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

AMICUS CURIAE BRIEF OF THE

AMERICAN LEGISLATIVE EXCHANGE COUNCIL

IN SUPPORT OF PETITIONERS

Bartlett Cleland

AMERICAN LEGISLATIVE

EXCHANGE COUNCIL

2900 Crystal Drive,

6th Floor

Arlington, VA 22202

Lee E. Goodman

September 6, 2022

Counsel for Amicus Curiae

Counsel of Record

Jeremy J. Broggi

Christopher J. White

WILEY REIN LLP

2050 M Street NW

Washington, DC 20036

(202) 719-7000

LGoodman@wiley.law

-iTABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF ARGUMENT.....................................3

ARGUMENT ...............................................................6

I.

II.

The Federal Constitution Requires North

Carolina’s Legislature To Determine Its

Federal Congressional Districts. .....................6

A.

The Elections Clause Grants Districting

Authority

To

Each

State’s

“Legislature.” .........................................6

B.

The

North

Carolina

Legislature

Fulfilled Its Constitutional Role. ........11

C.

The North Carolina Supreme Court

Replaced The Legislature’s Districting

Maps With Its Own. ............................12

The Federal Constitution Prohibits State

Courts From Usurping State Legislatures. ...17

A.

State Courts May Not Use State

Constitutions To Override Legislative

Districting Authority. ..........................17

B.

In This Context, Federal Courts Must

Set Aside Strained State Court

Interpretations Of State Law. .............22

C.

There Is A Pressing Need For

Supervision. .........................................26

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

- ii TABLE OF CITED AUTHORITIES

Page(s)

Cases

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n,

576 U.S. 787 (2015) ............................2, 10, 20, 21

Arizona v. Inter-Tribal Council of Ariz.,

Inc.,

570 U.S. 1 (2013) ................................................. 6

Bush v. Gore,

531 U.S. 98 (2000) ......................................... 1, 22

Bush v. Palm Beach Cnty. Canvassing Bd.,

531 U.S. 70 (2000) ................................... 1, 19, 20

Chiafalo v. Washington,

140 S. Ct. 2316 (2020) ................................... 8, 20

Cook v. Gralike,

531 U.S. 510 (2001) ................................. 7, 20, 21

Dickson v. Rucho,

368 N.C. 481, 534 (2015) .................................. 24

DNC v. Wis. State Legislature,

141 S. Ct. 28 (2020)............................2, 18, 22, 26

League of United Latin Am. Citizens v.

Perry,

548 U.S. 399 (2006) ......................................... 8, 9

Leser v. Garnett,

258 U.S. 130 (1922) ........................................... 19

- iii -

McPherson v. Blacker,

146 U.S. 1 (1892) ......................................... 18, 19

Moore v. Harper,

142 S. Ct. 1089 (2022) ....................................... 25

In re Opinion of the Justices,

45 N.H. 595 (1864) ............................................ 19

Pa. Democratic Party v. Boockvar,

238 A.3d 345 (Pa. 2020) .................................... 27

Parrott v. Lamone,

No. C-02-CV-21-001773 (Md. Cir. Ct.

Mar. 25, 2022) ................................................... 28

In re Plurality Elections,

8 A. 881 (R.I. 1887) ........................................... 19

Republican Party of Pa. v. Boockvar,

141 S. Ct. 1 (2020)............................................... 2

Republican Party of Pa. v. Degraffenreid,

141 S. Ct. 732 (2021)................................... 18, 27

Reynolds v. Sims,

377 U.S. 533 (1964) ....................................... 3, 11

Rucho v. Common Cause,

139 S. Ct. 2484 (2019)

.................................... 3, 7, 8, 9, 10, 11, 17, 25, 29

Shaw v. Reno,

509 U.S. 630 (1993) ............................................. 7

Ex parte Siebold,

100 U.S. 371 (1879) ............................................. 7

- iv -

Szeliga v. Lamone,

No. C-02-CV-21-001816 (Md. Cir. Ct.

Mar. 25, 2022) ................................................... 28

Vieth v. Jubelirer,

541 U.S. 267 (2004) ............................. 8, 9, 10, 11

Wesberry v. Sanders,

376 U.S. 1 (1964) ................................................. 7

Constitutional Provisions

Colo. Const. art. V, §§ 44, 46.................................. 10

Fla. Const. art. III, § 20(a) ..................................... 10

Mich. Const. art. IV, § 6 ......................................... 10

Mo. Const. art. III, § 3............................................ 10

N.C. Const. art. I, § 10 ........................................... 23

N.C. Const. art. II, §§ 3, 5, 22 ................................ 23

U.S. Const. art. I, § 4, cl. 1 ............................... 1, 6, 8

U.S. Const. art. VI, cl. 2 ..................................... 8, 21

Statutes

52 U.S.C. §§ 10101–10702 ....................................... 7

52 U.S.C. §§ 20901–21145 ....................................... 7

-vOther Authorities

Expert Rep. of Dr. Michael Barber (filed in

appendix to Mot. Temp. Stay, Harper v.

Hall, 868 S.E.2d 95 (N.C. 2022) (Case

No. 413PA21)) ................................................... 14

The Federalist No. 78 (C. Rossiter ed. 1961)

(A. Hamilton) .................................................... 28

Richard L. Hasen, Polarization and the

Judiciary, 22 Annu. Rev. Political Sci.

261 (2019) .......................................................... 29

Thomas Rogers Hunter, The First

Gerrymander? Patrick Henry, James

Madison, James Monroe, and Virginia’s

1788 Congressional Districting, 9 Early

Am. Studies 781 (2011)....................................... 8

Zach Montellaro et al., Redistricting,

abortion supercharge state Supreme

Court races, Politico (Aug. 17, 2022),

https://www.politico.com/news/2022/08/1

7/state-supreme-court-elections00051412 ........................................................... 25

Michael T. Morley, The Independent State

Legislature Doctrine, Federal Elections,

and State Constitutions, 55 Ga. L. Rev.

