*1 P R E L I M I N A R Y P R I N T Volume 600 U. S. Part 1 Pages 1–65 OFFICIAL REPORTS OF
THE SUPREME COURT June 27, 2023
REBECCA A. WOMELDORF reporter of decisions NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. *2 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2022 MOORE, in his ofcial capacity as SPEAKER OF
THE NORTH CAROLINA HOUSE OF REPRE- SENTATIVES, et al. v . HARPER et al.
certiorari to the supreme court of north carolina
No. 21–1271. Argued December 7, 2022—Decided June 27, 2023
The Elections Clause of the Federal Constitution requires “the Legisla-
ture” of each State to prescribe the rules governing federal elections.
Art. I, § 4, cl. 1. This case concerns the claim that the Clause vests
state legislatures with authority to set rules governing federal elections
free from restrictions imposed under state law. Following the 2020 de-
cennial census, North Carolina's General Assembly drafted a new fed-
eral congressional map, which several groups of plaintiffs challenged as
an impermissible partisan gerrymander in violation of the North Caro-
lina Constitution. The trial court found partisan gerrymandering
claims nonjusticiable under the State Constitution, but the North Caro-
lina Supreme Court reversed.
Harper Hall
,
Syllabus
ing the Elections Clause and requesting a stay of the North Carolina Supreme Court's decision. This Court declined to issue a stay, but later granted certiorari.
After this Court granted certiorari, the North Carolina Supreme Court issued a decision addressing a remedial map adopted by the trial court. Harper Hall, 383 N. C. 89, 125, 881 S. E. 2d 156, 181 ( Har- per II ). The North Carolina Supreme Court then granted the legisla- tive defendants' request to rehear that remedial decision in Harper II . The court ultimately withdrew the opinion in Harper II concerning the remedial maps and overruled Harper I , repudiating its holding that par- tisan gerrymandering claims are justiciable under the North Carolina Constitution. The court dismissed plaintiffs' claims but did not rein- state the 2021 congressional plans struck down in Harper I under the State Constitution. This Court has entertained two rounds of supple- mental briefng on jurisdictional questions in light of the state court's rehearing proceedings.
Held :
1. This Court has jurisdiction to review the judgment of the North
Carolina Supreme Court in
Harper I
that adjudicated the Federal Elec-
tions Clause issue. A corollary to this Court's jurisdiction over “Cases”
and “Controversies” is that there must exist a dispute “at all stages of
review, not merely at the time the complaint is fled.”
Genesis Health-
Care Corp.
v.
Symczyk
,
This Court also has jurisdiction to review the judgment in Harper I under 28 U. S. C. § 1257(a), which provides that jurisdiction in this Court extends to “[f]inal judgments . . . rendered by the highest court of a
Syllabus
State in which a decision could be had.”
Cox Broadcasting Corp.
v.
Cohn
,
2. The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections.
Marbury v. Madison, 1 Cranch 137, famously proclaimed this Court's authority to invalidate laws that violate the Federal Constitu- tion. But Marbury did not invent the concept of judicial review. State courts had already begun to impose restraints on state legislatures, even before the Constitutional Convention, and the practice continued to mature during the founding era. James Madison extolled judicial review as one of the key virtues of a constitutional system, and the concept of judicial review was so entrenched by the time the Court decided Marbury that Chief Justice Marshall referred to it as one of society's “fundamental principles.” Id. , at 177.
The Elections Clause does not carve out an exception to that funda- mental principle. When state legislatures prescribe the rules concern- ing federal elections, they remain subject to the ordinary exercise of state judicial review. Pp. 19–34.
(a) In Ohio ex rel. Davis v. Hildebrant , 241 U. S. 565, this Court examined the Elections Clause's application to a provision of the Ohio Constitution permitting the State's voters to reject, by popular vote, any law enacted by the State's General Assembly. This Court upheld the Ohio Supreme Court's determination that the Federal Elections Clause did not preclude subjecting legislative acts under the Clause to a popular referendum, rejecting the contention that “to include the ref- erendum within state legislative power for the purpose of apportion- ment is repugnant to § 4 of Article I [the Elections Clause].” Id. , at 569. And in Smiley Holm , 285 U. S. 355, this Court considered the effect of a Governor's veto, pursuant to his authority under the State's Constitution, of a congressional redistricting plan. This Court held that the Governor's veto did not violate the Elections Clause, reasoning that a state legislature's “exercise of . . . authority” under the Elections Clause “must be in accordance with the method which the State has v.
Syllabus
prescribed for legislative enactments.” Id ., at 367. The Court high- lighted that the Federal Constitution contained no “provision of an at- tempt 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.” Id. , at 368. This Court recently reinforced the teachings of Hildebrant and Smi-
ley in Arizona State Legislature v. Arizona Independent Redistricting Comm'n , 576 U. S. 787, a case concerning the constitutionality of an Arizona ballot initiative to amend the State Constitution and to vest redistricting authority in an independent commission. Signifcantly for present purposes, the Court embraced the core principle espoused in Hildebrant and Smiley : Whatever authority was responsible for redis- tricting, that entity remained subject to constraints set forth in the State Constitution. The Court dismissed the argument that the Elec- tions Clause divests state constitutions of the power to enforce checks against the exercise of legislative power.
The basic principle of these cases—refected in
Smiley
's unanimous
command that a state legislature may not “create congressional districts
independently of ” requirements imposed “by the state constitution with
respect to the enactment of laws,”
(b) The precedents of this Court have long rejected the view that legislative action under the Elections Clause is purely federal in charac- ter, governed only by restraints found in the Federal Constitution. The argument to the contrary does not account for the Framers' understand- ing that when legislatures make laws, they are bound by the provisions of the very documents that give them life. Thus, when a state legisla- ture carries out its federal constitutional power to prescribe rules regu- lating federal elections, it acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the state legislature's exercise of power.
This Court's decision in
McPherson Blacker
, 146 U. S. 1, in which
the Court analyzed the Constitution's similarly worded Electors Clause,
is inapposite. That decision did not address any confict between state
constitutional provisions and state legislatures. Nor does
Leser Gar-
nett
,
Syllabus
ject to the ordinary constraints on lawmaking in the state constitution. Pp. 26–30.
(c) Petitioners concede that at least some state constitutional provi- sions can restrain a state legislature's exercise of authority under the Elections Clause, but they read Smiley and Hildebrant to differentiate between procedural and substantive constraints. But neither case drew such a distinction, and petitioners do not in any event offer a defensible line between procedure and substance in this context. Pp. 30–32.
