated into the

Constitution.” Hawke v. Smith, 253 U.S. 221, 227

(1920).

Rather, “[a] Legislature was then the

11

representative body which made the laws of the

people.” Id. To wit, “Noah Webster’s heralded

American Dictionary of the English language defines

‘legislature’ as ‘[t]he body of men in a state or

kingdom, invested with power to make and repeal

laws” and notes that “[t]he legislatures of most of the

States in America . . . consist of two houses or

branches.” Arizona Indep. Redistricting Comm’n, 576

U.S. at 828 (Roberts, C.J., dissenting) (quoting 2 An

American Dictionary of the English Language (1828)).

State courts generally are not the body invested with

power to make or repeal laws, nor do they typically

consist of “two houses.”

This view is confirmed by the fact that “every

state constitution from the Founding Era that used

the term legislature defined it as a distinct

multimember entity comprised of representatives.”

Id. (quoting Michael T. Morley, The Intratextual

Independent “Legislature” and the Elections Clause,

109 Nw. U. L. Rev. Online 131, 147, n. 101 (2015)).

Moreover,

this

differentiation

between

branches of State governments is reflected in other

contemporary writings. For example, Federalist 22

states “[t]he treaties of the United States, under the

present Constitution, are liable to the infractions of

thirteen different legislatures, and as many different

courts of final jurisdiction, acting under the authority

of those legislatures.” Alexander Hamilton, Federalist

22

(Dec.

14,

1787),

available

at

https://guides.loc.gov/federalist-papers/text-21-30#slg-box-wrapper-25493335, (emphasis added).

12

B. The Framers Drew a Distinction Between

the “Legislature” and Other Branches of State

Government

i. The Text of the Constitution

Distinguishes

Between

the

“Legislature” and Other Branches of

State Government

For the Framers, the term “legislature” was not

synonymous with “State;” it meant then, as it means

now, the legislative branch of the State government,

distinct from the other branches of State government.

It is a general contextual canon of construction

that “[a] word or phrase is presumed to bear the same

meaning throughout a text” while “a material

variation in terms suggests a variation in meaning.”

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts, at 170 (2012). “When

seeking to discern the meaning of a word in the

Constitution, there is no better dictionary than the

rest of the Constitution itself.”

Arizona Indep.

Redistricting Comm’n, 576 U.S. at 829 (Roberts, C.J.,

dissenting).

“The

Constitution

includes

seventeen

provisions referring to a State’s ‘Legislature.’ . . .

Every one of those references is consistent with the

understanding of a legislature as a representative

body,” while “many of them are only consistent with

an institutional legislature.” Id. (citations omitted).

13

For example, six provisions explicitly

distinguish the State legislature from either the State

executive or judiciary:

•

“ . . . if Vacancies happen by Resignation, or

otherwise, during the Recess of the Legislature

of any State, the Executive thereof may make

temporary Appointments until the next

Meeting of the Legislature, which shall then fill

such Vacancies.” U.S. Const. art. I, § 3, cl. 2

(emphasis added);

•

“The United States shall guarantee to every

State in this Union a Republican Form of

Government, and shall protect each of them

against Invasion; and on Application of the

Legislature, or of the Executive (when the

Legislature cannot be convened), against

domestic violence.” U.S. Const. art. IV, § 4

(emphasis added);

•

“The Senators and Representatives before

mentioned, and the Members of the several

State Legislatures, and all executive and

judicial Officers, both of the United States and

of the Several States shall be bound by Oath or

Affirmation, to support this Constitution . . . .”

U.S. Const. art. VI, cl. 3 (emphasis added);

•

“But when the right to vote at any election for

the choice of electors for President and Vice

President of the United States, Representatives

in Congress, the Executive and Judicial officers

of a State, or the members of the Legislature

thereof, is denied to any of the male inhabitants

14

of such State . . .” U.S. Const. amend. XIV, § 2

(emphasis added);

•

“No person shall be a Senator or Representative

in Congress, or elector of President and Vice

President, or hold any office, civil or military,

under the United States, or under any State,

who, having previously taken an oath, as a

member of Congress, or as an office of the

United States, or as a member of the State

Legislature, or as an executive or judicial officer

of any State, to support the Constitution of the

United States, shall have engaged in

insurrection or rebellion against the same, or

given aid or comfort to the enemies thereof.”

