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.
Supreme Court briefOct 26, 2022
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No. 21-1271
IN THE
Supreme Court of the United States
d
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 SUPREME COURT OF NORTH CAROLINA
BRIEF FOR AMICUS CURIAE FAIRDISTRICTS NOW
IN SUPPORT OF RESPONDENTS
GREGORY L. DISKANT
Counsel of Record
JONAH M. KNOBLER
PETER VOGEL
SARAH HARDTKE
PATTERSON BELKNAP WEBB
& TYLER LLP
1133 Avenue of the Americas
New York, New York 10036
(212) 336-2000
gldiskant@pbwt.com
Attorneys for Amicus Curiae
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICUS CURIAE ............................. 1
SUMMARY OF ARGUMENT ..................................... 1
ARGUMENT ................................................................ 4
I.
AS THE RUCHO COURT RECOGNIZED,
THE FFDA IS A PROPER LIMITATION
ON THE FLORIDA LEGISLATURE’S
REDISTRICTING AUTHORITY WHICH
FLORIDA’S STATE COURTS MAY
CONSTITUTIONALLY ENFORCE. ............... 4
A.
For Decades, Gerrymandering by
Both Democrats and Republicans
Diluted Floridians’ Votes. ..................... 4
B.
In a Vivid Example of Citizen
Democracy, Floridians Enacted
the FFDA. .............................................. 6
C.
Federal and State Courts Have
Repeatedly Upheld the FFDA
Against Elections Clause
Challenges. .......................................... 10
D.
The FFDA Is Constitutional
Under The Elections Clause. .............. 12
ii
II.
LIKE THE FLORIDA COURTS, NORTH
CAROLINA’S COURTS MAY LAWFULLY
REVIEW CONGRESSIONAL MAPS FOR
COMPLIANCE WITH STATE
CONSTITUTIONAL PROVISIONS. ............. 16
A.
The North Carolina Supreme
Court’s Actions At Issue Were
Authorized By The State’s Voters
And Its Legislature. ............................ 17
B.
Petitioners’ Argument That The
Provisions At Issue Are Too
“Open-Ended” Lacks Any Basis
And Is Unworkable. ............................ 19
CONCLUSION .......................................................... 25
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Bayard v. Singleton,
1 N.C. (Mart.) 5 (1787) ......................................... 13
Brown v. Sec’y of State,
668 F. 3d 1271 (11th Cir. 2012) ....................... 6, 10
Common Cause Florida et al. v. DeSantis,
4:22-cv-109-AW-MAF
(N.D. Fla. 2022) ...................................................... 1
DeGrandy v. Wetherell,
794 F. Supp. 1076 (N.D. Fla. 1992) ....................... 5
Diaz-Balart v. Browning,
2011 WL 13175016 (S.D. Fla.
Sept. 9, 2011), aff’d, 668 F.3d 1271
(11th Cir. 2012)........................................... 7, 10, 14
Harper v. Hall,
868 S.E.2d 499 (N.C. 2022) ............................ 21, 22
Harper v. Lewis,
2019 N.C. Super. LEXIS 122
(N.C. Super. Ct. Oct. 28, 2019) ............................ 23
In re Senate Joint Resolution of Legislative
Apportionment 1176,
83 So. 3d 597 (Fla. 2012) ........................................ 9
iv
In re Standards for Establishing Legislative
District Boundaries,
2 So. 3d 175 (Fla. 2009) .................................. 7, 8, 9
League of Women Voters of Florida v.
Detzner,
172 So. 3d 363 (Fla. 2015) .............................. 11, 12
League of Women Voters of Florida v.
Detzner,
179 So. 3d 258 (Fla. 2018) .................................... 12
Martinez v. Bush,
234 F. Supp. 2d 1275 (S.D. Fla. 2002) ............... 5, 6
McCulloch v. Maryland,
17 U.S. 316 (1819) ................................................ 19
Minnesota v. Nat’l Tea Co.,
309 U.S. 551 (1940) .............................................. 23
N.C. Bd. of Educ. v. State,
805 S.E.2d 518 (N.C. Ct. App. 2017),
aff’d, 371 N.C. 149 (2018) ..................................... 17
Romo v. Detzner,
2014 WL 3797315 (Fla. Cir. Ct.
July 10, 2014), aff’d sub nom. League
of Women Voters of Fla. v. Detzner,
172 So. 3d 363 (Fla. 2015) .................................... 11
Rucho v. Common Cause,
139 S. Ct. 2484 (2019) ...................................passim
Smiley v. Holm,
285 U.S. 355 (1932) .................................. 14, 15, 16
v
State v. Ochoa,
792 N.W.2d 260 (Iowa 2010) ................................ 23
Stephenson v. Bartlett,
355 N.C. 354 (2002) .............................................. 23
People ex rel. Van Bokkelen v. Canaday,
73 N.C. 198 (1875) ................................................ 23
VanHorne’s Lessee v. Dorrance,
2 U.S. (2 Dall.) 304 (C.C.D. Pa. 1795) .................. 13
Statutes and Constitutional Provisions
Fla. Const., art. III, § 20(a).......................................... 8
Fla Const. art. XI, § 3 .................................................. 6
N.C. Const., art. I, § 10 .............................................. 20
N.C. Gen. Stat. § 1-267.1(a)....................................... 18
N.C. Gen. Stat. § 120-2.3 ........................................... 18
N.C. Gen. Stat. § 120-2.4(a)(1) .................................. 18
Other Authorities
Andrew Prokop, The Florida Supreme
Court Just Made a Huge New Anti-Gerrymandering Ruling, VOX (July 9, 2015) ............. 11
Bertrall L. Ross II, Challenging the Crown:
Legislative Independence and the
Origins of the Free Elections Clause,
78 ALA. L. REV. 221 (2021) ................................... 21
vi
Brief of Amicus Curiae Conference of Chief
Justices, Moore et al. v. Harper et al.,
No. 21-1271 (U.S. Sept. 6, 2022) .............. 20, 23, 24
Brief of Amici Curiae Group of New York
Voters, Moore et al. v. Harper et al.,
No. 21-1271 (U.S. Sept. 6, 2022) .......................... 19
Brief of Amici Curiae Historians in Support
of Appellees, Gill v. Whitford, 138 S.Ct.