1 (2021) ........................................................ 19, 21

- vi Nat’l Conf. State Legislatures, Free and

Equal Election Clauses in State

Constitutions (Nov. 4, 2019),

https://www.ncsl.org/research/redistricti

ng/free-equal-election-clauses-in-stateconstitutions.aspx ....................................... 26, 27

Nat’l Conf. State Legislatures, Redistricting

Criteria (July 16, 2021),

https://www.ncsl.org/research/redistricti

ng/redistricting-criteria.aspx ........................... 10

John V. Orth & Paul M. Newby, The North

Carolina Constitution (2d ed. 2013) ................. 23

Joseph Story, Commentaries on the

Constitution of the United States (1833) ........... 9

Lydia Wheeler et al., Abortion Ruling

Drives Competition to Control State

High Courts, Bloomberg Law (Aug. 25,

2022),

https://news.bloomberglaw.com/us-lawweek/state-high-court-races-mattermore-than-ever-in-post-roe-era ........................ 25

1

INTEREST OF AMICUS CURIAE1

The American Legislative Exchange Council

(“ALEC”) is America’s largest, non-partisan voluntary

membership organization of state legislators who are

dedicated to the principles of limited government, free

markets, and federalism. ALEC seeks to foster

respect for the role of state legislatures within our

constitutional system, ensure the legislative role is

respected by the judiciary, and preserve the

legislative power and prerogatives granted by the

United States Constitution.

ALEC and its members have a strong interest in

this case because Article I expressly provides that

rules for federal congressional elections are

established in each State by “the Legislature thereof.”

U.S. Const. art. I, § 4, cl. 1. The North Carolina

Supreme Court disregarded that clear command,

unconstitutionally substituting its own redistricting

preferences for the “the clearly expressed intent of the

legislature.” Bush v. Gore, 531 U.S. 98, 120 (2000)

(Rehnquist, C.J., concurring); see Bush v. Palm Beach

Cnty. Canvassing Bd., 531 U.S. 70, 76 (2000) (per

curiam) (vacating state court’s construction of rules

enacted by the state legislature for administration of

federal elections). That erroneous decision must be

reversed because a state constitutional provision

cannot withdraw or limit the Federal Constitution’s

No counsel for a party authored this brief in whole or in part,

and no person or entity other than ALEC or its counsel made a

monetary contribution intended to fund the preparation or

submission of this brief. All parties have filed blanket consents

to the filing of amicus curiae briefs.

1

2

express grant of authority to state legislatures. See

Ariz. State Legislature v. Ariz. Indep. Redistricting

Comm’n (“AIRC”), 576 U.S. 787, 827 (2015) (Roberts,

C.J., dissenting) (“In a conflict between the Arizona

Constitution and the Elections Clause, the State

Constitution must give way.”). And even if that were

possible, none of the state constitutional provisions at

issue in this case even purports to do so.

If the North Carolina decision is permitted to

stand, state courts will usurp the prerogatives of state

legislatures. “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.”

DNC v. Wis. State Legislature, 141 S. Ct. 28, 29

(2020) (Gorsuch, J., concurring). That assignment

has salutary effects, keeping certain nonjusticiable

questions principally within the political branches

best equipped to resolve them. But this constitutional

arrangement “would be meaningless if a state court

could override the rules adopted by the 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 Pa. v.

Boockvar, 141 S. Ct. 1, 2 (2020) (statement of

Alito, J.).

That risk is real. Already, some results-oriented

state court judges are manipulating similarly

indefinite state constitutional provisions to thwart

the Framers’ design and take policymaking in the

federal election sphere away from legislatures. But

judicial decisions about redistricting are just as

3

capable of achieving partisan ends when they are

unmoored from constitutional restraints. They are

not necessarily more virtuous or sound, they just

substitute the preferences of a different branch of

state government. Policymaking by judges disguised

as constitutional interpretation threatens public trust

in the judiciary and disserves the fundamental

principle that districting decisions are “primarily a

matter

for

legislative

consideration

and

determination.” Reynolds v. Sims, 377 U.S. 533, 586

(1964); see Rucho v. Common Cause, 139 S. Ct. 2484,

2495–96 (2019).

The judicial activism in North Carolina is

representative of activist litigation strategies afoot in

many states, most undertaken by partisan litigants

(Republicans and Democrats) seeking advantage in

federal elections through judicial decree. Unless

stopped by this Court, the North Carolina decision

will embolden activists and spawn imitation. The

potential result is widespread usurpation of one of the

most significant responsibilities expressly assigned to

state legislatures by the Federal Constitution. To

borrow a local colloquialism, ALEC and its members

urge this Court “to nip it in the bud!” The Andy

Griffith Show: One Punch Opie (CBS television

broadcast Dec. 31, 1962).

SUMMARY OF ARGUMENT

The Federal Constitution assigns responsibility

for determining federal congressional districts “to the

state legislatures, expressly checked and balanced by

the Federal Congress.” Rucho, 139 S. Ct. at 2496.

Through the Elections Clause, the Framers codified

4

their judgment that state legislatures and Congress

are best equipped to weigh, balance, and compromise

a host of traditional districting criteria. That this

process

would

entail

political

and

policy

considerations was well understood by the Framers

and they assigned the responsibility, appropriately, to

a political branch.

Acting pursuant to its constitutionally delegated

authority, the North Carolina General Assembly

enacted the redistricting maps at issue in this case.

The North Carolina Supreme Court held that those

maps constituted “partisan gerrymanders” and, in the

first such application of that State’s “free elections”

clause, ruled that the congressional plan violated the

North Carolina Constitution.

To remedy the

supposed constitutional violation, the court

substituted its own judicially drawn congressional

districts and ordered the 2022 congressional elections

to be held under its maps.