(d) Historical practice confrms that state legislatures remain bound by state constitutional restraints when exercising authority under the Elections Clause. Two state constitutional provisions adopted shortly after the founding expressly constrained state legisla- tive action under the Elections Clause. See Del. Const., Art. VIII, § 2 (1792); Md. Const., Art. XIV (1810). In addition, multiple state consti- tutions at the time of the founding regulated the “manner” of federal elections by requiring that “elections shall be by ballot.” See, e. g. , Ga. Const., Art. IV, § 2. Moreover, the Articles of Confederation—from which the Framers borrowed—provided that “delegates shall be annu- ally appointed in such manner as the legislature of each state shall di- rect.” Art. V. Around the time the Articles were adopted, multiple States regulated the appointment of delegates, suggesting that the Framers did not understand that language to insulate state legislative action from state constitutional provisions. See, e. g. , Del. Const., Art. XI (1776). Pp. 32–34.
3. Although the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, federal courts must not abandon their duty to exercise judicial review. This Court has an obligation to ensure that state court interpretations of state law do not evade federal law. For example, States “may not sidestep the Takings Clause by disavowing traditional property interests.” Phillips v. Washington Legal Foundation , 524 U. S. 156, 167. While the Court does not adopt a test by which state court interpretations of state law can be measured in cases implicating the Elections Clause, 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.
The Court need not decide whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause, as petitioners did not meaningfully present the issue in this Court. Pp. 34–37.
Syllabus
Roberts , C. J., delivered the opinion of the Court, in which Sotomayor , Kagan , Kavanaugh , Barrett , and Jackson , JJ., joined. Kavanaugh , J., fled a concurring opinion, post , p. 38. Thomas , J., fled a dissenting opin- ion in which Gorsuch , J., joined, and in which Alito , J., joined as to Part I, post , p. 40.
David H. Thompson argued the cause for petitioners. With him on the briefs were Peter A. Patterson, Brian W. Barnes, John D. Ohlendorf, and Megan M. Wold.
Neal Kumar Katyal argued the cause for private respond- ents. With him on the brief were Abha Khanna, Lalitha D. Madduri, Jacob D. Shelly, Elisabeth S. Theodore, R. Stanton Jones, Sam Hirsch, Jessica Ring Amunson, Zachary C. Schauf, John R. Wester, Erik R. Zimmerman, Allison J. Riggs, Katherine B. Wellington, William E. Havemann, Leonard R. Powell, Urja Mittal, David J. Bradford, Stephen D. Feldman, Adam K. Doerr, Burton Craige, Narendra K. Ghosh, Hilary H. Klein, Jessica L. Ellsworth, Michael J. West, Tom Boer, and Olivia Molodanof. Donald B. Verrilli, Jr., argued the cause for state re- spondents. With him on the brief were Ryan Y. Park, Solic-
itor General of North Carolina, Sarah G. Boyce, James W. Doggett and Nicholas S. Brod, Deputy Solicitors General, W. Swain Wood, First Assistant Attorney General, South A. Moore, Terence Steed, Mary Carla Babb, and Dax Goldstein .
Solicitor General Prelogar argued the cause for the United States as amicus curiae urging affrmance. With her on the brief were Assistant Attorney General Clarke, Deputy Solicitor General Fletcher, Erica L. Ross, and Bon- nie I. Robin-Vergeer. *
*Briefs of amici curiae urging reversal were fled for the State of Ar- kansas et al. by Leslie Rutledge, Attorney General of Arkansas, Nicholas J. Bronni, Solicitor General, Dylan L. Jacobs, Deputy Solicitor General, and Hannah L. Templin, Assistant Solicitor General, by Mark Brnovich, Attorney General of Arizona, Joseph A. Kanefeld, Brunn W. Roysden III, Solicitor General, Michael S. Catlett, Deputy Solicitor General, and Kate B. Sawyer, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Steve Marshall of Alabama, Derek
Chief Justice Roberts delivered the opinion of the Court.
Several groups of plaintiffs challenged North Carolina's congressional districting map as an impermissible partisan Schmidt of Kansas, Daniel Cameron of Kentucky, Jeff Landry of Louisi- ana, Lynn Fitch of Mississippi, Austin Knudsen of Montana, Douglas J. Peterson of Nebraska, John M. O'Connor of Oklahoma, Alan Wilson of South Carolina, Ken Paxton of Texas, and Sean D. Reyes of Utah; for the American Legislative Exchange Council by Lee E. Goodman ; for Ameri- ca's Future, Inc., by William J. Olson, Jeremiah L. Morgan, Robert J. Olson, and Patrick McSweeney ; for APA Watch by Lawrence J. Joseph ; for the Claremont Institute's Center for Constitutional Jurisprudence by John C. Eastman and Anthony T. Caso ; for the Honest Elections Project by Cameron T. Norris and Thomas R. McCarthy ; for the Lawyers Democ- racy Fund et al. by David B. Rivkin, Jr., E. Mark Braden, and Andrew M. Grossman ; for the Republican National Committee et al. by Jason B. Torchinsky, Edward M. Wenger, and Andrew D. Watkins ; for Restoring Integrity and Trust in Elections, Inc., by John M. Gore and Eric Tung ; for Taxpayers for Honest Elections by David Stevenson Walker II and Philip R. Thomas ; for John R. Ashcroft by Jesus A. Osete ; and for Kim Ward et al. by Anthony R. Holtzman . Briefs of amici curiae urging vacatur were fled for the America First Legal Foundation by Jonathan F. Mitchell, Adam K. Mortara, and Gene P. Hamilton ; for Citizens United et al. by Gary M. Lawkowski, Michael Boos, and Daniel H. Jorjani ; for the National Republican Redistricting Trust by Phillip M. Gordon ; and for the Public Interest Legal Foundation by J. Christian Adams .