1916 (2018) (No. 16-1161) .................................... 22
Devon Ombres, The Recent History of
Gerrymandering in Florida: Revitalizing
Davis v. Bandemer and Florida’s
Constitutional Requirements on
Redistricting, 20 WASH. & LEE J. CIV.
RTS. & SOC. JUST. 297 (2014) ............................. 5, 6
Florida Dep’t of State, Div. of Elections,
General Election – Constitutional
Amendments (Nov. 2, 2010) ................................... 9
The Meaning of “Legislature” in the Federal
Constitution, 24 HARV. L. REV. 220
(1911) .................................................................... 13
Hayward H. Smith, Revisiting the History
of the Independent State Legislature
Doctrine, 53 ST. MARY’S L. J. 455 (2022) .............. 13
J. Michael Luttig, There Is Absolutely Nothing to Support the ‘Independent State
Legislature’ Theory, THE ATLANTIC,
(Oct. 3, 2022) ........................................................... 2
vii
Jeffrey S. Sutton et al., 51 Imperfect Solutions: State and Federal Judges Consider the Role of State Constitutions in
Rights Innovation, 103 JUDICATURE 33
(2019) .................................................................... 23
John V. Orth, North Carolina Constitutional History, 70 N.C. L. REV. 1759
(1992) .................................................................... 17
Linda Honold and Adrien Schless-Meier,
Case Studies of State Redistricting
Campaigns Volume 3: Florida Fair
DistrictsFlorida.Org (Oct. 2015) ............................ 8
Mark S. Krass, Debunking the Non-Delegation Doctrine for State Regulations of
Federal Elections, 108 VA. L. REV. 1091
(2022) .................................................................... 18
Mary E. Adkins, The Same River Twice: A
Brief History of How the 1968 Florida
Constitution Came To Be and What it
Has Become, 18 FLA. COASTAL L. REV. 5
(2016) ...................................................................... 7
Matthew Isbell, Florida Redistricting Preview #2: 1970s through 1980s – Democratic Gerrymandering, MCI MAPS
(Aug. 4, 2021) .......................................................... 5
Mathew Isbell, Florida Redistricting Preview #4: 1990s Congressional Redistricting – Democrats vs the VRA, MCI MAPS
(Aug. 11, 2021) ........................................................ 5
viii
Matthew Isbell, Florida Redistricting Preview #6: The Fair Districts Campaign,
MCI MAPS (Sept. 2, 2021) ..................................... 9
Michael Weingartner, Liquidating the
Independent State Legislature Theory,
46 HARV. J.L. & PUB. POL’Y 1
(forthcoming 2023) ............................................... 14
P.K. Jameson & Martha Hosack, Citizen Initiative in Florida: An Analysis of Florida’s Constitutional Initiative Process,
Issues, and Alternatives, 23 FLA. ST. U.
L. REV. 417 (1995) ................................................... 7
Paula Dockery, Fair District Amendments
Make Impact, FLORIDA TODAY
(June 19, 2014) ..................................................... 11
1
INTEREST OF AMICUS CURIAE 1
Amicus FairDistricts Now is a nonpartisan, nonprofit organization that works to ensure that Florida’s
electoral districts are drawn according to the law, and
to educate the public about the importance of fairness
and transparency in redistricting. Amicus was formed
to ensure the implementation of Florida’s Fair Districts Amendment (“FFDA”), a 2010 initiative amendment to the state constitution prohibiting incumbent
favoritism or partisan bias in drawing district lines.
Today, amicus continues to advocate for transparency
and fairness in redistricting, including as a plaintiff in
pending federal litigation challenging Florida’s 2022
congressional map. 2
Amicus files this brief in support of Respondents to
urge this Court to reject the atextual and ahistoric Independent State Legislature Theory (“ISLT”), and to
uphold state-level efforts to combat partisan gerrymandering, like the FFDA and the North Carolina provisions at issue here.
SUMMARY OF ARGUMENT
In 2019, this Court held that federal courts may not
hear partisan gerrymandering claims. Rucho v. Common Cause, 139 S. Ct. 2484 (2019). At the same time,
1 Pursuant to S. Ct. Rule 37.6, counsel for all parties have
consented to the filing of this brief. No counsel for a party authored this brief in whole or in part and no person or entity other
than amicus, its members, or its counsel made a monetary contribution to its preparation or submission.
2 Common Cause Florida et al. v. DeSantis, 4:22-cv-109-AWMAF (N.D. Fla. 2022).
2
this Court assured the country that it was not “condemn[ing] complaints about districting to echo into a
void,” because “state constitutions can provide standards and guidance for state courts to apply” in partisan
gerrymandering cases. Id. at 2507–08 (emphasis
added). As an example of such a permissible state constitutional provision, the Court explicitly singled out
the FFDA, which “prohibit[s] partisan favoritism in redistricting.” Id. Chief Justice Roberts’ opinion for the
Court was joined by Justices Thomas, Alito, Gorsuch,
and Kavanaugh. All agreed with the Court’s sensible
discussion of the important role of state courts and
state constitutions in limiting partisan gerrymandering. No member of the Court disagreed.
Three years later, Petitioners and their amici ask
this Court to go back on its word and hold that state
courts are indeed powerless to address partisan gerrymandering—or any other aspect of federal elections—
through “[p]rovisions in ... state constitutions.” Id. The
Court should reject this argument. “There is literally
no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s
founding or the Constitution’s framing” for Petitioners’
radical and dangerous position. J. Michael Luttig,
There Is Absolutely Nothing to Support the ‘Independent State Legislature’ Theory, THE ATLANTIC, (Oct. 3,
2022), https://tinyurl.com/3u8p3rp2.
In Part I below, amicus describes the background
of the FFDA and shows that the Rucho Court was correct to praise it as an exemplar of state-level efforts to
address partisan gerrymandering. In 2010, a supermajority of Florida voters endorsed the FFDA in a bipartisan push to end decades of partisan gerrymandering.
3
In so doing, those voters lawfully exercised the initiative power enshrined in Florida’s constitution. As federal and state courts have held, this was a permissible
check on the Florida Legislature’s redistricting authority under the Elections Clause. Consistent with
the Rucho Court’s observation, constitutional text, legislative history, historical practice, and this Court’s
precedent uniformly support this conclusion.
