[This post is in progress.]
This morning the Court hears oral argument in the Moore v. Harper, a case raising the so-called Independent State Legislature theory. Doctrinally, at issue is whether state courts may apply state constitutions to rein in a legislature’s partisan gerrymandering in a federal election, or whether such conduct is barred by the Elections Clause in Article I, section 4 of the Constitution (which gives state “legislatures” the ability to set rules for congressional elections, subject to congressional override). I filed this amicus brief, with the good folks at Manatt, and Nat Bach and I wrote Nat Bach wrote this piece at Slate, “The Supreme Court Is Headed for a Self-Imposed Voting Caseload Disaster.”
Below I will blog what I hear from oral argument, which begins at 10 am ET.
Up first is David Thompson, for the North Carolina Republican legislatures. He’s talking about how the Elections Clause, in his view, gives state legislatures a unique “federal function” when it comes to setting the rules for federal elections.
Justice Thomas opens up by asking Thompson a softball about why there is federal jurisdiction here, compared to if this were review of state redistricting.
Chief Justice Roberts asks a harder question: how can this case be squared with Smiley v. Holm, a case where the state’s governor gets to veto a federal redistricting plan? The governor is not the Legislature, Roberts notes. This undermines the argument of a free-floating legislative power in federal elections. Thompson responds and says the governor’s role is procedural (and that he’s not asking for other precedent to be overruled). Roberts rejects this substance/procedural distinction, seems quite skeptical that Thompson has drawn a distinction with Smiley that works.
Justice Barrett asks whether the substantive/procedural distinction is rooted in the constitution, or is this just a way to show that the cases are not in conflict.
Justice Jackson asks why the question of the state legislature is a creature of the state constitution. She seems skeptical of the distinctions Thompson is drawing. Justice Jackson is trying to draw in the Court originalists to reject Thompson’s free-floating view of the Legislature.
Justice Sotomayor accuses Thompson of “rewriting history.” Clear that Jackson and Sotomayor are opposed to ISLT.
Justice Barrett asks if the Elections Clause didn’t exist, would state legislature have the power to draw the federal districts? If they did, the elections clause is not a delegation. This seems like a question to help Thompson, but I don’t think he understood the point.
Justice Kagan reads Smiley as saying that the Legislature is subject to constraints. Smiley was about the governor as a constraint on the legislature, and this case is about the state court as a constraint. Look at the ordinary constraints. Kagan finds the Legislator’s theory as inconsistent with Smiley, Az. Leg., and Rucho.
As expected, the three Democratic-appointed Justices (Kagan, Jackson, Sotomayor) are rejecting the ISLT.
The three Justices to watch here are Kavanaugh, CJ Roberts, and Barrett. So far, Roberts seems skeptical of Thompson’s arguments under precedent, but Barrett seems more sympathetic. Nothing from Kavanaugh yet. Nothing yet from Gorsuch or Alito either, but they’ve shown themselves already sympathetic to ISLT in earlier emergency cases.
Sotomayor really hammering the substantive-procedural distinction. Justice Jackson piles on, as does the Chief Justice.
Justice Alito says that state courts and state administrators are going to have to figure out how to interpret statutes. (This is the issue I raised in my amicus brief.) Thompson says interpretation of statutes is not at issue in this case, and issues can be delegated to administrators. Alito asks what if a statute says that elections must be free, and a state court rules that the statute bans partisan gerrymandering. But Thompson says no, that would not be allowed. That’s goes against Thompson’s earlier point.
Kavanaugh says that Rehnquist’s position in Bush v. Gore was that state courts can apply a deferential position, and only police the big outliers. Kavanaugh says the Legislators go further here.