U.S. Const. amend. XIV, § 3 (emphasis added);

•

“When vacancies happen in the representation

of any such State in the Senate, the executive

authority of such State shall issue writs of

election to fill such vacancies; Provided,

[emphasis in original] That the legislature of

any State may empower the executive thereof

to make temporary appointments until the

people fill the vacancies by election as the

legislature may direct.” U.S. Const. amend.

XVII, cl.2 (emphasis added).

“This juxtaposition of different branches suggests

that, just as references to a state’s executive are best

construed as referring to its governor, references to a

state’s legislative branch are best construed as

referring to its main lawmaking body comprised of

elected representatives.” Morely, The Intratextual

15

Independent ‘Legislature’ and the Elections Clause,

109 Nw. U. L. Rev. Online at 140 (2015). .

An additional two clauses refer to “branches” of

the State legislature, which only make sense as a

reference to an institutional legislative body. See U.S.

Const. art. I, § 2 cl. 1 (“The House of Representatives

shall be composed of Members chosen every second

Year by the People of the several States, and the

Electors in each State shall have the Qualifications

requisite for Electors of the most numerous Branch of

the State Legislature.” (emphasis added)); U.S. Const.

amend. XVII, cl. 1 (“The electors in each State shall

have the qualifications requisite for electors of the

most numerous branch of the State legislatures.”

(emphasis added); see also Arizona Indep.

Redistricting Comm’n, 576 U.S. at 830 (Roberts, C.J.,

dissenting) (noting that Article I, section 2, clause 1’s

“reference to a ‘Branch of the State Legislature’ can

only be referring to an institutional body . . . .”).

Finally, there is the specific example of the

Seventeenth Amendment and the direct election of

U.S. Senators. Article I, section 3, clause 1 reads “The

Senate of the United States shall be composed of two

Senators from each State, chosen by the Legislature

thereof, for six Years; and each Senator shall have one

vote.” U.S. Const. art. I, § 3 cl. 1. As the Chief Justice

has noted, reading “Legislature” in this clause as

anything other than the institutional branch of state

government makes the proponents of the Seventeenth

Amendment “chumps” and “renders the Seventeenth

Amendment [providing for the direct election of U.S.

Senators] an 86-year waste of time.” Arizona Indep.

16

Redistricting Comm’n, 576 U.S. at 825, 832 (Roberts,

C.J., dissenting); see also Hawke, 253 U.S. at 228 (“It

was never suggested, so far as we are aware, that the

purpose of making the office of Senator elective by the

people could be accomplished by a referendum vote.

The necessity of the amendment to accomplish the

purpose of popular election is shown in the adoption of

the amendment.”).

ii. The History of the Constitution

Confirms that Distinguishing the

“Legislature”

from

the

Other

Branches of State Government was a

Deliberate Choice

The history of the Constitution confirms that

the Framers made a deliberate choice to distinguish

the “legislature” from the other branches of state

government and from the “State” more broadly.

As the Chief Justice has observed, “[t]he first

known draft of the [Elections] Clause to appear at the

Constitutional Convention provided that ‘Each state

shall prescribe the time and manner of holding

elections.’” Arizona Indep. Redistricting Comm’n, 576

U.S. at 836 (Roberts, C.J., dissenting) (quoting 1

Debates on the Federal Constitution 146 (J. Elliot ed.

1836)). This “insertion of ‘the legislature’ indicates

that the Framers thought carefully about which entity

within the State was to perform congressional

districting.” Id.

The history of the development and adoption of

the Articles of Confederation further confirm that this

allocation of authority was the product of careful

17

deliberation.