In Part II below, amicus explains why, given the
constitutionality of the FFDA, Petitioner’s Elections
Clause challenge to the North Carolina decision under
review must fail. Like Florida, North Carolina has
adopted state constitutional provisions that can be violated by “partisan favoritism in redistricting.” Rucho,
139 S. Ct. at 2507. And North Carolina’s “state courts”
can “apply” those provisions to “str[ike] down” gerrymandered congressional maps, just as Florida’s can.
Id. In fact, the state constitutional provisions at issue
here were expressly endorsed by North Carolina’s
General Assembly as well as its voters—and the General Assembly also explicitly invited the North Carolina courts to review its redistricting plans for constitutionality. All of this was a permissible exercise of the
legislative power to regulate federal elections under
the Elections Clause. And, while the North Carolina
constitutional provisions at issue are worded more
generally than the FFDA, Petitioners’ “open-ended”
vs. “specific” test has no constitutional basis; ignores
the General Assembly’s express invitation to the North
Carolina courts to apply the relevant constitutional
language in reviewing its redistricting plans; ignores
the rich history of North Carolina’s Free Elections
Clause; and is utterly unworkable in practice.
4
ARGUMENT
I.
AS THE RUCHO COURT RECOGNIZED,
THE FFDA IS A PROPER LIMITATION
ON THE FLORIDA LEGISLATURE’S
REDISTRICTING AUTHORITY WHICH
FLORIDA’S
STATE
COURTS
MAY
CONSTITUTIONALLY ENFORCE.
In Rucho, this Court praised the FFDA as an example of permissible efforts by “[t]he States” to “address[]
the issue” of “excessive partisan gerrymandering.” 139
S. Ct. at 2507–08. By “prohibit[ing] partisan favoritism in redistricting,” the Court explained, the FFDA
“provide[d] ... guidance” that Florida’s “state courts”
could “apply” by “str[iking] down ... congressional districting plan[s] [that] violat[e]” the FFDA’s command.
Id. No Justice so much as suggested that the FFDA
was constitutionally infirm—and for good reason. The
Elections Clause’s text, its legislative history, the
states’ historical practice, and this Court’s precedents
all establish that the Rucho Court was right.
A.
For Decades, Gerrymandering by
Both Democrats and Republicans
Diluted Floridians’ Votes.
Before the FFDA’s enactment in 2010, Democratic
and Republican majorities in Florida’s Legislature
drew district lines as they pleased, with the purpose of
cementing their own political power and making themselves unaccountable to the voters.
Democrats held a majority in the Legislature during the 1970s and ’80s, and frequently wielded their
majority status to manipulate the redistricting
5
process. 3 The tide turned in the 1990s, as Republicans
gained ground in both chambers. 4 The turbulent 1992
redistricting cycle saw both parties vie to strengthen
their power through political gamesmanship. Republicans sought to pack minority voters into majority-minority districts to aid their party, and Democrats
aimed to crack minority districts across the state to
benefit their own. 5 Unable to reach agreement, the
Legislature failed to pass a congressional map. 6 As a
result, a federal court was forced to intervene and enact a remedial map. 7
After taking control of both legislative chambers in
1996, Republicans used the 2000 redistricting cycle to
solidify their control over Florida’s electoral map.
They ensured this result by packing and cracking
Democratic districts, making it nearly impossible for
Democrats to gain a majority in the state’s congressional delegation or in either chamber of the Legislature. 8 Under the enacted 2002 map, 18 of 25 congressional districts (72%) leaned or were solidly Republican, despite a near-even partisan divide in the state. 9
Matthew Isbell, Florida Redistricting Preview #2: 1970s
through 1980s – Democratic Gerrymandering, MCI MAPS (Aug. 4,
2021), https://tinyurl.com/yxvh6j8f.
4 Mathew Isbell, Florida Redistricting Preview #4: 1990s Congressional Redistricting – Democrats vs the VRA, MCI MAPS (Aug.
11, 2021) https://tinyurl.com/bpah43cj.
5 Id.
6 Id.
7 DeGrandy v. Wetherell, 794 F. Supp. 1076, 1087–88
(N.D. Fla. 1992).
8 Devon Ombres, The Recent History of Gerrymandering in
Florida: Revitalizing Davis v. Bandemer and Florida’s Constitutional Requirements on Redistricting, 20 WASH. & LEE J. CIV. RTS.
& SOC. JUST. 297, 316-17 (2014).
9 Martinez v. Bush, 234 F. Supp. 2d 1275, 1324 (S.D. Fla. 2002).
3
6
To gain a majority in the congressional delegation,
Democrats would have had to win all “their” districts,
the only swing district, two Republican-leaning districts, and a safe Republican district—an all-but-impossible task in a closely divided state. 10
In federal litigation challenging the 2002 congressional map, a three-judge panel determined that the
Florida Legislature’s “overriding goal with respect to
congressional reapportionment was to … maximize
the number of districts likely to perform for Republicans.” Martinez v. Bush, 234 F. Supp. 2d 1275, 1300–
01 (S.D. Fla. 2002). Although the court reluctantly upheld the congressional map, it lamented that “[t]his
raw exercise of majority legislative power does not
seem to be the best way of conducting a critical task
like redistricting.” Id. at 1297. With the gerrymandered map in place, Democrats were marginalized and
voters were denied their basic right to free and fair
representation.
B.
In a Vivid Example of Citizen Democracy, Floridians Enacted the FFDA.
Florida voters did not take this lying down. The
state’s constitution authorizes the citizen initiative
process as “part of the state’s lawmaking function,”
Brown v. Sec’y of State, 668 F. 3d 1271, 1279 (11th Cir.
2012), vesting voters with “[t]he power to propose the
revision or amendment of any portion or portions of
this constitution,” Fla. Const. art. XI § 3. The state’s
constitution thereby authorizes Florida voters to “participate in the lawmaking process” just as its elected
10 Ombres, supra note 8, at 317.
7
legislators do, including by “attach[ing] new conditions
to the exercise of the legislature’s various powers.”