Briefs of amici curiae urging affrmance were fled for the District of Columbia et al. by Karl A. Racine , Attorney General of the District of Columbia, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, and Adam J. Tuetken and Arjun P. Ogale, Assistant Attorneys General, by Kwame Raoul, Attorney General of Illinois, Jane Elinor Notz, Solicitor General, and Alex Hemmer, Deputy Solicitor General, and by the Attorneys General for their respective States as follows: Rob Bonta of California, Philip J. Weiser of Colorado, William Tong of Connecticut, Kathleen Jennings of Delaware, Holly T. Shikada of Hawaii, Aaron M. Frey of Maine, Brian E. Frosh of Maryland, Maura Healey of Massachusetts, Dana Nessel of Michigan, Keith Ellison of Min- nesota, Aaron D. Ford of Nevada, Matthew J. Platkin of New Jersey, Hector Balderas of New Mexico, Letitia James of New York, Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Peter F. Neronha of Rhode Island, Susanne R. Young of Vermont, Robert W. Ferguson of gerrymander. The plaintiffs brought claims under North Carolina's Constitution, which provides that “[a]ll elections shall be free.” Art. I, § 10. Relying on that provision, as well as the State Constitution's equal protection, free speech, Washington, and Joshua L. Kaul of Wisconsin; for the American Bar Asso- ciation by Faith Gay, Caitlin J. Halligan, and Deborah Enix-Ross ; for the American Civil Liberties Union et al. by Ari Savitzky, Adriel I. Cepeda Derieux, Sophia Lin Lakin, Dale E. Ho, John W. Whitehead, David Book- binder , Kristi L. Graunke, and David D. Cole ; for the Bipartisan Group of Former Public Offcials et al. by Mary B. McCord, Rupa Bhatta- charyya, and Kelsi Brown Corkran ; for the Brennan Center for Justice at NYU School of Law by Ellyde R. Thompson, Sascha N. Rand, Andrew J. Rossman, Wendy R. Weiser, Thomas P. Wolf, Eliza M. Sweren-Becker, and Kelly M. Percival ; for the Constitutional Accountability Center by Elizabeth B. Wydra, Brianne J. Gorod, and David Gans ; for Current Elec- tion Administrators et al. by Karl J. Sandstrom, Charles G. Curtis, Jr., and Kevin J. Hamilton ; for Democracy and Race Scholars by T. Alora Thomas-Lundborg, Angela M. Liu, and Gregory P. Luib ; for FairDistricts Now by Gregory L. Diskant and Jonah M. Knobler ; for Former Republi- can Offcials et al. by Charles A. Rothfeld, Andrew J. Pincus, Paul W. Hughes , Michael B. Kimberly , and Eugene R. Fidell ; for Law Forward et al. by Mel Barnes, Daniel S. Lenz, Jeffrey A. Mandell, and Douglas M. Poland ; for the League of Women Voters of the United States et al. by Jon Sherman, Michelle Kanter Cohen, Meaghan VerGow, L. Nicole Allan, and Caren E. Short ; for Local Government Law Professors by Joshua A. Rosenthal and Jonathan B. Miller ; for Making Every Vote Count et al. by Robert A. Long, Jr. and Jonathan D. Blake ; for the National Associa- tion of Counties et al. by John J. Korzen ; for Public Citizen by Scott L. Nelson and Allison M. Zieve ; for Retired Four-Star Admirals et al. by Ilana H. Eisenstein ; for Scholars of State Constitutional Law by Christo- pher J. Cariello, Melanie R. Hallums, and Robert Yablon ; for Scholars of the Founding Era by Robert A. Atkins, Walter Rieman, and Jonathan H. Hurwitz ; for State Constitutional Historians et al. by Michael J. Gottlieb and Aaron E. Nathan ; for Akhil Reed Amar et al. by Vikram David Amar, pro se ; for Evan Bernick by Anton Metlitsky ; for Daniel T. Blue, Jr., et al. by Seth P. Waxman, Daniel S. Volchok, Andres C. Salinas, and Debo P. Adegbile ; for Benjamin L. Ginsberg by Marcos Daniel Jiménez ; for Thomas Griffth et al. by Richard D. Bernstein ; for Sen. Amy Klobu- char et al. by David A. O'Neil ; for Derek T. Muller by Daniel M. Sullivan ; for Charles Plambeck et al. by H. David Rosenbloom ; for Michael L. Rosin by Peter K. Stris and Michael N. Donofrio ; for Arnold Schwarzenegger and free assembly clauses, the North Carolina Supreme Court found in favor of the plaintiffs and struck down the legislature's map. The Court concluded that North Caroli- na's Legislature deliberately drew the State's congressional map to favor Republican candidates.
In drawing the State's congressional map, North Caroli- na's Legislature exercised authority under the Elections Clause of the Federal Constitution, which expressly requires “the Legislature” of each State to prescribe “[t]he Times, Places and Manner of ” federal elections. Art. I, § 4, cl. 1. We decide today whether that Clause vests state legislatures by David C. Frederick ; for Stephen M. Shapiro by Mr. Shapiro, pro se ; for William M. Treanor by Brian A. Sutherland ; and for Sen. Sheldon Whitehouse et al. by Gerson H. Smoger .
Briefs of amici curiae were fled for the Anti-Defamation League et al. by John B. Harris, Steven M. Freeman, and Karen Levit ; for the Arizona Independent Redistricting Commission by Brett W. Johnson, Eric H. Spencer, and Tracy A. Olson ; for Bipartisan Current Election Offcials et al. by Mark A. Packman ; for the Boston University Center for Antirac- ist Research et al. by Rebecca MacDowell Lecaroz ; for the Campaign Legal Center et al. by Paul M. Smith, Adav Noti, and Kevin P. Hancock ; for the Conference of Chief Justices by Carter G. Phillips, Virginia A. Seitz, Kathleen M. Mueller, and Evan Caminker ; for the Group of New York Voters by Misha Tseytlin ; for Human Rights Watch by Rishi N. Zutshi ; for the Lawyers' Committee for Civil Rights Under Law et al. by Damon T. Hewitt, Jon M. Greenbaum, Ezra D. Rosenberg, Antony L. Ryan, Helam Gebremariam, David H. Korn, and Evan Norris ; for Law- yers Defending American Democracy by Gershon M. Ratner ; for the NAACP Legal Defense & Educational Fund, Inc., by Janai Nelson, Sam- uel Spital, and Stuart Naifeh ; for the Puerto Rico House of Representa- tives by Emil Rodríguez-Escudero and Jorge Martínez-Luciano ; for the Secretaries of the State of Colorado et al. by Philip J. Weiser, Attorney General of Colorado, Eric R. Olson, Solicitor General, and Michael Kotlar- czyk, Senior Assistant Attorney General; for White House Watch by David W. T. Carroll ; for the Wisconsin Voter Alliance et al. by Erick G. Kaardal ; for Women4Change Indiana, Inc., by Harmony A. Mappes, Stephanie L. Gutwein, Jeffrey P. Justman, and Joseph H. Yeager, Jr. ; for Eugene H. Goldberg by Mr. Goldberg, pro se ; for Richard L. Hasen by Mr. Hasen, pro se ; and for Carolyn Shapiro et al. by Theresa J. Lee and Ruth Greenwood.
with authority to set rules governing federal elections free from restrictions imposed under state law.