As scholars have noted, “[t]he

‘legislature’ language adopted by the Framers for the

Elector Appointment and Elections Clauses closely

resembles the ‘legislature’ language of Article V of the

Articles of Confederation.” Hayward H. Smith,

Revisiting the History of the Independent State

Legislature Doctrine, 53 St. Mary’s L.J. 445, 481

(2022) (citations omitted).

“Given the textual

similarities, the Framers’ decision to use the

‘legislature’ language again in the new Constitution

should be viewed in light of their prior experience

under the Articles.” Id. at 482 (citations omitted).

In preparing the Articles of Confederation, the

Framers confronted the same problem that the

Elections Clause is designed to address: how to select

members of the national legislature.

In 1775,

Benjamin Franklin submitted a “Sketch of Articles of

Confederation” to the Continental Congress. See

Sketch of Articles of Confederation, National Archives

at

Philadelphia,

https://www.archives.gov/philadelphia/exhibits/frankl

in/articles.html (Accessed Aug. 26, 2022).

This

document served as the “framework” for John

Dickinson, who is generally believed to have drafted

much of the Articles of Confederation, and the

committee that submitted the final version of the

Articles of Confederation.

Id.; see also Smith,

Revisiting the History of the Independent State

Legislature Doctrine, 53 St. Mary’s L.J. at 465-66

(2022). Franklin proposed that delegates to the

“General Congress” be elected “at such Time and Place

as shall be agreed on in [] the next preceding

Congress.” Id. at 466 (quoting 2 Journals of the

18

Continental Congress 1774-1789, at 196 (Worthington

C. Ford ed., Gov’t Prtg. Off. 1905)).

The first draft of Dickinson in the summer of

1776 built on Franklin’s framework, but provided that

instead of being appointed at a time and place set by

Congress, delegates would be “Annually appointed by

Each Colony.” Id. at 466 (quoting 4 Letters of

Delegates to Congress, 1774-1789, at 252 (Paul H.

Smith et al eds., Lib. Of Cong. 1979)). It further

granted “a power reserved in Each Colony to

supersede the Deligates [sic] thereof at any time

within the year and to send new Deligates [sic] in their

Stead for the Remainer of the year.” Id. at 467.

The next draft prepared by Dickinson shifted to

something more familiar to modern readers, providing

“Delegates shall be annually appointed by Legislature

of each Colony or such Branch thereof as the Colony

shall authorize for that purpose” with “a Power

reserved to those who appointed the said Delegates, to

supersede them or any of them, at any Time within

the Year, and to send new Delegates in their stead for

the Remainder of the Year.” Id. at 467 (quoting 4

Letters of Delegates to Congress, 1774-1789, at 241

(Paul H. Smith et al eds., Lib. Of Cong. 1979)).

The third (and final) draft prepared by

Dickinson before the draft Articles were read to

Congress provided “Delegates should be annually

appointed in such Manner as the Legislature of each

Colony shall direct,” with “a Power reserved to those

who appointed the said Delegates, respectively to recal

[sic] them or any of them at any time within the year,

19

and to send new Delegates in their stead for the

Remainer of the Year.” Id. at 468 (quoting 5 Journals

of the Continental Congress 1774-1789, at 549-50

(Worthington C. Ford ed., Gov’t Prtg. Off. 1906)).

During debate, Congress made two additional

non-substantive changes to Dickinson’s draft: “First,

‘should be annually appointed’ was changed to ‘shall

be annually appointed.’ Second, the power to ‘recal

[sic]’ delegates was now reserved ‘to each State,’ as

opposed to ‘those who appointed the said Delegates.’”

Id. at 469 (quoting 5 Journals of the Continental

Congress 1774-1789, at 680 (Worthington C. Ford ed.,

Gov’t Prtg. Off. 1906)).