Diaz-Balart v. Browning, 2011 WL 13175016, at *6
(S.D. Fla. Sept. 9, 2011), aff’d, 668 F.3d 1271 (11th Cir.
2012). This initiative process dates back to 1968, when
the state Legislature proposed, and Florida voters approved, sweeping changes to the Florida constitution,
including adding the ballot initiative power. 11 Thus, it
bears emphasizing, the Legislature itself endorsed the
initiative process by which the FFDA was subsequently enacted.
In November of 2010, exercising that legislatively
sanctioned initiative power, Florida’s voters approved
the FFDA. 12 That amendment was a forceful response
by Florida’s polity to the decades of brazen gerrymandering perpetrated by elected officials of both parties.
Its aim was to “require the Legislature to redistrict in
a manner that prohibits favoritism or discrimination,
while respecting geographic considerations.” Advisory
Op. to the Attorney General re Standards for Establishing Legislative District Boundaries, 2 So. 3d 175, 181
(Fla. 2009).
To accomplish that goal, the FFDA establishes two
tiers of standards for the Legislature to follow. The
11 Mary E. Adkins, The Same River Twice: A Brief History of
How the 1968 Florida Constitution Came To Be and What it Has
Become, 18 FLA. COASTAL L. REV. 5, 18–19 (2016); P.K. Jameson
& Martha Hosack, Citizen Initiative in Florida: An Analysis of
Florida’s Constitutional Initiative Process, Issues, and Alternatives, 23 FLA. ST. U. L. REV. 417, 423–24 (1995).
12 A nearly identical amendment adopted at the same time
regulated the drawing of state legislative districts. For the purposes of this brief, the “FFDA” refers to the amendment regulating congressional elections.
8
“Tier I” criteria require that “[n]o apportionment plan
or individual district ... be drawn with the intent to favor or disfavor a political party or an incumbent”; that
“districts ... not be drawn” to “deny[] or abridg[e]” the
rights of “racial or language minorities”; and that districts “consist of contiguous territory.” Fla. Const., art.
III § 20(a). The “Tier II” criteria codify other traditional redistricting principles, including that districts
be “as nearly equal in population as is practicable”;
“compact”; and, “where feasible, utilize existing political and geographic boundaries.” The Tier II criteria
must be followed to the extent doing so does not conflict with the Tier I provisions. Id. § 20(b).
Enacting the FFDA took years of grassroots mobilization. A nonpartisan coalition, FairDistrictsFlorida.org, campaigned for the amendment for four years,
emphasizing the restoration of political power to the
people of Florida. Over time, the coalition’s ranks grew
to include the Florida League of Cities, the Florida Association of Counties, and the Florida School Board Association. It also included organizations of all political
persuasions, from the ACLU to Tea Party groups. And
it was supported by a bevy of public officials—Democratic, Republican, and independent. 13
In 2009, the Florida Supreme Court approved the
FFDA’s ballot language, finding that the amendment
would not enlarge or alter the function of the state judiciary. Rather, it found, the FFDA was “directed to
the single unified purpose of establishing standards by
which … congressional districts are to be drawn.” In re
13 Linda Honold and Adrien Schless-Meier, Case Studies of
State Redistricting Campaigns Volume 3: Florida FairDistrictsFlorida.Org at 8 (Oct. 2015), https://tinyurl.com/2sxpf4wc.
9
Standards, 2 So. 3d at 183. The court continued: “under the [FFDA], the judiciary maintains the same role
as it has always possessed—to only review apportionment plans for compliance with state and federal constitutional requirements and to adjudicate challenges
to redistricting plans. The [FFDA] do[es] not shift in
any way the authority of the Legislature to draw ...
congressional districts to the judicial branch.” Id. at
187. On January 22, 2010, the Florida Department of
State certified the FFDA for placement on the 2010
general election ballot. Ultimately, it received 1.75
million signatures for ballot certification—almost 10%
of the state’s population. 14 By the time the amendment
came up for a vote, it had the endorsement of every
newspaper editorial board in the state.
In November 2010, Floridians approved the FFDA
by a clear supermajority of 62.9% to 37.1%. 15 An extraordinary feat of popular lawmaking, the initiative
drew support across party and racial lines, including
from conservative suburbs and retiree communities
across the state. 16 As the Florida Supreme Court later
observed, “the citizens of the state of Florida, through
the Florida Constitution, employed the essential concept of checks and balances, granting to the Legislature the ability to apportion the state in a manner prescribed by the citizens.” In re Senate Joint Resolution
This is an aggregate tally for both redistricting amendments, one regulating state legislative redistricting and the other
regulating congressional redistricting.
15 Florida Dep’t of State, Div. of Elections, General Election –
Constitutional Amendments (Nov. 2, 2010), https://tiny
url.com/3dvsb25f.
16 Matthew Isbell, Florida Redistricting Preview #6: The Fair
Districts Campaign, MCI MAPS (Sept. 2, 2021), https://tinyurl.com/3cu7je5a.
14
10
of Legislative Apportionment 1176, 83 So. 3d 597, 600
(Fla. 2012) (“Apportionment I”).
C.
Federal and State Courts Have
Repeatedly
Upheld
the
FFDA
Against Elections Clause Challenges.
Although the FFDA enjoyed widespread bipartisan
support from Floridians, one group in particular did
not support it: members of the Florida Legislature,
who viewed it as a threat to their own self-entrenchment. Mere hours after the FFDA was approved in the
general election, members of Florida’s congressional
delegation took to the courts to challenge the new constitutional provisions, with the Florida House of Representatives later joining as an intervenor-plaintiff.
In the Southern District of Florida, two Florida
Representatives and the Florida House argued that
the FFDA violated the federal Constitution’s Elections
Clause because it was “enacted completely outside of
the legislative process,” citing the clause’s “prescription that the ‘Times, Places and Manner of holding
Elections…’ be prescribed in each State by the ‘Legislatures thereof.” Diaz-Balart, 2011 WL 13175016, at
*2, *6. Coalition partners intervened to defend the
FFDA. The court held that the FFDA was entirely consistent with Supreme Court precedent and the Framers’ original understanding of the Elections Clause.