I
The Elections Clause provides: “The Times, Places and Manner of holding Elections for Senators and Representa- tives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Ibid . The Clause “imposes” on state legisla- tures the “duty” to prescribe rules governing federal elec- tions. Arizona v. Inter Tribal Council of Ariz., Inc. , 570 U. S. 1, 8 (2013). It also guards “against the possibility that a State would refuse to provide for the election of repre- sentatives” by authorizing Congress to prescribe its own rules. Ibid.
A
The 2020 decennial census showed that North Carolina's population had increased by nearly one million people, en-
titling the State to an additional seat in its federal con-
gressional delegation. U. S. Census Bureau, 2020 Census
Apportionment Results (2021) (Table A). Following those
results, North Carolina's General Assembly set out to re-
draw the State's congressional districts.
North Carolina
League of Conservation Voters, Inc.
v.
Representative Des-
tin Hall
, 21 CVS 015426 etc. (Super. Ct. Wake Cty., N. C.,
Dec. 3, 2021), App. to Pet. for Cert. 260a–261a, rev'd and
remanded on other grounds,
Harper Hall
, 380 N. C. 317,
868 S. E. 2d 499 (2022) (
Harper I
). The General Assembly
also drafted new maps for the State's legislative districts,
including the State House and the State Senate.
Id.
, at 328–
329,
Shortly after the new maps became law, several groups of
plaintiffs—including the North Carolina League of Conser-
vation Voters, Common Cause, and individual voters—sued
in state court. The plaintiffs asserted that each map consti-
tuted an impermissible partisan gerrymander in violation of
the North Carolina Constitution.
Harper I
, 380 N. C., at
329–330, 868 S. E. 2d, at 513–514.
[1]
At trial before a three-
judge panel of the Wake County Superior Court, the plain-
tiffs presented expert testimony and other evidence to sup-
port their claims that North Carolina's General Assembly
drew state legislative and federal congressional maps to
favor Republican candidates.
Id.
, at 332, 868 S. E. 2d, at
515. The trial court agreed, fnding that the General As-
sembly's 2021 congressional districting map was “a partisan
outlier intentionally and carefully designed to maximize Re-
publican advantage in North Carolina's Congressional dele-
gation.”
Id.
, at 345,
The North Carolina Supreme Court reversed, holding that
the legislative defendants violated state law “beyond a rea-
sonable doubt” by enacting maps that constituted partisan
gerrymanders.
Id.
, at 353,
the Supreme Court has concluded partisan gerrymandering claims are nonjusticiable in federal courts,” the court ex- plained, “it does not follow that they are nonjusticiable in North Carolina courts.” Id. , at 361, 868 S. E. 2d, at 533. The State Supreme Court also rejected the argument that the Elections Clause in the Federal Constitution vests exclu- sive and independent authority in state legislatures to draw congressional maps. Id. , at 390– 391, 868 S. E. 2d, at 551–552.
After holding that the 2021 districting maps “substantially
infringe upon plaintiffs' fundamental right to equal voting
power,” the Court struck down the maps and remanded the
case to the trial “court to oversee the redrawing of the maps
by the General Assembly or, if necessary, by the court.”
Id.
,
at 403, 868 S. E. 2d, at 559. The Court entered judgment
on February 15, 2022.
Harper Hall
, No. 413PA21, App.
to Pet. for Cert. 306–309. Two days later, the General As-
sembly adopted a remedial congressional redistricting plan.
See 2022 N. C. Sess. Laws 3, p. 10, § 2. But the trial court
rejected that plan and adopted in its place interim maps de-
veloped by several Special Masters for use in the 2022 North
Carolina congressional elections.
North Carolina League of
Conservation Voters, Inc.
v.
Representative Destin Hall
, 21
CVS 015426 etc. (Super. Ct. Wake Cty., N. C., Feb. 23, 2022),
App. to Pet. for Cert. 278a–279a, aff'd in part, rev'd in part,
and remanded,
Harper Hall
,
On February 25, 2022, the legislative defendants fled an emergency application in this Court, citing the Elections Clause and requesting a stay of the North Carolina Supreme Court's decision. We declined to issue emergency relief but later granted certiorari. 597 U. S. ––– (2022).
B
Following our grant of certiorari, the North Carolina Su-
preme Court heard an appeal concerning the trial court's re-
medial order. In December 2022, the Court issued a deci-
sion affrming in part, reversing in part, and remanding the
case. As relevant, it agreed with the trial court's determi-
nation that the General Assembly's remedial congressional
plan “fell short” of the requirements set forth in
Harper I
.
Harper II
,
The legislative defendants sought rehearing, requesting that the North Carolina Supreme Court “withdraw” its re- medial opinion in Harper II . Pet. for Rehearing in Harper Hall , No. 413PA21, p. 25 (Jan. 20, 2023) (Pet. for Rehear- ing). They also asked the Court to “overrule” its decision in Harper I , although they conceded that doing so would not “negate the force of its order striking down the 2021 plans.” Pet. for Rehearing 24. The North Carolina Supreme Court granted rehearing in Harper II , and we ordered the parties to submit supplemental briefng concerning our jurisdiction over this case in light of that decision.
Following the parties' submission of supplemental briefs
in this Court, the North Carolina Supreme Court issued a
decision granting the requests made by the legislative de-
fendants. The Court withdrew its opinion in
Harper II
,
concerning the remedial maps, and “overruled” its decision
in
Harper I
. See
Harper Hall
,
The North Carolina Supreme Court dismissed the plain-
tiffs' claims with prejudice.
Id.
, at 301,
II
Before turning to the merits, we must “determine as a
threshold matter that we have jurisdiction.”
Goodyear
Atomic Corp.
v.
Miller
,
The North Carolina Supreme Court's decision to withdraw Harper II and overrule Harper I does not moot this case. The plaintiffs here sought to enjoin the use of the 2021 plans enacted by the legislative defendants. Harper I granted that relief, and in doing so rejected the Elections Clause de- fense at issue before us. 380 N. C., at 403, 868 S. E. 2d, at 559. Prior to both the appeal and rehearing proceedings in Harper II , the North Carolina Supreme Court had already entered the judgment and issued the mandate in Harper I . See App. to Pet. for Cert. 306–309. And the time during which the defendants could seek rehearing as to that judg- ment had long since passed. See N. C. Rule App. Proc. 31(a) (2023) (requiring that a rehearing petition be brought within 15 days of the issuance of the mandate). Recognizing this reality, the legislative defendants did not ask the North Car- olina Supreme Court to disturb the judgment in Harper I as part of the rehearing proceedings. They instead acknowl- edged that they would remain bound by Harper I 's decision enjoining the use of the 2021 plans. See Pet. for Rehearing 24 (“[O]verruling Harper I will not negate the force of its order striking down the 2021 plans.”).