This later change was

intentional and specifically meant to draw a

distinction between the “legislature” and the “State”

writ large: “According to John Adams’ notes of the

debates on July 26, 1776, the second change occurred

after Francis Hopkinson of New Jersey moved ‘that

the power of recalling delegates be reserved to the

State, not to the Assembly, because that may be

changed.’” Id. at 469 (quoting 6 Journals of the

Continental

Congress

1774-1789,

at

1077

(Worthington C. Ford ed., Gov’t Prtg. Off. 1906)).

The end result was that, under the Articles of

Confederation, “delegates [to Congress] shall be

annually appointed in such manner as the legislature

of each state shall direct.”

U.S. Articles Of

Confederation, art. V.

The Framers experience drafting and living

under the Articles of Confederation show that

reference to the “legislature” in the Elections Clause

20

is neither a quirk of history nor a shoddy shorthand

for referring to the State as a political entity. The

drafters of the Articles of Confederation took the

distinction

between

assigning

powers

and

responsibilities to the “legislature” versus the “State”

seriously and, as John Adams’ notes suggest, made

specific changes to the language of the Articles of

Confederation to effectuate their preferences in this

regard.

Based on the temporal proximity, textual

similarity, and history of the Elections Clause itself, it

is clear that there is no hidden meaning in the

Elections Clause. When the Framers used the word

“legislature,” they meant the legislature. They did not

mean state courts.

C. Arizona Independent Redistricting

Commission Does Not Compel an

Alternative Result in this Case

For the reasons set forth in the Chief Justice’s

dissent, amici believe that Arizona Independent

Redistricting Commission was wrongly decided.

Nevertheless, it is not necessary to revisit that

decision to resolve this case: however broadly the term

“legislature” is defined, it does not include the state

courts of North Carolina.

In

Arizona

Independent

Redistricting

Commission, the Court held that the creation of an

“Independent Redistricting Commission” by ballot

initiative to create maps for Congressional elections

did not violate the Elections Clause. In doing so, the

Court acknowledged that redistricting is a “legislative

21

function.” See, e.g., Arizona Indep. Redistricting

Comm’n, 576 U.S. at 808. It further concluded that,

under Arizona law, the people of the State were duly

authorized to perform legislative functions. See, id.

at 795, 796 (“[T]he Arizona Constitution ‘establishes

the electorate [of Arizona] as a coordinate source of

legislation’ on equal footing with the representative

legislative body. . . . ‘General references to the power

of the “legislature” in the Arizona Constitution

‘include the people’s right (specified in Article IV, part

1) to bypass their elected representatives and make

laws directly through initiative.’” (citations omitted)).

Put differently, the Court acknowledged that

the Elections Clause assigns redistricting exclusively

to the “legislature,” but concluded that under State

law, the entire electorate of Arizona was part of the

“legislature” because it was authorized to exercise

legislative power.

Nothing in the Court’s syllogism is contrary to

Petition’s claims in this case. State courts are

generally not “legislatures;” while there may be some

state-specific exceptions, unlike the electorate of

Arizona, they generally do not perform “legislative

functions.”

This is particularly true in North Carolina.

Unlike the Constitution of Arizona, the Constitution

of North Carolina vests the legislative power of the

State in the General Assembly. Compare NC Const.

art. II, § 1 (“The legislative power of the State shall be

vested in the General Assembly, which shall consist of

a Senate and a House of Representatives.”) with AZ

22

Const. art. IV, pt. 1, § 1 (“The legislative authority of

the state shall be vested in the legislature, consisting

of a senate and a house of representatives, but the

people reserve the power to propose laws and

amendments to the constitution and to enact or reject

such laws and amendments at the polls,

independently of the legislature; and they also

reserve, for use at their own option, the power to

approve or reject at the polls any act, or item, section,

or part of any act, of the legislature.”); see also Moore

v. Circosta, 141 S. Ct. 46, 47 (2020) (Gorsuch, J.,

dissenting from denial of application for injunctive

relief) (“Everyone agrees . . . that the North Carolina

Constitution expressly vests all legislative power in

the General Assembly.”).

Moreover, like the people of Arizona, the people

of North Carolina knew how to divide authority

between branches of government when they so choose.