Id. at *7. The Eleventh Circuit unanimously affirmed,
emphasizing that “Florida’s citizen initiative is every
bit a part of the state’s lawmaking function.” Brown,
668 F.3d at 1279.
State legislators’ efforts to thwart the FFDA did not
cease there. In 2012, the Legislature made a “mockery”
11
of the required transparent and fair redistricting process by passing a blatantly gerrymandered map.
League of Women Voters of Florida v. Detzner, 172 So.
3d 363, 377 (Fla. 2015) (“Apportionment VI”). In a
“shadow” redistricting process marked by subterfuge,
lawmakers colluded in back-room meetings with party
operatives to draw extreme gerrymanders favoring Republicans. Id. at 377–80. 17 The resulting map allowed
Republicans to carry 63% of the state’s congressional
seats, while winning just 51% of the statewide vote. 18
Although not a formal party, amicus helped lead the
subsequent court challenge to the lawmakers’ unconstitutional map. An expert witness at trial called the
map the most extreme gerrymander he had ever
seen. 19 Finding that the redistricting process was infected with “improper partisan intent,” the trial court
invalidated Districts 5 and 10 under the FFDA. 20
In 2015, the Florida Supreme Court agreed, but
held that the trial court had not gone far enough.
Discovery and trial exposed the breadth of lawmakers’
scheme to evade their constitutional obligations. Consultants
used proxies and aliases throughout the redistricting process, including in public forums and when submitting maps, to avoid suspicion. Apportionment VI, 172 So. 3d at 380–81. Tellingly, lawmakers and political operatives systematically deleted nearly all
of their emails and documentation relating to the redistricting.
Id. at 385.
18 Andrew Prokop, The Florida Supreme Court Just Made a
Huge New Anti-Gerrymandering Ruling, VOX (July 9, 2015),
https://tinyurl.com/u7b3c2e3.
19 See Paula Dockery, Fair District Amendments Make Impact, FLORIDA TODAY (June 19, 2014), https://tinyurl.
com/yc59cjk3.
20 Romo v. Detzner, 2014 WL 3797315 at *11, *20 (Fla. Cir. Ct.
July 10, 2014), aff’d sub nom. League of Women Voters of Fla. v.
Detzner, 172 So. 3d 363 (Fla. 2015).
17
12
Apportionment VI, 172 So. 3d at 363. It ordered the
Legislature to redraw eight congressional districts to
comply with the FFDA’s requirements. Id. at 363. The
court’s decision emphasized that, in enacting the
FFDA, “[t]he voters sought fair districts.” Id. at 415.
It was the responsibility of the judiciary, the court
held, to give effect to that intent. Id. The court further
explained that “the Elections Clause ... [does not] prohibit[] the people of a state, through the citizen initiative process, from directing the way in which its congressional district boundaries are drawn.” Id. at 370
n.2. This Court would go on to cite this decision of the
Florida Supreme Court as proof that the justiciability
holding in Rucho did not “condemn complaints about
districting to echo into a void.” 139 S. Ct. at 2507.
Despite getting a second bite at the apple, Florida’s
Legislature again failed to propose a congressional
map that complied with the FFDA. League of Women
Voters of Florida v. Detzner, 179 So. 3d 258, 96–97
(Fla. 2018) (“Apportionment VIII”). The trial court
subsequently adopted a remedial map. Acknowledging
its “solemn obligation to ensure compliance with the
Florida Constitution in this unique context,” the Florida Supreme Court upheld the trial court’s remedial
plan. Id. at 297. In the first election following the remedial plan’s enactment, the state saw a swift uptick
in electoral competitiveness: congressional races were
much closer than they had been in years, and five seats
changed hands from one party to the other.
D.
The FFDA Is Constitutional Under
The Elections Clause.
The FFDA is constitutional. That is the unexceptional premise that was necessary to, and the
13
intellectual basis for, Rucho’s favorable discussion of
the FFDA as an example of what “[t]he States” may
do. Indeed, whether as a matter of plain text, legislative history, historical practice, or judicial precedent,
the FFDA satisfies Elections Clause scrutiny.
Start with the Elections Clause’s text. Petitioners’
argument in support of the ISLT hinges on the phrase
“the Legislature thereof.” Even setting aside the use of
the term “Legislature” as a reference to the State’s
law-making function, Petitioners’ focus on the institutional legislature does not advance their argument.
“[T]he Founding generation understood that ‘legislatures’” were bodies that acted “subject to substantive
state constitutional restrictions.” Hayward H. Smith,
Revisiting the History of the Independent State Legislature Doctrine, 53 ST. MARY’S L. J. 455, 447–48 (2022);
see 2 Records of the Federal Convention of 1787, at 88
(George Mason) (Max Farrand ed., 1937) (state legislatures are “mere creatures of the State Constitutions,
and cannot be greater than their creators”). The Framers also understood that when those bodies “act[ed]
contrary to the[ir] state constitution,” they were not
acting as “legislatures” at all. The Meaning of “Legislature” in the Federal Constitution, 24 HARV. L. REV.
220, 220–21 (1911); see Bayard v. Singleton, 1 N.C.
(Mart.) 5, 7 (1787) (if the legislature attempted to “repeal or alter the constitution,” that act would “destroy
their own existence as a Legislature”); VanHorne’s
Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 308 (C.C.D. Pa.
1795) (Paterson, J.) (because legislatures are “[c]reatures of the Constitution,” “all their acts must be conformable to it, or else they will be void”). Thus, the
Elections Clause’s use of the word “Legislature”—even
if meant “in the ordinary sense” of an “official
14
[lawmaking] body,” rather than in an “enlarged
sense”—does not “render[] inapplicable the conditions
which attach to the making of state laws.” Smiley v.
Holm, 285 U.S. 355, 364–66 (1932). State legislatures
are still subject to, and constrained by, state constitutions.
Next, consider legislative history. As this Court has
noted, “[t]here is no intimation, either in the debates
in the Federal Convention or in contemporaneous exposition, of a purpose to exclude ... restriction[s] imposed by state Constitutions upon state Legislatures
when exercising [their] lawmaking power” under the
Elections Clause. Smiley, 285 U.S. at 369; see also
Diaz-Balart, 2011 WL 13175016, at *4–5. In fact, the
Convention debates were replete with expressions of
“distrust [for] state legislatures”—the same sentiment
that led to the FFDA’s enactment—making it “hard to
imagine” that the Framers intended sub silentio to
“eliminate” the “important check on state legislatures”
provided by state constitutions and state-court judicial
review. Michael Weingartner, Liquidating the Independent State Legislature Theory, 46 HARV. J.L. & PUB.