The Federal Constitution prohibits state court

usurpation of the legislature’s authority. Because the

Federal Constitution, not the North Carolina

Constitution, grants the General Assembly authority

to regulate federal elections subject to Congress’s

check, only the Federal Constitution or Congress can

remove or limit that authority. And because there is

no allegation in this case that the General Assembly’s

maps violated either the Federal Constitution or an

act of Congress, the decision of the North Carolina

Supreme Court must be reversed.

The decision also must be reversed because it is

wrong. None of the state constitutional provisions the

5

North Carolina Supreme Court cited says anything

about partisan considerations in redistricting, and

only one mentions elections at all. The state court’s

decision to read an atextual limitation into the state

constitution departed from two-and-a-half centuries

of practice in which the North Carolina courts had

never found a partisan gerrymandering claim

justiciable. Because the North Carolina Supreme

Court’s strained judicial interpretation countermands

the clearly expressed intent of the state legislature,

the court’s construction of the state constitution

presents a federal question for this Court’s resolution.

The need for resolution is underscored by decisions

in other states. In Pennsylvania, Maryland, and

elsewhere, state courts have abused similarly vague

state constitutional provisions to override specific

federal elections regulations established by the

legislature. And there is a significant risk that

number could grow because more than thirty states

have “free elections” clauses that activists are casting

as newfound fonts of judicial power to regulate federal

elections unmoored from constitutional text,

structure, history, and tradition.

The Federal

Constitution prohibits that result, and this Court

should so hold.

6

ARGUMENT

I. The Federal Constitution Requires North

Carolina’s Legislature To Determine Its Federal

Congressional Districts.

A. The Elections Clause Grants Districting

Authority To Each State’s “Legislature.”

Article I of the U.S. Constitution grants state

legislatures districting authority. The Elections

Clause provides:

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.

As relevant here, the Elections Clause has two

functions. First, the Clause imposes “the duty” on

States “to provide for the election of representatives

to the Federal Congress.” Arizona v. Inter-Tribal

Council of Ariz., Inc., 570 U.S. 1, 8 (2013). That

requires, among other things, that States define

congressional districts corresponding to the number

of federal representatives they are apportioned.

Second, the Elections Clause specifies that the

entity within each State responsible for this

important task is “the Legislature thereof.” The

Framers knew the districting power for the new

7

federal offices they created must lie somewhere. After

some debate, “[t]hey settled on a characteristic

approach, assigning the issue to the state

legislatures, expressly checked and balanced by the

Federal Congress.” Rucho, 139 S. Ct. at 2496.

The authority to establish federal congressional

districts is thus not a typical state legislative power

exercised pursuant to a grant of authority under a

state constitution. Rather, this Court has recognized

that when a state legislature enacts a statute

regulating the time, place, and manner of an election,

it acts by virtue of an “exclusive delegation of power

under the Elections Clause.” Cook v. Gralike, 531

U.S. 510, 523 (2001); see also Ex parte Siebold, 100

U.S. 371, 383 (1879) (explaining “the power of

Congress, as well as that of the State legislatures, to

regulate the election of senators and representatives

arises” from the Elections Clause). That delegation is

subject to restraint by the Federal Constitution or, as

stated in the Elections Clause itself, by an act of

Congress that makes or alters an election rule.2

As recently as two years ago this Court confirmed,

in the context of the Constitution’s assignment of

This Court has identified two federal constitutional restraints

on districting authority: “one-person, one-vote and racial

gerrymandering.” Rucho, 139 S. Ct. at 2495; see Wesberry v.

Sanders, 376 U.S. 1 (1964); Shaw v. Reno, 509 U.S. 630 (1993).

Perhaps the most well-known congressional restraints are the

Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (1965)

(codified 52 U.S.C. §§ 10101–10702), and the Help America Vote

Act, Pub. L. No. 107-252, 116 Stat. 1666 (2002) (codified 52

U.S.C. §§ 20901–21145). None of these is at issue in, or would

be affected by, this case.

2

8

authority to state legislatures to appoint presidential

electors, that such assignment “convey[s] the

broadest power of determination” to the legislature

subject only to another constraint expressed in the

Federal Constitution. Chiafalo v. Washington, 140 S.

Ct. 2316, 2324 (2020). The Court further observed

that states cannot impose other conditions on the

legislature’s appointments that would conflict with

the Federal Constitution. Id. at 2324 n.4.

The reasons the Framers assigned primary

authority for setting the rules governing federal

elections to state legislatures are well known.

Foremost, the selection of legislative institutions

reflects the Framers’ “preference for the democratic

process” in regulating elections. League of United

Latin Am. Citizens v. Perry, 548 U.S. 399, 416 (2006)

(opinion of Kennedy, J.). In the Elections Clause and

elsewhere, the Framers provided that federal

elections would be principally regulated by “the

political branches.” Rucho, 139 S. Ct. at 2506; see

U.S. Const. art. I, § 4, cl. 1; art. II, § 1, cl. 2.

The Framers made this choice notwithstanding

their familiarity with districting problems. During

the colonial period, as afterwards, the political

gerrymander was “alive and well.” Vieth v. Jubelirer,

541 U.S. 267, 274 (2004) (plurality). To take one

prominent example, Thomas Jefferson, among others,

accused Patrick Henry of attempting to gerrymander

James Madison out of the First Congress. Thomas

Rogers Hunter, The First Gerrymander? Patrick

Henry, James Madison, James Monroe, and

Virginia’s 1788 Congressional Districting, 9 Early

Am. Studies 781 (2011).

9

The Elections Clause was the Framers’ solution to

these problems. By “leaving in state legislatures the

initial power to draw districts for federal elections”

while permitting “Congress to ‘make or alter’ those

districts if it wished,” Vieth, 541 U.S. at 275, the

Framers ensured democratic accountability.

Nor did the Framers contemplate a role for judges.

During ratification, “many objected” to “congressional

oversight” of state legislatures. Ibid.; see 2 Joseph

Story, Commentaries on the Constitution of the

United States 280 (1833) (“the superintending power

of congress” was “assailed by the opponents of the

constitution, both in and out of the state conventions,

with uncommon zeal and virulence”). But there is no

evidence that anyone suggested the judiciary should

draw congressional districts. “Nor was there any

indication that the Framers had ever heard of courts

doing such a thing.” Rucho, 139 S. Ct. at 2496.

