Unfortunately, a majority of the Supreme Court in a 6-3 decision Tuesday by Chief Justice John Roberts failed to prevent a liberal state court’s interference with the authority of a state legislature under the U.S. Constitution to set the rules and draw the maps for federal elections. 

The decision will, as Justice Clarence Thomas correctly noted in his powerful dissent, flood federal courts with “Bush [v. Gore]-style controversies over state election law.”

In Moore v. Harper, the majority of justices affirmed the decision of the North Carolina Supreme Court that a court can overturn a map drawn by the state legislature for congressional elections by declaring that the map violates an obscure provision of that state’s constitution. 

This case has a convoluted procedural history. After the North Carolina General Assembly adopted its redistricting map for purposes of congressional elections, several challengers alleged that the map constituted a partisan, political gerrymander in violation of the state’s constitution.

In addition to arguing that the North Carolina Constitution does not prohibit partisan gerrymandering, the state legislature argued that the U.S. Constitution’s Elections Clause gives state legislatures the authority to regulate federal elections without interference by state courts.

The Elections Clause provides that the “Times, Places and Manner of holding” congressional elections will be set “in each State by the Legislature thereof,” although Congress can alter those rules at any time. Additionally, state legislatures are also subject to federal laws, such as the Voting Rights Act, that are implemented to enforce provisions of the U.S. Constitution, such as the 13^th, 14^th and 15^th Amendments, all of which acts as a check on the actions of the state legislatures.

Therefore, the state legislature argued, the Framers of the U.S. Constitution conferred upon state legislatures the authority to devise the procedural rules and maps for the conduct of federal elections and that any challenge to the redistricting map that it drew would have to be based on alleged violations of the U.S. Constitution or the Voting Rights Act, or would have to be made to the U.S. Congress.

Moreover, the legislature pointed out that in 2019 in Rucho v. Common Cause, the U.S. Supreme Court held that partisan gerrymandering does not violate the U.S. Constitution.

In 2022, in a 4-3 decision, with four liberal judges in the majority, the North Carolina Supreme Court rejected those arguments and held that the state legislature’s map was the result of partisan gerrymandering in violation of that state’s constitution. The court proceeded to throw out the legislature’s redistricting plan, and it was that decision that was accepted for review by the U.S. Supreme Court. 

In the ensuing state election, though, two of the liberal justices who had been in the majority lost their re-election efforts and were replaced by conservatives. While the case was still pending before the U.S. Supreme Court, a newly constituted North Carolina Supreme Court reconsidered that prior decision and, by a 5-2 vote, overturned it. 

The court stated that the North Carolina Constitution “expressly assigns the redistricting authority to the General Assembly” and there were no state constitutional limitations on “partisan gerrymandering.”  That raised the issue of whether the case was now moot, and the parties were requested to brief that issue.

In Tuesday’s decision, Roberts—joined by Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson—concluded that the case was not moot, because while the new state court opinion repudiated the conclusion that partisan gerrymandering violated the state constitution, it did not overrule the judgment against the use of the 2021 redistricting plan.

The majority then held that the Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections.  Going all the way back to Marbury v. Madison (1803), and citing numerous other precedents, including the more recent Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the majority said that while state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review. 

Roberts said that the court had previously dismissed the argument that the Elections Clause divests state constitutions of the power to enforce checks against the exercise of legislative power and that historical practices confirm that state legislatures remain bound by state constitutional restraints when exercising authority under the Election Clause. He concluded, though, that the authority of state courts to review the decisions of state legislatures with respect to federal elections under state law is not unbounded, and that such state court judgments could themselves be subject to further federal court review.   

Roberts said that the court didn’t need to decide whether the North Carolina Supreme Court in this case had stayed within the limits of the federal Elections Clause since that issue was not meaningfully presented to the court.

While joining the majority opinion, Kavanaugh wrote a separate concurrence stating his view that in future cases in which federal courts may be asked to review whether state court decisions invalidating the actions of state legislatures on state law grounds, federal judges should adopt the standard previously articulated by Chief Justice William Rehnquist in Bush v. Gore (2000).

Specifically, Kavanaugh opined, federal judges should determine whether the state court “impermissibly distorted” state law “beyond what a fair reading required.”     

Thomas wrote a dissent, joined in full by Justice Neil Gorsuch and in part by Justice Samuel Alito, arguing that this case became moot when the newly constituted North Carolina Supreme Court overturned its own prior decision, held that partisan gerrymandering does not violate the North Carolina Constitution, and ruled in favor of the legislature.

He criticized the majority for breaking one of the court’s “oldest and most consistent threads in the federal law of justiciability” by issuing a substantive ruling in a “straightforward case of mootness.” 

In plain English, Thomas thought it was a major mistake for the court to issue a substantive decision because the controversy stopped being a controversy when the North Carolina Supreme Court overturned its prior decision—the decision the state legislature was appealing.

But in the second part of his dissent (the portion that Alito did not join), Thomas criticized the majority for providing no rules or standards for federal judges to use in future cases when reviewing state court actions in which it is alleged that the state court has exceeded its authority and violated the Elections Clause.

He noted that “the majority opens a new field for Bush-style controversies over state election law … . Though some state constitutions are more [‘prolix’] than the Federal Constitution, it is still a general feature of constitutional text that ‘only its great outlines should be marked.’”

Thomas predicts that this will invite future litigation by “investing potentially large swaths of state constitutional law with the character of a federal question not amenable to meaningful or principled adjudication by federal courts.” 

This “federalization of state constitutions will serve mainly to swell federal-court dockets with state constitutional questions … in the midst of quickly evolving, politically charged controversies, and the winners of federal elections may be decided by a federal court’s expedited judgment that a state court exceeded ‘the bounds of ordinary judicial review’ in construing the state constitution.”

Former President Barack Obama  applauded the majority’s decision, claiming the “independent state legislature theory” is a “fringe” theory that “threatened to upend our democracy and dismantle our system of checks and balances.” But what upends democracy is having state court judges overturning the decision of a large group of legislators who were elected by the voters of a state when they had no authority to do so. 

How happy was Obama when the highest state court in New York overturned the Democrat-controlled state legislature’s new redistricting plans, which favored the Democrats, because the court said such partisan gerrymandering violated the New York Constitution?

The reality is that we have seen an overwhelming explosion of lawsuits in federal courts contesting state election laws ever since the contest in Florida over the 2000 presidential election. There seems little doubt that Thomas’ prediction will prove to be correct that this latest decision will cause even more suits to be filed, and more confusion and chaos, and that it will lead to federal courts getting more deeply involved in, as he says, “state constitutional law.”

So, expect even more election disputes of election procedures and contentious fights in future elections that will delay election results and pad the coffers of the lawyers who specialize in election litigation.

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