Yesterday the Supreme Court handed down its decision in Moore v. Harper, which involved a challenge to the North Carolina Supreme Court’s invalidation last year of the congressional map drawn by the state legislature. I previously examined the Left’s disinformation campaign about this case, which entailed stoking fear of runaway state legislatures engaging in voter suppression and overturning presidential elections. That line of demagoguery downplayed the state court’s brazen contortion of the state constitution to invent a prohibition of partisan gerrymandering. Liberals also ignored the text of the Elections Clause of the Constitution in Article 1, § 4, which provides that the “Times, Places and Manner of holding” congressional elections “shall be prescribed in each State by the Legislature thereof,” subject to congressional power to make or alter such rules, along with constitutional prohibitions of racial discrimination and authorization of civil rights statutes. None of those details were conveyed by the label “independent state legislature theory” that dominated coverage of the case.
Even more deflating to those seeking high constitutional drama, the North Carolina Supreme Court overruled its earlier decision in April, holding that the state constitution did not authorize courts to entertain partisan gerrymandering claims and fully dismissing the plaintiffs’ claims. That would seem to have rendered the case moot. In fact, in supplemental briefing that occurred last month, that was the position of most plaintiffs-respondents—individual North Carolina voters, the North Carolina League of Conservation Voters, and the North Carolina Department of Justice—while Common Cause was the outlier among those parties arguing otherwise.
Unfortunately, a 6–3 majority of the Court could not help itself, straining to assert jurisdiction despite the clear reality that, as Justice Clarence Thomas wrote in dissent, “there simply is nothing this Court could decide that could make any difference to who wins or what happens next in any lower court. That is the definition of mootness for an appellate proceeding.” The Court’s interpretation of the Elections Clause, whatever conclusion it reached, could not “modify the adjudicated rights and liabilities of the parties with respect to the claims in this action.” So the Court was essentially rendering an advisory opinion. Joining Thomas’ mootness analysis were Justices Samuel Alito and Neil Gorsuch. We can only hope that the Court’s newest precedent is not applied in future cases to do further damage to the law of Article III standing.
The Court’s opinion by Chief Justice John Roberts, for its part, was limited in what it actually decided on the merits. It rejected the notion that state constitutions cannot constrain legislatures in their exercise of power under the Elections Clause. But the Court also held that “state courts do not have free rein” in their interpretations of state law. By what standard should a federal court determine whether a state court went too far? The Court mentioned competing opinions in Bush v. Gore (2000): Chief Justice William Rehnquist’s concurrence looked to whether the state supreme court “impermissibly distorted” interpretations of state election laws “beyond what a fair reading required.” Justice David Souter’s dissent looked to whether a state court “transcends the limits of reasonable statutory interpretation to the point of supplanting the statute enacted by the ‘legislature’ within the meaning of Article II.” But the Court would not adopt either test—or any other—in this area. The Court felt no need to adopt a standard of review or to address the ultimate question whether the North Carolina Supreme Court had gone too far in its reading of state law because the North Carolina legislators who filed the challenge in the U.S. Supreme Court “did not meaningfully present the issue” in their appeal. The Court held “only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”
Justice Thomas warned in dissent of the “uncertain path” that awaited the federal judiciary under the Court’s decision: “I fear that this framework will have the effect of 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.” Chief Justice Roberts had described this area as filled with questions that are “complex and context specific.”
A good number of commentators on the Left are claiming victory, not because their favored North Carolina litigants have won or could have won anything of substance in the immediate case, but because the Court seemed to reject the “independent state legislature theory.” Yet while the Court did reject the version of that theory that would not permit state constitutions to substantively constrain state legislatures, that was a maximalist conception of state legislative prerogative, and commentators like Derek Muller have pointed out that there are other interpretations of the Elections Clause that would still impose limits on state supreme courts.
The truly fringe theory in Moore v. Harper, it turns out, is the apparent notion that state courts can act with impunity. No justice in this case disputed that state courts can go too far on matters that fall under the Constitution’s Elections Clause. The Court’s opinion, for all its uncertainty as to standards of review, is an admonition against runaway judicial activism. No state court should feel confident that it could get away with the level of judicial overreach initially attempted by the North Carolina Supreme Court when it invented its own election rules. The U.S. Supreme Court will no doubt have more to say on this subject in the future. It should have had less to say in a case properly understood to be moot.