To wit, the “judicial power of the State” is generally

vested in the state courts, except that “[t]he General

Assembly may vest in administrative agencies

established pursuant to law such judicial powers as

may be reasonably necessary as an incident to the

accomplishment of the purposes for which the

agencies were created.” NC Const. art. IV, §§ 1, 3.

They did not do so for the legislative power.

Regardless of whether the people of a state are

part of the “legislature” for purposes of the Elections

Clause, the state courts, particularly in North

Carolina, are not. It is not necessary to revisit Arizona

Independent Redistricting Commission to resolve this

23

case: there is only one state “legislature” in North

Carolina and it is the General Assembly.

III.

Redistricting is an Inherently Political

Act that the Framers Properly Assigned

to the Political Branches

Many critics of Petitioners’ position have sought

to frame the issue as one of whether state legislatures

are bound by state constitutions when engaged in

congressional districting. See, e.g., Vikram David

Amar and Akhil Reed Amar, Eradicating BushLeague Arguments Root and Branch: The Article II

Independent-State-Legislature Notion and Related

Rubbish,

Supreme

Court

Review

(2022),

https://www.journals.uchicago.edu/doi/abs/10.1086/72

0128; Smith, Revisiting the History of the Independent

State Legislature Doctrine, 53 St. Mary’s L.J. 445

(2022). This framing misstates the question. “The

issue we have discussed is not whether severe

partisan gerrymanders violate the Constitution, but

whether it is for the courts to say when a violation has

occurred, and to design a remedy.” Vieth v. Jubelirer,

541 U.S. 267, 292 (2004).

Redistricting is an inherently political process.

To wit, “[t]he one stark fact that emerges from a study

of the history of Congressional apportionment is its

embroilment in politics, in the sense of party contests

and party interests.” Colegrove v. Green, 328 U.S. 549,

554 (1946); see also Vieth, 541 U.S. at 285 (noting

“unsurprisingly [districting] turns out to be root-andbranch a matter of politics.”); Davis v. Bandemer, 478

U.S. 109, 145 (1986) (O’Connor, J., concurring in

24

judgment)

(“[T]he

legislative

business

of

apportionment is fundamentally a political affair, and

challenges to the manner in which an apportionment

has been carried out-by the very parties that are

responsible for this process-present a political

question in the truest sense of the term.”). This is

because “[t]he reality is that districting inevitably has

and is intended to have substantial political

consequences,” Gaffney v. Cummings, 412 U.S. 735,

753 (1973), and “in most cases will implicate a political

calculus in which various interests compete for

recognition.” Miller v. Johnson, 515 U.S. 900, 914

(1995).

Given the political nature of the redistricting

process, “the Framers’ decision to entrust districting

to political entities,” Rucho v. Common Cause, 139 S.

Ct. 2484, 2497 (2019), makes sense. “[A]s a Justice

with extensive experience in state and local politics”

noted, Id. at 2498, the courts are the wrong place to

resolve these types of highly political questions: “[t]o

turn these matters over to the federal judiciary is to

inject the courts into the most heated partisan issues.”

Davis, 478 U.S. at 145 (O’Conner, J., concurring in

judgment). “Legislators can be held accountable by

the people for the rules they write or fail to write[,] . .

. make policy and bring to bear the collective wisdom

of the whole people when they do, . . . enjoy far greater

resources for research and factfinding[,] . . . [and] must

compromise to achieve the broad social consensus

necessary to enact new laws . . . .” Democratic Nat’l

Comm.,141 S. Ct. at 29 (Gorsuch, J., concurring in

denial of application to vacate stay). State courts

generally cannot and do not. Given their institutional

25

competencies, the Framers’ decision to vest regulating

the time, place, and manner of federal elections in

legislatures, rather than state courts, makes

tremendous sense.

This does not mean that the Framers were

oblivious to the potential problems that might arise if

the legislatures engaging in redistricting. See Rucho,

139 S. Ct. at 2496 (“The Framers were aware of

electoral districting problems . . . .”).

