Argument Analysis
After nearly three hours of oral arguments in Moore v. Harper, one thing became abundantly clear: the Court has been asking the wrong questions about the Elections Clause. All of the justices struggled to clarify the issue before them. Was the North Carolina Legislature arguing that its state courts had interfered with a procedural right versus a substantive right? If a gubernatorial veto of a proposed map is consistent with the Constitution, why isn’t a veto by other political bodies? Why can’t a state’s judiciary apply state constitutional provisions when reviewing political maps? The justices struggled to find a way to reconcile century-old precedent and the evolution of popular democracy at the state and local level during the 20th Century.
The question the Court should have been focused on is why, even if the North Carolina Supreme had correctly applied North Carolina’s Constitution when reviewing maps, did it seek to engage in the legislative function of map drawing rather than allowing federal law to control the outcome as Congress has directed consistent with Article I, Section 4 of the Constitution and thus provide a judicial remedy?
All courts, even state courts with broad general subject matter jurisdiction, can only adjudicate claims for which they can provide a remedy. Assuming as a matter of undisputed fact that the first map drawn by the North Carolina General Assembly was unconstitutional under North Carolina law, the remedy would have been limited to the map being set aside and the Legislature being tasked with drawing a new map. This was in fact the initial remedy. It was during the litigation involving the second map that the North Carolina judiciary took to drawing a map through the use of outside experts.
We’re All Textualists Now
Justice Kagan once quipped, “We’re all textualists now.” If her words prove prophetic, the Court might have an easier time disentangling the Gordian Knot at the heart of Moore v. Harper: even if state legislatures are not constitutionally distinct from their states, the North Carolina Supreme Court erred because it failed to provide the remedy available under federal law. 2 U.S.C. § 2a(c) addresses every circumstance for allocating representatives in the event a state fails to adopt a map on time:
(c) Until a State is redistricted in the manner provided by the law thereof after any apportionment, the Representatives to which such State is entitled under such apportionment shall be elected in the following manner: (1) If there is no change in the number of Representatives, they shall be elected from the districts then prescribed by the law of such State, and if any of them are elected from the State at large they shall continue to be so elected; (2) if there is an increase in the number of Representatives, such additional Representative or Representatives shall be elected from the State at large and the other Representatives from the districts then prescribed by the law of such State; (3) if there is a decrease in the number of Representatives but the number of districts in such State is equal to such decreased number of Representatives, they shall be elected from the districts then prescribed by the law of such State; (4) if there is a decrease in the number of Representatives but the number of districts in such State is less than such number of Representatives, the number of Representatives by which such number of districts is exceeded shall be elected from the State at large and the other Representatives from the districts then prescribed by the law of such State; or (5) if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large.
The Court could rely purely on statutory interpretation to resolve the merits of the case without having to delve into the Independent State Legislature Theory (“ISLT”).
In the final part of this series, I will analyze the Court’s opinion and outline some potential solutions to state and local political gerrymandering under the federal constitution.