In addition to ensuring democratic accountability,

the Elections Clause recognizes a state “legislature’s

expertise.” League of United Latin Am. Citizens, 548

U.S. at 415. The Framers understood that state

legislatures are the body best equipped to adapt

districting decisions “to the peculiar local, or political

convenience of the states.” 2 Story, supra, at 287.

That is because congressional district drawing is

essentially public policy and, like all policymaking,

involves a complex mix of competing considerations.

In many states, legislatures adopt principles, or

10

criteria, that guide their decision making.3

Traditional criteria include compactness, contiguity,

preservation of communities of interest, preservation

of cores of prior districts, and avoiding pairing

incumbents. See Nat’l Conf. State Legislatures,

Redistricting

Criteria

(July

16,

2021),

https://www.ncsl.org/research/redistricting/redistricti

ng-criteria.aspx. In addition to these (and other)

traditional criteria, some legislatures choose to

prohibit use of certain information, including

partisan data. Ibid.

Balancing these factors is often more art than

science, and “political considerations will likely play

an important, and proper, role in the drawing of

district boundaries.” Vieth, 541 U.S. at 299 (citation

omitted). State legislatures are equipped for this task

because “politicians, unlike nonpartisan observers,

normally understand how ‘the location and shape of

districts’ determine ‘the political complexion of the

area.’” Id. at 358 (Breyer, J., dissenting) (quoting

As the Court recently observed in Rucho, some states have

moved to limit partisan considerations in districting decisions.

139 S.Ct. at 2507–08. Such limitations might be judicially

enforceable consistent with the Elections Clause if imposed by a

legislature upon itself. Compare Colo. Const. art. V, §§ 44, 46

(amended upon state legislature initiation) with Mo. Const. art.

III, § 3 (amended in 2018 by citizen petition; amended in 2020

upon state legislature initiation); Fla. Const. art. III, § 20(a)

(amended by citizen petition); Mich. Const. art. IV, § 6 (same).

But limitations cannot be conjured or imposed, in the first

instance, by non-legislative institutions such as state courts.

“The States do not . . . ‘retain autonomy to establish their own

governmental processes’ if those ‘processes’ violate the United

States Constitution.” AIRC, 576 U.S. at 827 (Roberts, C.J.,

dissenting).

3

11

Gaffney v. Cummings, 412 U.S. 735, 753 (1973)).

Furthermore, “[i]t is precisely because politicians are

best able to predict the effects of boundary changes

that the districts they design usually make some

political sense.” Ibid.

In sum, the Federal Constitution recognizes

districting decisions are “primarily a matter for

legislative

consideration

and

determination.”

Reynolds, 377 U.S. at 586; see Rucho, 139 S. Ct. at

2495–96. And because the Federal Constitution

assigns principal responsibility to state legislatures,

judicial relief becomes appropriate only when a

legislature fails to comply with federal constitutional

or statutory restraints.

B. The North Carolina Legislature Fulfilled Its

Constitutional Role.

Acting pursuant to its authority under the

Elections Clause, the North Carolina General

Assembly undertook a public redistricting process in

response to reapportionment based on the 2020

decennial census.

The start of the process was delayed by the

COVID-19 pandemic. While the General Assembly

waited on the U.S. Census Bureau to provide the new

population data, the Joint Redistricting Committee

met and agreed to certain criteria to guide the

redistricting process.

These included many

traditional criteria, and prohibited use of racial data,

partisan considerations, and election results data.

App. to Application for Stay 317a–18a (“App.”).

12

When the redistricting process began, the Joint

Redistricting Committee held public hearings in each

of North Carolina’s thirteen existing congressional

districts. App. 319a. To “instill public confidence” as

it developed the new district maps, the General

Assembly “requir[ed] legislators to draw and submit

maps using software on computer terminals in the

redistricting committee hearing rooms.” App. 322a.

These stations were “open during normal business

hours, and both the rooms and the screens of the

station computers [were] live streamed while the

stations were open.” App. 322a.

Following this process, the General Assembly

enacted its new maps on November 4, 2021. App.

326a. The maps were promptly challenged in state

court as violative of the North Carolina Constitution,

with plaintiffs alleging that the maps were

predominantly based on partisan considerations.

C. The North Carolina Supreme Court Replaced

The Legislature’s Districting Maps With Its

Own.

The maps were initially upheld. A three-judge

panel of the Superior Court held that the North

Carolina Constitution does not prohibit partisan

gerrymandering, App.523a–540a, and, further, that

partisan gerrymandering claims are nonjusticiable in

North Carolina, App. 540a–47a.

In a four-to-three decision, the North Carolina

Supreme Court reversed. Rejecting nearly 250 years

of redistricting practice, the four Justice majority held

that “partisan gerrymandering claims are justiciable

13

under the North Carolina Constitution.” App. 83a.

Next, the court held that the maps “constitute[d]

partisan gerrymanders” and thus violated “the North

Carolina Constitution’s Declaration of Rights.” App.

147a.

Three Justices dissented. They explained the

majority’s analysis was “unguided by the

constitutional text” and its “time-honored meaning,”

App. 170a, and that “none of the constitutional

provisions” relied upon by the majority purport to

address let alone “prohibit the practice of partisan

gerrymandering,” App. 235a.

With respect to

justiciability, the dissenting Justices held that the

North Carolina Constitution provides “no judicially

discernible manageable standard,” App. 191a, and

makes clear that concern about partisan

gerrymandering “is textually committed to the

General Assembly” and not the courts, App. 192a.

The state Supreme Court’s establishment of a new

constitutional right naturally begged novel

definitional and methodological questions regarding

its contours. Yet the court declined to prescribe

specific instructions for achieving “partisan fairness.”