The North Carolina Supreme Court “overruled”
Harper I
,
thereby granting the specifc relief requested by the legis-
lative defendants. As a result, partisan gerrymandering
claims are no longer justiciable under the State's Constitu-
tion.
Harper
,
A North Carolina statute with specifc application to this proceeding confrms that the controversy before us remains live. Under state law, if “the United States Supreme Court . . . reverses” the decision in Harper I , the 2021 maps will again become “effective.” 2022 N. C. Sess. Laws 3, p. 10, § 2. We have previously found such trigger provisions—in North Carolina, no less—suffcient to avoid mootness under Arti- cle III. See Hunt Cromartie , 526 U. S. 541, 546, n. 1 (1999) (“Because the State's 1998 law provides that the State will revert to the 1997 districting plan upon a favorable deci- sion of this Court . . . this case is not moot.”).
We also have jurisdiction to review the judgment in
Harper I
under 28 U. S. C. § 1257(a). That statute provides
for this Court's exercise of jurisdiction over “[f]inal judg-
ments or decrees rendered by the highest court of a State in
which a decision could be had.”
Ibid.
We have, however,
“recurringly encountered situations in which the highest
court of a State has fnally determined the federal issue pres-
ent in a particular case, but in which there are further pro-
ceedings in the lower state courts to come.”
Cox Broadcast-
ing Corp. Cohn
,
Cox Broadcasting delineated “at least four categories of such cases in which the Court has treated the decision on the federal issue as a fnal judgment for the purposes of 28 U. S. C. § 1257,” despite “additional proceedings anticipated in the lower state courts.” Ibid. As relevant, the second category includes those “cases . . . in which the federal issue, fnally decided by the highest court in the State, will survive and require decision regardless of the outcome of future statecourt proceedings.” Id. , at 480.
Harper I
fts within this second category of cases de-
scribed in
Cox Broadcasting
. By striking down the 2021
congressional plans enacted by the General Assembly,
Harper I
“fnally decided” the “federal issue” whether the
Elections Clause insulates state legislatures from review by
state courts for compliance with state law. See 380 N. C.,
at 390–391, 868 S. E. 2d, at 551–552. That issue both has
survived and requires decision because subsequent proceed-
ings have neither altered
Harper I
's analysis of the federal
issue nor negated the effect of its judgment striking down
the 2021 plans. In its decision “overruling”
Harper I
, the
North Carolina Supreme Court in fact reaffrmed that it re-
tains the authority to review congressional districting plans
for compliance with state law.
Harper
,
That the North Carolina Supreme Court overruled
Har-
per I
does not affect the judgment in that case for purposes
of § 1257(a). “[T]he res judicata consequences of a fnal, un-
appealed judgment on the merits” are not “altered by the
fact that the judgment may have been wrong or rested on a
legal principle subsequently overruled in another case.”
Federated Department Stores, Inc.
v.
Moitie
, 452 U. S. 394,
398 (1981). The North Carolina Supreme Court has said
much the same.
East Carolina Lumber Co. West
, 247
N. C. 699, 701, 102 S. E. 2d, 248, 249 (1958) (“An erroneous
or irregular judgment binds the parties thereto until cor-
rected in a proper manner.”). That Court did not purport
to alter or amend in any way the judgment in
Harper I
. In
short, the record before us shows that
Harper I
“fnally de-
cided” the Elections Clause issue, which has survived subse-
quent proceedings in the North Carolina Supreme Court
such that it continues to “require decision” by this Court.
Cox Broadcasting
,
Justice Thomas sees it differently. He correctly ob- serves that the North Carolina Supreme Court has now dis- missed the plaintiffs' claims with prejudice. He posits, therefore, that the legislative defendants “are not injured by the judgment of Harper I .” Post , at 45 (dissenting opinion). But the record before us belies that notion. Harper I en- joined the use of the 2021 maps in subsequent elections in North Carolina. Well after the time for seeking rehearing as to that judgment passed, the legislative defendants in- stead sought rehearing with respect to Harper II , a distinct decision concerning remedies. The defendants steadfastly maintained in rehearing proceedings before the North Caro- lina Supreme Court that “overruling Harper I [would] not negate the force of its order striking down the 2021 plans.” Pet. for Rehearing 24; see also Legislative Defendants' Supp. Brief on Rehearing in Harper Hall , No. 413PA21–2, p. 56 (N. C., Feb. 17, 2023) (“[T]he Court's dictate that the 2021 plans may not be used `in any future elections' would not be vacated.”). With those concessions on the record, the North Carolina Supreme Court issued its decision “overruling” Harper I , and—by contrast—“withdraw[ing]” its decision in Harper II . Harper , 384 N. C., at 379, 886 S. E. 2d, at 449. And mirroring their representations before the North Caro- lina Supreme Court, the legislative defendants now maintain in this Court that they continue to remain bound by the judg- ment in Harper I .
In an effort to cast doubt on these consistent representa- tions by the injured party before us, Justice Thomas con- tends that the legislative defendants have already received complete relief because nothing now prevents the implemen- tation of the 2021 maps. Post , at 54 (dissenting opinion). For the reasons stated above, that would come as a surprise to both the legislative defendants and the North Carolina Supreme Court. The dissent also emphasizes that several of the plaintiffs contest our jurisdiction. Post , at 45. But that has been their position from the very beginning, and it did not prevent our granting certiorari. The concessions offered by the legislative defendants as part of the rehearing proceedings, the recent opinion issued by the North Carolina Supreme Court, and the legislative defendants' briefng in this Court all tell the same story: Harper I continues to en- join the use of the 2021 maps. Following the dissent's logic and dismissing this case as moot would foreclose the one path to full relief available to the legislative defendants: A deci- sion by this Court reversing the judgment in Harper I .