POL’Y 1, 32–33 (forthcoming 2023); see also Luttig, supra (noting the Framers’ “deep suspicions of the natural partisan tendencies of the state legislatures”).
Historical practice, too, validates the FFDA. Under
the Articles of Confederation, state constitutions “expressly regulated the way in which ‘legislatures’ could
exercise their power to direct the manner of appointing
delegates to Congress, and those regulations were subsequently followed.” Smith, supra, at 463, 476. States
continued to adopt such restrictions under the Constitution, both in the founding generation and thereafter,
15
without notable resistance or criticism. These included
substantive prescriptions and limitations on how congressional maps may be drawn. See, e.g., id. at 493,
506–07, 518, 525–28; Amar & Amar, supra, at 22;
Weingartner, supra, at 38.
For example, in 1830, Virginia amended its constitution to specify that the state’s congressional districts
would be “apportioned as nearly as may be amongst
the several counties, cities, boroughs, and towns ... according to their respective numbers.” See Smith, supra, at 506 (quoting Va. Const. of 1830 art. III § 6). It
did so over the sole objection of Lewis Summers, who—
alone among the delegates to the constitutional convention—expressed concern that this provision might
“regulate by the State Constitution ... powers or duties
devolved on the Legislature by the Constitution of the
United States.” Id. at 485–86. This early (and isolated)
invocation of what is now known as the ISLT did not
sway Summers’ fellow delegates, who included father
of the Constitution James Madison, Chief Justice John
Marshall, and future president John Tyler—all of
whom voted, along with a supermajority of their colleagues, to adopt the provision. Id.
Finally, this Court’s own precedent holds that the
Elections Clause takes state legislatures as it finds
them, subject to state constitutional provisions like the
FFDA that constrain their discretion. See Smiley, 285
U.S. at 367–68 (“We find no suggestion in the [Elections Clause] of an attempt to endow the Legislature
of the state with power to enact laws in any manner
other than that in which the Constitution of the state
has provided that laws shall be enacted.”). For example, in Ohio ex rel. Davis v. Hildebrant, the Court
16
considered a congressional redistricting act passed by
Ohio’s General Assembly but then rejected by the
state’s voters through a referendum process endorsed
by the Ohio Constitution. 241 U.S. 565, 566 (1916).
This Court dismissed the relators’ complaint that this
process violated the Elections Clause as “plainly without substance.” Id. at 569. As the Court later explained, “it was because of the authority of the state to
determine what should constitute its legislative process that the validity of the requirement of the state
constitution of Ohio, in its application to congressional
elections, was sustained.” Smiley, 285 U.S. at 372.
In sum, the FFDA is plainly constitutional. Text,
legislative history, historical practice, and precedent
uniformly support that conclusion. The Rucho Court
was thus correct to cite the FFDA as a prime example
of what voters may validly do to prevent their “complaints about districting [from] echo[ing] into a void.”
139 S. Ct. at 2507.
II.
LIKE THE FLORIDA COURTS, NORTH
CAROLINA’S COURTS MAY LAWFULLY
REVIEW CONGRESSIONAL MAPS FOR
COMPLIANCE WITH STATE CONSTITUTIONAL PROVISIONS.
If Florida’s polity may use Florida’s state constitution to constrain the Florida Legislature’s redistricting
authority—as the Rucho Court said it could—there is
no reason why North Carolina’s polity cannot do the
same. Likewise, if Florida’s state courts can enforce
such constitutional provisions through judicial review—as the Rucho court said it could—there is no
reason why North Carolina’s state courts cannot do the
same. No valid basis exists to distinguish this case.
17
A.
The North Carolina Supreme Court’s
Actions At Issue Were Authorized By
The State’s Voters And Its Legislature.
Petitioners characterize the decision below as an illegitimate and undemocratic exercise of judicial fiat.
Nothing could be further from the truth.
For starters, the provisions of the North Carolina
Constitution that the North Carolina Supreme Court
enforced below are part of North Carolina’s duly ratified state constitution, just as the FFDA is a part of
Florida’s. The most notable difference is that, unlike
in Florida—where the voters alone ratified the FFDA
(albeit through an initiative process authorized by the
Legislature)—the North Carolina General Assembly
played a direct role in adopting the substantive provisions at issue here. In 1969, the General Assembly proposed revising North Carolina’s 1868 Constitution.
N.C. Bd. of Educ. v. State, 805 S.E.2d 518, 523 (N.C.
Ct. App. 2017), aff’d, 371 N.C. 149 (2018). A committee
of experts drafted the proposed language, which the
General Assembly approved and sent to the voters for
ratification. John V. Orth, North Carolina Constitutional History, 70 N.C. L. REV. 1759, 1790 (1992); Bd.
of Educ., 805 S.E.2d at 524. Through this process, both
North Carolina’s legislature and its electorate gave
their imprimatur to the constitutional provisions that
the state’s Supreme Court applied below.
But that is not all. Unlike in Florida, “the [North
Carolina] state legislature itself has [also] legislated a
comprehensive scheme for state judicial statutory and
constitutional review of the legislature’s redistricting
decisions”—and the decision before this Court was the
18
product of that legislatively enacted scheme. Luttig,
supra. Specifically, the General Assembly authorized
the state’s courts to review “[a]ny action challenging
the validity of any act of the General Assembly that
apportions or redistricts ... congressional districts,”
N.C. Gen. Stat. § 1-267.1(a), and it authorized state
courts to declare maps unconstitutional and “impose
an interim districting plan” to remedy any violation.
Id. §§ 120-2.3; 120-2.4(a)(1). 21
To put it simply, the General Assembly, using its
authority under the Elections Clause to “prescribe[]”
the “Times, Places and Manner of holding Elections,”
has expressly and voluntarily conditioned its redistricting legislation on the determination by the North
Carolina courts that said legislation complies with the
North Carolina constitution. If the Florida Supreme
Court could strike down congressional districts under
the FFDA without the Legislature’s express authorization—as the Rucho Court agreed it could—then surely,
the North Carolina Supreme Court can strike down
congressional districts at the express invitation of the
General Assembly. This alone should suffice to affirm
the decision below.