App. 136a. The court ruled that it did not “believe it

prudent or necessary” to identify a particular

standard to “conclusively demonstrate or disprove the

existence

of

an

unconstitutional

partisan

gerrymander.” App. 134a–35a.

Instead, the court recommended a list of four

mathematical tests, apparently drawn from political

science literature, that “may be useful” to future map

drawers and courts: (i) an “efficiency gap” of 7% or

14

less; (ii) a “mean-median” metric of 1% or less; (iii) a

“partisan symmetry” test with no objective metric;

and (iv) a similarly subjective “close votes, close seats”

analysis. App. 137a–38a; see App. 135a.

On remand, the General Assembly undertook the

task of drawing new districts for its state house, state

senate, and its congressional seats utilizing the state

Supreme Court’s two objective mathematical tests—

the “efficiency gap” and “mean-median” tests. As set

forth in the legislators’ briefs and expert reports

before the state courts, the legislature used a uniform

set of historical election data and a widely accepted

districting software program called “Maptitude,”

combined with traditional districting criteria such as

geography, to draw and analyze its maps for all three

districting plans. Utilizing that uniform method, the

legislature drew three districting plans that its expert

concluded met the court’s mathematical goals. Expert

Rep. of Dr. Michael Barber, at 6 (filed in appendix to

Mot. Temp. Stay, Harper v. Hall, 868 S.E.2d 95 (N.C.

2022) (Case No. 413PA21)).

According to the

legislature’s policy expert, the re-drawn congressional

districts scored 0.61% under the mean-median test

and 5.3% under the efficiency gap test—both well

within the thresholds approved by the state Supreme

Court. Ibid.

These districting plans were then submitted to the

Superior Court for judgment.

Recognizing the

limitations of its own expertise in the mathematical

and policy complexities, the Superior Court appointed

three retired judges to serve as “special masters” and

authorized them, in turn, to employ the services of

four political scientists to analyze the legislature’s

15

districting plans and prepare a report to the Superior

Court. See App. 268a.

This is where, as a matter of process, the court’s

displacement of the legislature truly manifested.

According to a motion filed by the legislators, two of

the court-appointed political scientists engaged in ex

parte substantive communications with the plaintiffs’

experts. The Superior Court denied the legislators’

motion to disqualify the two court-appointed experts

and, moreover, forbade the legislature from filing

objections or exceptions to the report of the special

masters before the Superior Court made its own

determination. App. 276a–77a; see App. 268a–69a.

Curiously, although the legislature had applied

uniform data, software and methods, the special

masters’ report accepted the legislature’s districting

plans for the state house and state senate but rejected

the legislature’s plan for federal congressional seats.

App. 270a–71a. The explanation the special masters’

report provided for these conflicting “findings” was

conclusory and cursory:

“Unlike the proposed

remedial [state] House and Senate plans, there is

substantial evidence from findings of the advisors

[i.e., the political science experts] that the proposed

congressional plan has an efficiency gap above 7% and

a mean-median difference of greater than 1%.” App.

271a. But nowhere did the special masters’ report

elaborate its precise metrics, methodology, the

software system used, or even the universe of election

data the court-appointed experts utilized to come to

this conclusion.

There was no opportunity for

discovery or cross-examination. Thus, the legislature,

and the public, were left completely in the dark about

16

the experts’

conclusions.

inputs and specific mathematical

The Superior Court merely accepted the special

masters’ report as conclusive and attached it to its

final order. The Superior Court concluded that the

legislature’s congressional districting plan was

unconstitutional and cited as support solely the

special masters’ report findings. App. 253a–55a,

262a–63a. The Superior Court adopted the special

masters’ proposed replacement congressional map.

App. 266a.

The North Carolina Supreme Court denied the

legislators’ motion to stay implementation of the

Superior Court’s districting plan, effectively ordering

the 2022 congressional elections to proceed under the

Superior Court’s map. App. 2a.

Eventually, the legislators were able to discern,

through inferences and reverse engineering, apparent

differences in the data sets and software utilized by

the court-appointed experts as well as apparent flaws

in the experts’ methodology which the legislators

detailed in subsequent briefs to the North Carolina

Supreme Court. Legis. Defs.-Appellants’ Br., at 22–

31, Harper v. Hall, 380 N.C. 317 (2022) (Case No.

2022-NCSC-17). However, by this time the die was

cast. Without delving more deeply into the inputs and

methods utilized by the lower court’s appointed

experts, the state Supreme Court deferred to the

“factual findings” of the Superior Court (i.e., the

findings of the special masters and their experts) and

adopted the Superior Court’s map for the upcoming

congressional districts. See App. 2a; App. 266a.

17

The upshot is that a federal election will be held in

North Carolina this year according to the opaque

policy preferences of four political scientists,

concocted outside the view of the public, rather than

the North Carolina legislature. That constitutes

usurpation.

II. The Federal Constitution Prohibits State Courts

From Usurping State Legislatures.

A. State Courts May Not Use State Constitutions

To Override Legislative Districting Authority.

Because the Federal Constitution, not the North

Carolina Constitution, grants the General Assembly

authority over federal elections, only the Federal

Constitution can remove or limit that authority. The

authority conferred by the Elections Clause cannot be

countermanded by a state constitution. Therefore, in

holding that the North Carolina Constitution

prohibited the General Assembly’s congressional

maps, the North Carolina Supreme Court violated the

Federal Constitution.

The rule could not be otherwise. The Elections

Clause assigns districting authority “to the state

legislatures, expressly checked and balanced by the

Federal Congress.” Rucho, 139 S. Ct. at 2496; see

section I.A, supra. And there is no allegation here

that the districts drawn by the General Assembly

violate any statute of Congress or any provision of the

Federal Constitution.

Those facts compel the conclusion that the General

Assembly’s maps are valid notwithstanding the

contrary rulings of the North Carolina Supreme

18

Court. “[I]f a state court could override the rules

adopted by the legislature simply by claiming that a

state constitutional provision gave the courts

authority to make whatever rules it thought

appropriate for the conduct of a fair election,” then

“the authority to make rules governing federal

elections” under the Elections Clause “would be

meaningless.”