This Court has before it a judgment issued by a State's highest court that adjudicates a federal constitutional issue. The defendants did not ask the North Carolina Supreme Court to vacate that judgment, that court did not purport to do so, and the defendants now concede that they remain bound by it. Cox Broadcasting considered our exercise of jurisdiction where the “federal issue . . . will survive and require decision regardless of the outcome of future state- court proceedings.” 420 U. S., at 480. Unlike cases in which we must anticipate what the future might hold, we now know the resolution of the anticipated state court pro- ceedings. The record shows that Harper I fnally decided the Elections Clause question, the judgment in that case con- tinues to bind the parties before us, and the 2021 congres- sional maps would again take effect in North Carolina were we to reverse. Accordingly, we have jurisdiction under both Article III and § 1257(a).
III
The question on the merits is whether the Elections Clause insulates state legislatures from review by state courts for compliance with state law.
Since early in our Nation's history, courts have recognized
their duty to evaluate the constitutionality of legislative acts.
We announced our responsibility to review laws that are
alleged to violate the Federal Constitution in
Marbury
v.
Madison
, proclaiming that “[i]t is emphatically the province
and duty of the judicial department to say what the law is.”
Marbury proclaimed our authority to invalidate laws that violate the Federal Constitution, but it did not fashion this concept out of whole cloth. Before the Constitutional Con- vention convened in the summer of 1787, a number of state courts had already moved “in isolated but important cases to impose restraints on what the legislatures were enacting as law.” G. Wood, The Creation of the American Republic 1776–1787, pp. 454–455 (1969). Although judicial review emerged cautiously, it matured throughout the founding era. These state court decisions provided a model for James Mad- ison, Alexander Hamilton, and others who would later defend the principle of judicial review.
In the 1786 case Trevett v. Weeden , for example, lawyer James Varnum challenged a Rhode Island statute on the ground that it failed to provide the right to a jury trial. Al- though Rhode Island lacked a written constitution, Varnum argued that the State nevertheless had a constitution re- fecting the basic historical rights of the English. And, he contended, the courts must honor “the principles of the con- stitution in preference to any acts of the General Assembly.” J. Varnum, The Case, Trevett v. Weeden, reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History 424 (1971). Varnum won, to the dismay of the State's legisla- ture, which replaced four of the fve judges involved. W. Treanor, Judicial Review Before Marbury , 58 Stan. L. Rev. 455, 478 (2005). His arguments were published as a pam- phlet, which “may well have been the most prominent discus- sion of judicial review at the time of the Philadelphia Consti- tutional Convention.” Id. , at 477.
The North Carolina Supreme Court played its own part in establishing judicial review. In Bayard Singleton , the court considered the constitutionality of a 1785 Act by the State's General Assembly that prevented British loyalists from challenging property seizures before a jury. 1 Mart. 48 (1787). The court held the Act “abrogated and without any effect,” for “it was clear” that the legislature could not pass an Act that “could by any means repeal or alter the constitution.” Id. , at 50. Otherwise, the legislature “would at the same instant of time, destroy their own existence as a Legislature, and dissolve the government thereby estab- lished.” Ibid. James Iredell, who would later serve as an inaugural Justice of this Court, penned at the time an open letter “To the Public” expounding a robust concept of judicial review. 2 Life and Correspondence of James Iredell 145 (1846). “[T]he power of the Assembly,” he wrote, “is limited and defned by the constitution.” Id. , at 146. The legisla- ture, after all, “is a creature of the constitution.” Ibid.
North Carolina and Rhode Island did not stand alone. See, e. g. , Holmes v. Walton (N. J. 1780), described in A. Scott, Holmes vs. Walton : The New Jersey Precedent, 4 Am. Hist. Rev. 456 (1899); State Parkhurst , 9 N. J. L. 427, 444 (1802) (citing Holmes as holding that a statute providing for a six-person jury was “unconstitutional”). All told, “[s]tate courts in at least seven states invalidated state or local laws under their State constitutions before 1787,” which “laid the foundation for judicial review.” J. Sutton, 51 Imperfect So- lutions 13 (2018).
The Framers recognized state decisions exercising judicial review at the Constitutional Convention of 1787. On July 17, James Madison spoke in favor of a federal council of revision that could negate laws passed by the States. He lauded the Rhode Island judges “who refused to execute an unconstitutional law,” lamenting that the State's legislature then “displaced” them to substitute others “who would be willing instruments of the wicked & arbitrary plans of their masters.” 2 Records of the Federal Convention of 1787, p. 28 (M. Farrand ed. 1911). A week later, Madison extolled as one of the key virtues of a constitutional system that “[a] law violating a constitution established by the people them- selves, would be considered by the Judges as null & void.” Id. , at 93. Elbridge Gerry, a delegate from Massachusetts, also spoke in favor of judicial review. (Known for drawing a contorted legislative district that looked like a salamander, Gerry later became the namesake for the “gerrymander.”) At the Convention, he noted that “[i]n some States the Judges had [actually] set aside laws as being agst. the Consti- tution.” 1 id ., at 97 (alteration in original by James Madi- son). Such judicial review, he noted, was met “with general approbation.” Ibid.
Writings in defense of the proposed Constitution echoed
these comments. In the Federalist Papers, Alexander Ham-
ilton maintained that “courts of justice” have the “duty . . .
to declare all acts contrary to the manifest tenor of the Con-
stitution void.” The Federalist No. 78, p. 466 (C. Rossiter
ed. 1961). “[T]his doctrine” of judicial review, he also wrote,
was “equally applicable to most if not all the State govern-
ments.”
Id.
, No. 81, at 482.
State cases, debates at the Convention, and writings de-
fending the Constitution all advanced the concept of judicial
review. And in the years immediately following ratifcation,
courts grew assured of their power to void laws incompati-
ble with constitutional provisions. See Treanor, 58 Stan.
L. Rev., at 473, 497–498. The idea that courts may review
legislative action was so “long and well established” by the
time we decided
Marbury
in 1803 that Chief Justice Marshall
referred to judicial review as “one of the fundamental princi-
ples of our society.”
IV
We are asked to decide whether the Elections Clause carves out an exception to this basic principle. We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.
A
We frst considered the interplay between state constitu-
tional provisions and a state legislature's exercise of author-
ity under the Elections Clause in
Ohio ex rel. Davis
v.
Hilde-
brant
, 241 U. S. 565 (1916). There, we examined the
application to the Elections Clause of a provision of the Ohio
Constitution permitting the State's voters “to approve or
disapprove by popular vote any law enacted by the General
Assembly.”
Id.
, at 566. In 1915, the Ohio General Assem-
bly drew new congressional districts, which the State's vot-
ers then rejected through such a popular referendum.