21 Petitioners’ argument that this action by the General As-
sembly violated some “non-delegation” rule lacks any textual,
precedential, or historical basis. See Mark S. Krass, Debunking
the Non-Delegation Doctrine for State Regulations of Federal Elections, 108 VA. L. REV. 1091, 1136 (2022) (observing that, given
“[t]he ubiquity of delegation in the first decades of the republic,”
a reading of the Elections Clause that disfavored delegation
would “lead to the absurd conclusion that the first several elections to Congress were basically illegal in most states”).
19
B.
Petitioners’ Argument That The Provisions At Issue Are Too “OpenEnded” Lacks Any Basis And Is Unworkable.
Petitioners and their amici seek to distinguish the
North Carolina constitutional provisions at issue here
from provisions like the FFDA on the ground that the
North Carolina provisions’ language is too “openended” for state courts to permissibly enforce. Petitioners’ Brief at 46. As Petitioners concede, when a state
court employs highly specific language in a state’s constitution to strike down a congressional map, it is acting legitimately as a court—but, in their view, when it
employs more generally worded provisions to do so, it
engages in illegitimate “policymaking.” Id. at n.11; see
also, e.g., Brief of Amici Curiae Group of New York
Voters at 3, Moore et al. v. Harper et al., No. 21-1271
(U.S. Sept. 6, 2022) (arguing for a “clear statement”
rule). This argument fails.
For starters, nothing in the Constitution’s text or
this Court’s precedent distinguishes between closedended and open-ended constitutional provisions or
suggests that courts cease to act as courts when they
interpret and enforce provisions of the latter type. As
Chief Justice John Marshall famously opined, in words
equally applicable to the North Carolina Constitution:
“we must never forget that it is a Constitution we are
expounding.” McCulloch v. Maryland, 17 U.S. 316, 407
(1819) (emphasis in original). It is hardly a criticism of
North Carolina that its constitution employs layman’s
language dating from the 17th century (e.g., “free”
elections) rather than the technical redistricting terminology of the 20th (e.g., “compactness”).
20
Moreover, this Court routinely discerns the meaning of general constitutional language—such as “unreasonable searches,” “due process of law,” “cruel and
unusual punishments,” and “equal protection of the
laws.” To do so, it applies traditional judicial tools,
such as precedent, drafting history, original public
meaning, and historical practice. And, based on those
constructions, this Court sometimes strikes down laws
as unconstitutional. Those decisions are no less legitimate—and no less “judicial”—because the constitutional provisions at issue are worded generally. The
North Carolina Supreme Court is entitled to employ
the same judicial tools to discern the meaning of its
own constitution’s “open-ended” provisions. See Brief
of Amicus Curiae Conference of Chief Justices at 17,
Moore et al. v. Harper et al., No. 21-1271 (U.S. Sept. 6,
2022) [hereinafter “Brief of Conference of Chief Justices”] (“Courts do not cease to act judicially when they
interpret and apply constitutional provisions such as
“‘free’ or ‘fair’ elections” or “equal protection.”).
Notably, even constitutional provisions that appear
“open-ended” on their faces may have readily discernable meanings when one looks to their context. 22 Cf.
Rucho, 139 S. Ct. at 2505–06. Take North Carolina’s
“Free Elections Clause,” which has no analogue in the
federal Constitution, and which this Court has no experience interpreting. It provides that “[a]ll elections
22 And, conversely, even constitutional provisions that appear
highly specific can require judicial interpretation. For example,
the FFDA’s prohibition on drawing districts “with the intent to
favor or disfavor a political party or an incumbent” may require
judicial construction to determine, e.g., whose intent matters,
what degree of intent is required (e.g., sole intent, predominant
intent, or any intent), and how such intent is to be proven.
21
shall be free.” N.C. Const., art. I, § 10. This clause has
existed in North Carolina’s constitutions in substantially the same form since 1776, and is “derived from a
[similar] clause in the English Bill of Rights of 1689, a
product of the Glorious Revolution of 1688.” Harper v.
Hall, 868 S.E.2d 499, 540 (N.C. 2022) (citing Earle H.
Ketcham, The Sources of the North Carolina Constitution of 1776, 6 N.C. HIST. REV. 215, 221 (1929)); see also
Bertrall L. Ross II, Challenging the Crown: Legislative
Independence and the Origins of the Free Elections
Clause, 78 ALA. L. REV. 221, 227–28, 289 (2021) (describing the origins of colonial-era “free elections”
clauses in the English Bill of Rights of 1689).
England’s “free elections” clause was adopted “in
response to the king’s efforts to manipulate parliamentary elections by diluting the vote in different areas to
attain ‘electoral advantage[.]’” Harper, 868 S.E.2d at
540 (citing J.R. Jones, The Revolution of 1688 in England 148 (1972); Gary S. De Krey, Restoration and
Revolution in Britain: A Political History of the Era of
Charles II and the Glorious Revolution 241, 247–48,
250 (2007)). For example, the Crown annulled or modified the charters of English boroughs (the rough
equivalent of legislative districts) to “control the appointment of new borough members” and thereby ensure election of the Crown’s “partisan allies.” Ross, supra, at 256–57, 267, 279–80. The Crown further “influence[d] the composition of Parliament by expanding
the body through the grant of [new] charters” to “rotten boroughs,” in which “nonresident lords, barons,
and other nobles allied with the King could control
parliamentary selection.” Id. at 269. Through efforts
like these, the Crown was able to ensure a Parliament
that was “amenable to the Crown’s policy preferences.”
22
Id. at 257, 267. Opponents objected to these maneuvers as an illegitimate “influence upon ... free Elections.” Id. at 257 (quoting J.H. Sacret, The Restoration
Government and Municipal Corporations, 45 ENG.
HIST. REV. 232, 250 (1930)).
“Avoiding the manipulation of districts that diluted
votes for electoral gain was [thus] a key principle of the
reforms following the Glorious Revolution”—the English Bill of Rights’ “free elections” clause among them.