Republican Party of Pa. v.

Degraffenreid, 141 S. Ct. 732 (2021) (Alito, J.,

dissenting from denial of certiorari) (quoting

Boockvar, 141 S. Ct. at 2 (statement of Alito, J.)).

“[U]nder the U.S. Constitution, the state courts do not

have a blank check to rewrite state elections laws for

federal elections.” DNC, 141 S. Ct. at 34 n.1

(Kavanaugh, J., concurring in the denial of

application to vacate stay).

The principle that a State cannot countermand a

direct grant of authority under the Federal

Constitution was affirmed by this Court long ago. In

McPherson v. Blacker, 146 U.S. 1 (1892), the Court

upheld a Michigan statute providing for the

appointment of presidential electors by congressional

district. Construing the Electors Clause of Article II,

the Court held that because the clause granted

appointment power to “the legislature” it “operat[ed]

as a limitation upon the State in respect of any

attempt to circumscribe the legislative power.” Id. at

25.

Underscoring the point, the Court quoted

approvingly from a report of Congress declaring that

because the appointment “power is conferred upon

the legislatures of the states by the [C]onstitution of

the United States” it “cannot be taken from them or

modified by their state constitutions.” Id. at 35

19

(citation omitted).4 See also Leser v. Garnett, 258

U.S. 130, 137 (1922) (holding state legislatures’

ratification of the Nineteenth Amendment valid

because Article V of the Federal Constitution commits

ratification to “the Legislatures” and thus

“transcends any limitations sought to be imposed by

the people of a state” through their state

constitutions).

This Court applied the same principle to a state

court during the contested 2000 presidential election.

There, amidst recount litigation, the Florida Supreme

Court “construed the Florida Election Code without

regard to the extent to which the Florida Constitution

could, consistent with Art. II, § 1, cl. 2, ‘circumscribe

the legislative power.’” Palm Beach Cnty. Canvassing

Bd., 531 U.S. at 77 (quoting McPherson, 146 U.S. at

25) In a unanimous decision, this Court vacated that

judgment because the Florida legislature was “not

acting solely under the authority given it by the

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

Nineteenth-century state court decisions agree. See, e.g., In re

Plurality Elections, 8 A. 881 (R.I. 1887) (holding state

4

constitution could not “impose a restraint upon the power of

prescribing the manner of holding [federal] elections which is

given to the legislature by the constitution of the United States”);

In re Opinion of the Justices, 45 N.H. 595, 596, 599 (1864)

(holding the election of members of Congress “is governed wholly

by the Constitution of the United States as the paramount law,

and the Constitution of this State has no concern with the

question”). According to a scholarly review, state courts of the

era “generally enforced state laws governing congressional

elections, even when they violated state constitutional

provisions.”

Michael T. Morley, The Independent State

Legislature Doctrine, Federal Elections,

Constitutions, 55 Ga. L. Rev. 1, 38 (2021).

and

State

20

authority made under Art. II, § 1, cl. 2, of the United

States Constitution.” Ibid.

Respondents’ rejection of these precedents is based

upon their mistaken understanding of the word

“Legislature.” According to Respondents, a “state

legislature” is “an entity created and constrained by

its state constitution.” Br. Opp’n Common Cause 17

(citation omitted). And while it is true that state

constitutions may limit the power that they confer

upon state legislatures, that observation is inapposite

because federal districting authority is an “exclusive

delegation of power under the Elections Clause” not a

power that originates in a state’s constitution. Cook,

531 U.S. at 523. As this Court has held, the power to

regulate federal elections “‘had to be delegated to,

rather than reserved by, the States’” because “[t]he

federal offices at stake ‘arise from the Constitution

itself.’” Id. at 522 (quoting U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779, 805 (1995)); accord Chiafalo,

140 S. Ct. at 2324 n.5. Federal districting authority

stems from the Federal Constitution, and state

constitutions cannot limit power they did not convey.

This Court’s decision in Arizona State Legislature

v. AIRC, 576 U.S. 787 (2015), is not to the contrary.

There, the issue was how to define “the Legislature.”

A majority held that “the people” may “serv[e] as the

legislative power for redistricting purposes” by

transferring districting authority away from the

institutional

legislature

to

an

independent

redistricting commission. Id. at 824. As the four

dissenting Justices explained, however, “the

Legislature” does not mean “the people” and, “[i]n a

conflict between the [State] Constitution and the

21

Elections Clause, the State Constitution must give

way.” Id. at 827 (Roberts, C.J., dissenting) (citing

U.S. Const. art. VI, cl. 2; Cook, 531 U.S. at 523).

Whether or not the case was correctly decided, all

nine Justices agreed that congressional districting is

the province of the state legislature.

Furthermore, AIRC did not sanction substantive

limitations on the legislative power. The state

constitutional amendment at issue in that case

“remove[d] congressional redistricting authority from

the state legislature, lodging that authority, instead,

in a new entity, the AIRC.” 576 U.S. at 796–97. The

amendment imposed no substantive limitations on

the power of the legislature to determine its own

districting criteria under the Elections Clause, or on

how the legislature’s delegated authority would be

exercised by the AIRC. Thus, the decision provides no

support for Respondents’ position that state courts

can interpret state constitutions to impose

substantive restrictions on the authority granted by

the Elections Clause. See also Morley, supra, 55 Ga.

L. Rev. at 91–92.

The bottom line is simple.

The Federal

Constitution grants districting authority to state

legislatures, subject to restraints imposed by

Congress and the Federal Constitution itself.

Because the North Carolina Constitution cannot limit

what it did not confer, North Carolina state courts

may not use state constitutional provisions to

override the General Assembly’s districting plan.

22

B. In This Context, Federal Courts Must Set

Aside Strained State Court Interpretations Of

State Law.