Asked to disregard the referendum, the Ohio Supreme Court
refused, explaining that the Elections Clause—while “confer-
ring the power therein defned upon the various state legis-
latures”—did not preclude subjecting legislative Acts under
the Clause to “a popular vote.”
State ex rel. Davis
v.
Hilde-
brant
,
We unanimously affrmed, rejecting as “plainly without substance” the contention that “to include the referendum
within state legislative power for the purpose of apportion- ment is repugnant to § 4 of Article I [the Elections Clause].” Hildebrant , 241 U. S., at 569; see also Hawke Smith , 253 U. S. 221, 230–231 (1920) (describing Hildebrant as holding that “the referendum provision of the state constitution when applied to a law redistricting the State with a view to representation in Congress was not unconstitutional”).
Smiley Holm
, decided 16 years after
Hildebrant
, consid-
ered the effect of a Governor's veto of a state redistricting
plan. 285 U. S. 355, 361 (1932). Following the 15th decen-
nial census in 1930, Minnesota lost one seat in its federal
congressional delegation. The State's legislature divided
Minnesota's then nine congressional districts in 1931 and
sent its Act to the Governor for his approval. The Governor
vetoed the plan pursuant to his authority under the State's
Constitution. But the Minnesota Secretary of State never-
theless began to implement the legislature's map for upcom-
v.
ing elections. A citizen sued, contending that the legisla-
ture's map “was a nullity in that, after the Governor's veto,
it was not repassed by the legislature as required by law.”
Id.
, at 362. The Minnesota Supreme Court disagreed. In
its view, “the authority so given by” the Elections Clause “is
unrestricted, unlimited, and absolute.”
State ex rel. Smiley
v.
Holm
,
We unanimously reversed. A state legislature's “exercise of . . . authority” under the Elections Clause, we held, “must be in accordance with the method which the State has pre- scribed for legislative enactments.” Smiley , 285 U. S., at 367. Nowhere in the Federal Constitution could we fnd “provision 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.” Id. , at 368.
Smiley
relied on founding-era provisions, constitutional
structure, and historical practice, each of which we found
persuasive. Two States at the time of the founding pro-
vided a veto power, restrictions that were “well known.”
Ibid.
(citing provisions in Massachusetts and New York).
Subjecting state legislatures to such a limitation “was no
more incongruous with the grant of legislative authority to
regulate congressional elections than the fact that the Con-
gress in making its regulations under the same provision
would be subject to the veto power of the President.”
Ibid.
;
see also
Wesberry Sanders
,
This Court recently reinforced the teachings of Hildebrant and Smiley in a case considering the constitutionality of an Arizona ballot initiative. Voters “amended Arizona's Con- stitution to remove redistricting authority from the Arizona Legislature and vest that authority in an independent com- mission.” Arizona State Legislature Arizona Independ- ent Redistricting Comm'n , 576 U. S. 787, 792 (2015). The Arizona Legislature challenged a congressional map adopted by the commission, arguing that the Elections “Clause pre- cludes resort to an independent commission . . . to accomplish redistricting.” Ibid. A divided Court rejected that argu- ment. The majority reasoned that dictionaries of “the founding era . . . capaciously defne[d] the word `legislature,' ” id. , at 813–814, and concluded that the people of Arizona re- tained the authority to create “an alternative legislative process” by vesting the lawmaking power of redistricting in an independent commission, id. , at 817. The Court ruled, in short, that although the Elections Clause expressly refers to the “Legislature,” it does not preclude a State from vesting congressional redistricting authority in a body other than the elected group of offcials who ordinarily exercise lawmaking power. States, the Court explained, “retain autonomy to es- tablish their own governmental processes.” Id. , at 816.
The signifcant point for present purposes is that the Court
in
Arizona State Legislature
recognized that whatever au-
thority was responsible for redistricting, that entity re-
mained subject to constraints set forth in the State Constitu-
tion. The Court embraced the core principle espoused in
Hildebrant
and
Smiley
“that redistricting is a legislative
function, to be performed in accordance with the State's pre-
scriptions for lawmaking, which may include the referendum
and the Governor's veto.” 576 U. S., at 808; see also
id.
, at
840–841 ( Roberts, C. J. , dissenting) (recognizing that
Hilde-
brant
and
Smiley
support the imposition of “some con-
straints on the legislature”). The Court dismissed the argu-
ment that the Elections Clause divests state constitutions of
the power to enforce checks against the exercise of legisla-
tive power: “Nothing in [the Elections] Clause instructs, nor
has this Court ever held, that a state legislature may pre-
scribe regulations on the time, place, and manner of holding
federal elections in defance of provisions of the State's con-
stitution.”
The reasoning we unanimously embraced in
Smiley
com-
mands our continued respect: A state legislature may not
“create congressional districts independently of ” require-
ments imposed “by the state constitution with respect to the
enactment of laws.”
The legislative defendants and the dissent both contend that, because the Federal Constitution gives state legisla- tures the power to regulate congressional elections, only that Constitution can restrain the exercise of that power. Brief for Petitioners 22; post , at 56 (opinion of Thomas , J.). The legislative defendants cite for support Federalist No. 78, which explains that the wielding of legislative power is con- strained by “the tenor of the commission under which it is exercised.” The Federalist No. 78, at 466; see Tr. of Oral Arg. 4.
This argument simply ignores the precedent just de- scribed. Hildebrant , Smiley , and Arizona State Legisla- ture each rejected the contention that the Elections Clause vests state legislatures with exclusive and independent au- thority when setting the rules governing federal elections.
The argument advanced by the defendants and the dissent
also does not account for the Framers' understanding that
when legislatures make laws, they are bound by the provi-
sions of the very documents that give them life. Legisla-
tures, the Framers recognized, “are the mere creatures of
the State Constitutions, and cannot be greater than their cre-
ators.” 2 Farrand 88. “What are Legislatures? Crea-
tures of the Constitution; they owe their existence to the
Constitution: they derive their powers from the Constitution:
It is their commission; and, therefore, all their acts must be
conformable to it, or else they will be void.”
Vanhorne's
Lessee Dorrance
,
Turning to our precedents, the defendants quote from our analysis of the Electors Clause in McPherson Blacker , 146 U. S. 1 (1892). That Clause—similar to the Elections Clause—provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a [specifed] Number of Electors.” Art. II, § 1, cl. 2. McPherson con- sidered a challenge to the Michigan Legislature's decision to allocate the State's electoral votes among the individual congressional districts, rather than to the State as a whole. We upheld that decision, explaining that in choosing Presi- dential electors, the Clause “leaves it to the legislature ex- clusively to defne the method of effecting the object.” 146 U. S., at 27.