Harper, 868 S.E.2d at 540; Ross, supra, at 288. As the
North Carolina Free Elections Clause’s textual similarity to the English clause and the statements of the
North Carolina clause’s framers make clear, this antimanipulation principle was carried forward in the
North Carolina clause. Harper, 868 S.E.2d at 540–42
& n.13 (discussing the frequent references of the North
Carolina framers to the reforms of the Glorious Revolution); see also Brief of Amici Curiae Historians in
Support of Appellees at 12, Gill v. Whitford, 138 S.Ct.
1916 (2018) (No. 16-1161), (noting that “Free Elections” provisions like North Carolina’s were a “response” to “concerns” about “‘unfair, partial, and corrupt’” elections in England (quoting John Adams,
Thoughts on Government (1776))).
Thus, despite its terse wording, the Free Elections
Clause is not a tabula rasa. And in construing that
clause to bar partisan gerrymandering, the North Carolina Supreme Court was not engaged in “unfettered
policymaking,” as Petitioners assert. Petitioners’ Brief
at 46. Rather, that court did what this Court routinely
does: it employed “the interpretive and decision making tools traditionally used by judicial officers,” such
as history and context, to discern that clause’s
23
meaning and intent. Brief of Conference of Chief Justices at 19, 20–21. Perhaps this Court, reading the
same historical sources de novo, would come to a different conclusion about the meaning of the Free Elections Clause—or perhaps not. Regardless, such disagreement has never been a basis for federal courts to
impugn a state court’s interpretations of its own constitution. See Minnesota v. Nat’l Tea Co., 309 U.S. 551,
557 (1940) (“It is fundamental that state courts be left
free and unfettered by us in interpreting their state
constitutions.”). 23
23 The same goes for the North Carolina Supreme Court’s in-
terpretation of its constitution’s Equal Protection Clause, Free
Speech Clause, and Freedom of Assembly Clause to prohibit partisan gerrymandering. Although those clauses—unlike the Free
Elections Clause—do have analogues in the federal Constitution,
it is well-settled that state courts may depart from this Court’s
construction of constitutional language when interpreting their
own constitutions, even when the relevant provisions are worded
identically. See, e.g., State v. Ochoa, 792 N.W.2d 260, 264–67 &
nn. 1–3 (Iowa 2010); Jeffrey S. Sutton et al., 51 Imperfect Solutions: State and Federal Judges Consider the Role of State Constitutions in Rights Innovation, 103 JUDICATURE 33, 45 (2019). Here,
moreover, usurping the North Carolina Supreme Court’s role as
the ultimate authority on the meaning of these state constitutional provisions would be particularly inappropriate, as ample
state-court precedent supported—even required—the conclusions
reached below. See, e.g., Stephenson v. Bartlett, 355 N.C. 354, 382
(2002) (holding that North Carolina’s Equal Protection Clause
mandates that redistricting plans afford “substantially equal voting power and substantially equal legislative representation”);
People ex rel. Van Bokkelen v. Canaday, 73 N.C. 198, 223, 225–26
(1875) (voiding an act of the General Assembly districting Wilmington into three wards with markedly different populations for
“plain[ly] violati[ng the] fundamental principle[ of] apportionment of representation”); Harper v. Lewis, 2019 N.C. Super.
LEXIS 122, at *9–11 (N.C. Super. Ct. Oct. 28, 2019) (unanimously
24
Finally, Petitioners’ proposed dichotomy of “openended” and “specific” constitutional provisions is utterly unworkable. See Brief of Conference of Chief Justices at 23–27. How is this Court (or a lower federal
court) to decide when a state constitutional provision
crosses the proposed line? Must the determination be
made on the basis of the provision’s text alone, as if it
were a contract with an integration clause—or may
courts consider history, legislative intent, and judicial
precedent when determining if a state constitutional
provision is too vague? If the provision’s text must be
considered in vacuo, why does the Elections Clause impose such a rule, when federal courts seldom—if
ever—interpret the federal constitution in that manner? If contextual factors may save a constitutional
provision from being pronounced “too vague,” how are
those factors to be weighted? And what special expertise does this Court have in the diverse histories and
interpretive jurisprudence of the 50 state constitutions?
In reality, “[t]here are no legal standards discernable in the Constitution for making ... judgments” about
when state constitutional language becomes too “openended” to satisfy Elections Clause scrutiny—let alone
“limited and precise standards that are clear, manageable, and politically neutral.” Rucho, 139 S. Ct. at
2500. Absent such standards, the public would inevitably attribute the Court’s decisions in this area to the
desired political outcome of those Justices voting in the
majority. If the perceived lack of clear and neutral
standards bars federal courts from hearing partisan
gerrymandering
claims,
notwithstanding
that
holding that extreme partisan gerrymanders violate the state’s
Free Elections and Equal Protection clauses).
25
practice’s acknowledged “incompatib[ility] with democratic principles,” Rucho, 139 S. Ct. at 2506, then a fortiori, the lack of such standards counsels strongly
against plunging into this new “political thicket.”
CONCLUSION
As this Court observed just three years ago, in considering gerrymandering challenges to congressional
redistricting plans, “[p]rovisions in state statutes and
state constitutions can provide standards and guidance for state courts to apply.” Rucho, 139 S. Ct. at
2507. And, applying those standards, state courts can
“str[ike] down ... congressional districting plans as a
violation” of their state constitutions. Id. We trust the
Court meant what it said. And that is all that happened here. North Carolina’s legislature expressly invited the North Carolina courts to review its handiwork for compliance with the state’s constitution. The
North Carolina courts proceeded to do as the legislature had asked, discerning the meaning of North Carolina’s constitution using the same interpretive techniques this Court routinely employs. The federal Elections Clause gives this Court no license to secondguess this state-law process, or the state-law decision
that resulted.
The judgment of the North Carolina Supreme
Court should be affirmed.
26
Respectfully submitted.
GREGORY L. DISKANT
Counsel of Record
JONAH M. KNOBLER
PETER VOGEL
SARAH HARDTKE
PATTERSON BELKNAP
WEBB & TYLER LLP
1133 Ave. of the Americas
New York, NY 10036
(212) 336-2000
gldiskant@pbwt.com
Counsel for Amicus Curiae
October 26, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.