At the very least, the text of the Elections Clause

means that “the clearly expressed intent of the

legislature must prevail” over a strained judicial

interpretation of a state statute or constitutional

provision. Bush, 531 U.S. at 120 (Rehnquist, C.J.,

concurring). The important federal judicial role in

reviewing state court decisions about state law in

federal elections “does not imply a disrespect for state

courts but rather a respect for the constitutionally

prescribed role of state legislatures.” Id. at 115; see

DNC, 141 S. Ct. at 34 n.1 (Kavanaugh, J., concurring).

That role requires reversal in this case. The intent

of the General Assembly could not be clearer. It twice

adopted new congressional districting maps that

realigned North Carolina’s congressional districts to

reflect the additional seat gained after the 2020

census. There was no ambiguity in those maps, so

this is not a case where the legislatures’ handiwork

“may well admit of more than one interpretation.”

Bush, 531 U.S. at 135 (Ginsburg, J., dissenting)

(citation omitted). Nor is this a case involving a

federal statutory or federal constitutional limitation

that may validly limit a state legislature’s

redistricting plan.

Instead, the North Carolina Supreme Court based

its decision upon a plainly erroneous construction of

the North Carolina Constitution. The North Carolina

Constitution explicitly prescribes certain criteria for

state legislative districting, but is consciously silent

23

on federal districting criteria, and it even denies the

executive branch a veto power over the legislature’s

plans. N.C. Const. art. II, §§ 3, 5, 22.5 That text and

structure, combined with centuries of redistricting

experience, and dozens of amendments that have not

affected congressional redistricting, serves as

compelling evidence that the state constitution does

not limit the legislature’s decision making.

In the face of that evidence, however, the North

Carolina Supreme Court turned to “the North

Carolina Constitution’ s Declaration of Rights.” App.

147a. The most relevant provision in that declaration

states only that “[a]ll elections shall be free.” N.C.

Const. art. I, § 10. The meaning of that clause, as

Justice Newby persuasively explained, is to protect

voters from “a fraudulent vote count” and to

guarantee their right to “vot[e] according to one’s

judgment.” App. 226a; see also John V. Orth & Paul

M. Newby, The North Carolina Constitution 55–57

(2d ed. 2013) (“The meaning is plain: free from

interference or intimidation.”). In nearly 250 years,

the North Carolina courts had never adopted the view

that the clause prohibits partisan considerations in

The only reference in the North Carolina Constitution to the

legislature’s adoption of congressional districting plans is a

procedural reference that the legislation “shall be read three

times in each house before it becomes law and shall be signed by

the presiding officers of both houses.” N.C. Const. art. II, § 22(5).

5

24

drawing state or federal legislative districts. App.

226a.6

Indeed, the majority acknowledged that, as

recently as 2015, the North Carolina Supreme Court

had held that “a partisan gerrymandering challenge”

failed because it was “not based upon a justiciable

standard.” App. 113a (quoting Dickson v. Rucho, 368

N.C. 481, 534 (2015), vacated on other grounds,

Rucho, 139 S. Ct. 2484). In that case, districting

decisions had been challenged under the similarly

general “Good of the Whole” clause. Dickson, 368

N.C. at 534. Nevertheless, in this case, the majority

abruptly changed course, asserting that the North

Carolina Constitution is difficult to amend and that

“the only way that partisan gerrymandering can be

addressed is through the courts.” App. 35a.7 This

Court should see that reasoning for what it is: a

majority of the North Carolina Supreme Court

amending the state constitution through novel

interpretation.

The majority dismissed the historical record out of hand,

falsely claiming that adherence to the original meaning of the

free elections clause “compels the conclusion that there is no

constitutional bar to denying the right to vote to women and

black people.” App. 142a. This pejorative rhetoric is, of course,

substantively unfounded as both the United States Constitution

and the North Carolina Constitution were amended to prohibit

abridgment of the right to vote based upon sex or race.

6

In fact, the current North Carolina Constitution has been

amended 42 times. N.C. Legis. Libr., Amendments to the North

Carolina

Constitution

of

1971

(Jan.

26,

2020),

https://sites.ncleg.gov/library/wp-content/uploads/sites/5/2020/0

1/NCConstAmendsince1971.pdf.

7

25

Adding insult to constitutional injury, after twice

rejecting the General Assembly’s maps the Supreme

Court ordered the election to go forward under maps

created by the North Carolina courts. App. 2a. But

unlike remedial maps that courts may validly develop

under the objective standards set forth in the Voting

Rights Act, or through enforcement of the Federal

Constitution’s “one-person, one-vote rule [which] is

relatively easy to administer as a matter of math,”

Rucho, 139 S. Ct. at 2501, there is “no objective

measure for assessing whether a districting map

treats a political party fairly,” ibid.; see also App.

188a–91a. In insisting the otherwise, the state court

usurped the policymaking role and “indefinitely

retains the redistricting authority, thereby enforcing

its policy preferences.” App. 171a.8

The dissent recognized this as “judicial activism.”

App. 170a, 207a; accord Moore, 142 S. Ct. at 1091

(Alito, J., dissenting from the denial of application for

stay) (“These explanations have the hallmarks of

legislation.”).

By inserting “a political fairness

This usurpation by the North Carolina judiciary is especially

egregious given that judges in North Carolina, just like members

of the General Assembly, are elected on a partisan ticket. Media

reports indicate that the decision below has “driven spending in

judicial races” in North Carolina. Lydia Wheeler et al., Abortion

Ruling Drives Competition to Control State High Courts,

Bloomberg

Law

(Aug.

25,

2022),

https://news.bloomberglaw.com/us-law-week/state-high-courtraces-matter-more-than-ever-in-post-roe-era; see also Zach

Montellaro et al., Redistricting, abortion supercharge state

Supreme

Court

races,

Politico

(Aug.

17,

2022),

https://www.politico.com/news/2022/08/17/state-supreme-courtelections-00051412.