As the Court has observed, “[p]olitical

gerrymanders are not new to the American scene. One

scholar traces them back to the Colony of

Pennsylvania at the beginning of the 18th century,

where several counties conspired to minimize the

political power of the city of Philadelphia by refusing

to allow it to merge or expand into surrounding

jurisdictions,

and

denying

it

additional

representatives.” Vieth, 541 U.S. at 274. For example,

in 1732 several officials reported that the Governor of

North Carolina “had proceeded to ‘divide old Precincts

established by Law, & to enact new Ones in Places’” in

order to either “‘endeavour by his means to get a

Majority of his creatures in the Lower House’ or to

disrupt the assembly’s proceedings.” Id. at 274

(quoting 3 Colonial Records of North Carolina 380-81

(W. Saunders ed. 1886)).

Likely aware of these potential issues (among

others), the Framers “considered what to do about”

districting concerns. Rucho, 139 S. Ct. at 2496.

Unlike today, the Framers were far more

comfortable with the idea that not every problem had

26

a judicial solution, and that certain constitutional

questions would be decided by the political branches

of government. As scholars have noted, “[a]t the time

of the Founding, the court litigation that we see today

concerning election design, such as redistricting, was

just not a thing.” Smith, Revisiting the History of the

Independent State Legislature Doctrine, 53 St. Mary’s

L.J. at 501-02 (2022).

This was in part because “[t]he notion that

judges could invalidate all governmental actions

inconsistent with their interpretation of the

constitution . . . would have been considered far

beyond the scope of legitimate judicial power.” Id. at

503 n. 253 (quoting G. Alan Tarr, Understanding

State Constitutions, at 72 (1998)); see also generally

Sylvia Snowiss, Judicial Review and the Law of the

Constitution, at 1 (1990) (Asserting that from

Independence through Federalist 78 “judicial

authority over unconstitutional acts was often

claimed, but its legitimacy was just as often denied.”).

Tellingly, even as the Court asserted “[i]t is

emphatically the province and duty of the judicial

department to say what the law is,” it recognized that

“[q]uestions, in their nature political, or which are, by

the constitution and laws, submitted to the executive,

can never be made in this Court.” Marbury v.

Madison, 5 U.S. 137, 170, 177 (1803).

In light of the institutional competencies, when

considering what to do about redistricting challenges,

the Framers looked to another political institution, the

national legislature, as the primary check on the state

legislatures. As the Court has noted, “[w]hether to

27

give that supervisory authority to the National

Government was debated at the Constitutional

Convention.” Rucho, 139 S. Ct. at 2495. “During the

subsequent fight for ratification, the provision

remained a subject of debate,” with Federalists

defending the Elections Clause in part on the grounds

that “the revisionary power was necessary to counter

state legislatures set on undermining fair

representation,

including

through

malapportionment.” Id. (citing M. Klarman, The

Framers’ Coup: The Making of the United States

Constitution, at 340-42 (2016)).

The result is that “[t]he Constitution has many

commands that are not enforceable by courts because

they clearly fall outside the conditions and purposes

that circumscribe judicial action” and instead “left the

performance of many duties in our governmental

scheme to depend on the fidelity of the executive and

legislative action and, ultimately, on the vigilance of

the people in exercising their political rights.”

Colegrove, 328 U.S. at 556. For example, the Court

has consistently held that the Guaranty Clause, which

formed the basis of many election challenges prior to

the mid-Twentieth Century, is non-justiciable. See,

e.g., Baker v. Carr, 369 U.S. 186, 218-26 (1962)

(describing the history of the non-justiciability of the

Guaranty Clause).

The reason is not that the

Guaranty Clause is unimportant.

Rather, it is

because “[u]nder this article of the Constitution it

rests with Congress to decide what government is the

established one in a State. . . . [T]he right to decide is

placed there, and not in the courts.” Luther v. Borden,

48 U.S. 1, 42 (1849).

28

With limited exceptions, such as challenges

under the Federal constitution such as “one man, one

vote” challenges, see Baker v. Carr, 369 U.S. 186

(1962), and challenges based on race, see Gomillion v.