8

26

requirement in the constitution without explicit

direction from the text” a majority of the court

“seize[d] [an] opportunity to advance its agenda” at

the expense of the state legislature’s constitutionally

granted authority. App. 206a–07a.

The United States Constitution guards against

this untoward result by “requir[ing] federal courts to

ensure that state courts do not rewrite state election

laws.” DNC, 141 S. Ct. at 34 n.1 (Kavanaugh, J.,

concurring). At a minimum, that duty requires

federal courts to set aside under the Elections Clause

strained state court interpretations of state law that

countermand the clearly expressed intent of the state

legislature.

C. There Is A Pressing Need For Supervision.

Sadly, the judicial activism on display in North

Carolina is not unique. With increasing frequency,

results-oriented state court judges are arrogating to

themselves power to regulate federal elections.

These efforts typically proceed by locating vague

phrases in state constitutions and manipulating them

to override specific federal elections regulations

established by the state legislature, as happened

below. Activists—most of them partisan litigants

seeking partisan electoral advantages—have zeroed

in on “free elections” clauses in part because they are

common. Thirty states have constitutional provisions

declaring that elections shall be “free.” See Nat’l

Conf. State Legislatures, Free and Equal Election

Clauses in State Constitutions (Nov. 4, 2019),

https://www.ncsl.org/research/redistricting/free-

27

equal-election-clauses-in-state-constitutions.aspx.

Eighteen of these states further require that elections

be “equal” or “open.” Ibid. When these general

admonitions are reimagined by judges unconstrained

by constitutional text, structure, history, and

tradition, they become newfound fonts of judicial

policymaking power.

Pennsylvania provides a prime example. There,

the state legislature enacted a statute providing that

“a completed mail-in ballot must be received in the

office of the county board of elections no later than

eight o’clock P.M. on the day of the primary or

election.” Pa. Democratic Party v. Boockvar, 238 A.3d

345, 369 (Pa. 2020) (quoting 25 Pa.C.S. § 3511), cert.

denied sub nom. Republican Party of Pa. v.

Degraffenreid, 141 S. Ct. 732 (2021). While admitting

that this statute contained “no ambiguity,” ibid., the

state court determined that the State’s “Free and

Equal Elections Clause” permitted it to “extend the

received-by deadline for mail-in ballots to prevent the

disenfranchisement of voters” who mailed their

ballots too late, id. at 371. See also Degraffenreid, 141

S. Ct. at 733 (Thomas, J., dissenting from denial of

certiorari) (“The Pennsylvania Supreme Court

agreed” that it “could extend the deadline through a

vague

clause

in

the

State

Constitution

providing . . . that ‘elections shall be free and equal.’”

(brackets omitted)).

The Maryland courts have engaged in similar

policymaking in the federal redistricting context.

Although “[t]here are no provisions in the Maryland

Constitution explicitly addressing Congressional

districting,” Szeliga v. Lamone, No. C-02-CV-21-

28

001816, slip op. at 9, (Md. Cir. Ct. Mar. 25, 2022),

Maryland courts have held that the state

constitution’s declaration that elections “ought to be

free and frequent” permits courts to override partisan

gerrymanders, id. at 24 (quoting Md. Const. art. VII);

see also Parrott v. Lamone, No. C-02-CV-21-001773

(Md. Cir. Ct. Mar. 25, 2022).

Partisan litigants in other States are pushing

similar theories. In New Mexico, the Republican

Party asserts that the state legislature’s “politically

gerrymandered congressional map” dilutes the votes

“of registered Republicans.”

Compl. ¶¶ 89, 98,

Republican Party of N.M. v. Oliver, No. D-506-CV202200041 (N.M. D. Ct. Jan. 21, 2022). And in Utah,

a collection of left-leaning groups that is similarly

dissatisfied with that State’s redistricting process

argue that “multiple provisions of the Utah

Constitution, including the Free Elections Clause”

prohibit “partisan gerrymandering.” Compl. at 1,

League of Women Voters of Utah v. Utah State

Legislature, No. 220901712 (Utah D. Ct. Mar. 17,

2022).

State court policymaking in cases alleging

partisan gerrymandering of congressional districts

undermines respect for the judiciary. The people who

ratified the Constitution authorized courts to exercise

“neither force nor will, but merely judgment.” The

Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A.

Hamilton) (capitalization altered). Today, however,

many citizens “believe judges decide cases based on

partisan considerations.” App. 172a; accord Richard

L. Hasen, Polarization and the Judiciary, 22 Annu.

Rev. Political Sci. 261, 270 (2019) (“Americans

29

today . . . see [judicial] decisions as political events

and see the justices as political.”). When judges go

beyond their remit and wade into issues that the

Federal Constitution assigns to the peoples’ elected

representatives, that belief is too often confirmed.

That is especially true in disputes about partisan

gerrymanders. Such disagreements “are political, not

legal.” Rucho, 139 S. Ct. at 2500. Because this Court

has correctly recognized that they are “beyond the

competence of the federal courts,” ibid., some state

courts have rushed to fill the void. But the intractable

problems this Court recognized in Rucho are not

solved merely by moving the dispute down one level.

This Court has eschewed judicial administration

of federal elections by federal courts precisely in

deference to state legislatures. Now state courts are

being asked to engage in the same kind of judicial

administration of federal elections.

This Court should reaffirm the authority of state

legislatures to set the time, place, and manner of

federal elections. Under the Federal Constitution,

redistricting decisions are to be made by state

legislatures, subject only to restraints imposed by acts

of Congress and the Constitution itself.

30

CONCLUSION

The Court should reverse the decision below.

Respectfully submitted,

Lee E. Goodman

Counsel of Record

Jeremy J. Broggi

Christopher J. White

WILEY REIN LLP

2050 M Street NW

Washington, DC 20036

(202) 719-7000

LGoodman@wiley.law

Bartlett Cleland

AMERICAN LEGISLATIVE EXCHANGE COUNCIL

2900 Crystal Drive,

6th Floor

Arlington, VA 22202

Counsel for Amicus Curiae

September 6, 2022