Lightfoot, 364 U.S. 339 (1960), the Court has

recognized that redistricting presents political

questions that are properly resolved by the political

branches of government. See, e.g., Rucho, 139 S. Ct.

at 2495. Just as the federal courts “do[] not intervene”

when “the Constitution assigns a particular function

wholly and indivisibly to another department,” Baker,

369 U.S. at 246 (Douglas, J., concurring), the state

courts lack authority to intervene where there

Elections Clause has assigned determining the time,

place, and manner of elections to another department,

the state legislature.

The question in this case is “who decides?” Is it

the state legislature, or the state court that draws

legislative districts? The federal constitution assigns

this responsibility to the state legislature. It assigns

responsibility to the national legislature as a backstop

to prevent abuses. Through subsequent amendments,

it authorizes the federal courts to step in where there

are equal protection violations. What it does not do is

carve out a role for the state courts, particularly

where, as in this case, they are superseding the

determination of the legislature.

29

IV.

The Shift of Election Cases to Federal

Courts

Does

Not

Render

this

Interpretation Un-Originalist

Some have criticized an interpretation of the

Elections Clause that limits state court authority as

un-originalist based on the assertion that it “gives

near carte blanche to federal judges, when the key

point of Article II’s election language (and the

companion language of Article I) was to empower

states.” Vikram David Amar and Akhil Reed Amar,

Eradicating Bush-League Arguments Root and

Branch: The Article II Independent-State-Legislature

Notion and Related Rubbish, Supreme Court Review

(2022),

https://www.journals.uchicago.edu/doi/abs/10.1086/72

0128. This critique conflates the consequence of

comparatively recent developments in the Court’s

election jurisprudence with the original meaning of

the Elections Clause.

Century,

Prior

to

the

mid-Twentieth

substantive redistricting questions were generally

held to be nonjusticiable political questions. See

Colegrove v. Green, 328 U.S. 549 (1946). That began

to change by the early 1960s, as the Court began to

interpret post-ratification amendments, particularly

the Fourteenth Amendment, as creating a new

justiciable avenue for challenging redistricting

decisions. See, e.g., Gomillion v. Lightfoot, 364 U.S.

339 (1960) (holding that Petitioners stated a cause of

action under the Fourteenth and Fifteenth

Amendment to challenge local districting decisions);

Baker v. Carr, 369 U.S. 186 (1962) (holding that

30

districting decisions were justiciable under the

Fourteenth Amendment).

To the extent that the effect of a proper reading

of the Elections Clause is to place greater authority in

the hands of federal judges relative to state courts, it

is a consequence of the development of the Court’s

approach to election cases since at least the midtwentieth century. A proper reading of the Elections

Clause as an empowerment of state legislatures (but

not state courts) is fully consistent with the idea that

the Elections Clause was originally intended to bolster

states.

CONCLUSION

The Constitution clearly assigns state

legislatures authority and responsibility to regulate

the time, place, and manner of elections. In doing so,

it does not contemplate a role for the state courts.

Accordingly, the decision of the state court should be

vacated.

31

Respectfully submitted,

GARY M. LAWKOWSKI

Counsel of Record

Dhillon Law Group, Inc.

2121 Eisenhower Avenue,

Suite 402

Alexandria, VA 22314

703-965-0330

GLawkowski@DhillonLaw.com

MICHAEL BOOS

DANIEL H. JORJANI*

Citizens United

Citizens United Foundation

The Presidential Coalition

1006 Pennsylvania Avenue, S.E.

Washington, D.C. 20003

202-547-5420

MichaelBoos@CitizensUnited.org

DanielJorjani@CitizensUnited.org

*Application for Admission Pending

Counsel for amici curiae Citizens United, Citizens

United Foundation, and the Presidential Coalition

September 6, 2022