Our decision in McPherson , however, had nothing to do with any confict between provisions of the Michigan Consti- tution and action by the State's legislature—the issue we v. confront today. McPherson instead considered whether Michigan's Legislature itself directly violated the Electors Clause (by taking from the “State” the power to appoint and vesting that power in separate districts), the Fourteenth Amendment (by allowing voters to vote for only one Elector rather than “Electors”), and a particular federal statute. Id. , at 8–9 (argument for plaintiffs in error). Nor does the quote highlighted by petitioners tell the whole story. Chief Justice Fuller's opinion for the Court explained that “[t]he legislative power is the supreme authority except as limited by the constitution of the State .” Id. , at 25 (emphasis added); see also ibid. (“What is forbidden or required to be done by a State is forbidden or required of the legislative power under state constitutions as they exist.”).
The legislative defendants and Justice Thomas rely as
well on our decision in
Leser Garnett
,
But the legislature in Leser performed a ratifying function rather than engaging in traditional lawmaking. The provi- sions at issue in today's case—like the provisions examined in Hildebrant and Smiley —concern a state legislature's ex- ercise of lawmaking power. And as we held in Smiley , when state legislatures act pursuant to their Elections Clause au- thority, they engage in lawmaking subject to the typical con- straints on the exercise of such power. 285 U. S., at 367. We have already distinguished Leser on those grounds. Smiley , 285 U. S., at 365–366. In addition, Leser cited for support our decision in Hawke Smith , which sharply sepa- rated ratifcation “from legislative action” under the Elec- tions Clause. 253 U. S., at 228. Lawmaking under the Elections Clause, Hawke explained, “is entirely different from the requirement of the Constitution as to the expres- sion of assent or dissent to a proposed amendment to the Constitution.” Id. , at 231.
Hawke and Smiley delineated the various roles that the Constitution assigns to state legislatures. Legislatures act as “Consent[ing]” bodies when the Nation purchases land, Art. I, § 8, cl. 17; as “Ratif[ying]” bodies when they agree to proposed Constitutional amendments, Art. V; and—prior to the passage of the Seventeenth Amendment—as “electoral” bodies when they choose United States Senators, Smiley , 285 U. S., at 365; see also Art. I, § 3, cl. 1; Amdt. 17 (providing for the direct election of Senators).
By fulflling their constitutional duty to craft the rules
governing federal elections, state legislatures do not consent,
ratify, or elect—they make laws. Elections are complex af-
fairs, demanding rules that dictate everything from the date
on which voters will go to the polls to the dimensions and
font of individual ballots. Legislatures must “provide a
complete code for congressional elections,” including regula-
tions “relati[ng] to notices, registration, supervision of vot-
ing, protection of voters, prevention of fraud and corrupt
practices, counting of votes, duties of inspectors and canvass-
ers, and making and publication of election returns.”
Smi-
ley
,
In sum, our precedents have long rejected the view that legislative action under the Elections Clause is purely fed- eral in character, governed only by restraints found in the Federal Constitution.
C Addressing our decisions in Smiley and Hildebrant , both
the legislative defendants and Justice Thomas concede that at least some state constitutional provisions can restrain a state legislature's exercise of authority under the Elections Clause. But they read those cases to differentiate between procedural and substantive constraints. Brief for Petition- ers 24; post , at 29 (opinion of Thomas , J.). Smiley , in their view, stands for the proposition that state constitutions may impose only procedural hoops through which legislatures must jump in crafting rules governing federal elections. This concededly “formalistic” approach views the Governor's veto at issue in Smiley as one such procedural restraint. Tr. of Oral Arg. 62. But when it comes to substantive provi- sions, their argument goes, our precedents have nothing to say.
This argument adopts too cramped a view of our decision in Smiley . Chief Justice Hughes's opinion for the Court drew no distinction between “procedural” and “substantive” restraints on lawmaking. It turned on the view that state constitutional provisions apply to a legislature's exercise of lawmaking authority under the Elections Clause, with no concern about how those provisions might be categorized. 285 U. S., at 367–368; see also Hildebrant , 241 U. S., at 569–570.
The same goes for the Court's decision in Arizona State Legislature . The defendants attempt to cabin that case by arguing that the Court did not address substantive limits on the regulation of federal elections. But as in Smiley , the Court's decision in Arizona State Legislature discussed no difference between procedure and substance.
The dissent reads
Smiley
and
Arizona State Legislature
in a different light. Justice Thomas thinks those cases say
nothing about whether a State can impose “substantive lim-
its” on the legislature's exercise of power under the Elections
Clause.
Post
, at 59. But in
Smiley
, we addressed whether
“the conditions which attach to the making of state laws”
apply to legislatures exercising authority under the Elec-
tions Clause. 285 U. S., at 365. We held that they do.
“Much that is urged in argument with regard to the meaning
of the term `Legislature,' ” we explained, “is beside the
point.”
Ibid.
And we concluded in straightforward terms
that legislatures must abide by “restriction[s] imposed by
state constitutions . . . when exercising the lawmaking
power” under the Elections Clause.
Id.
, at 369.
Arizona
State Legislature
said much the same, emphasizing that, by
its text, nothing in the Elections Clause offers state legisla-
tures
carte blanche
to act “in defance of provisions of the
State's constitution.”
The defendants and Justice Thomas do not in any event offer a defensible line between procedure and substance in this context. “The line between procedural and substantive law is hazy.” Erie R. Co. v. Tompkins , 304 U. S. 64, 92 (1938) (Reed, J., concurring in part); see also Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co. , 559 U. S. 393, 419–420 (2010) (Stevens, J., concurring in part and con- curring in judgment). Many rules “are rationally capable of classifcation as either.” Hanna v. Plumer , 380 U. S. 460, 472 (1965); see also Sun Oil Co. Wortman , 486 U. S. 717, 726 (1988) (“Except at the extremes, the terms `substance' and `procedure' precisely describe very little except a dichot- omy.”). Procedure, after all, is often used as a vehicle to achieve substantive ends. When a governor vetoes a bill because of a disagreement with its policy consequences, has the governor exercised a procedural or substantive restraint on lawmaking? Smiley did not endorse such murky inquir- ies into the nature of constitutional restraints, and we see no neat distinction today.
D
Were there any doubt, historical practice confrms that
state legislatures remain bound by state constitutional re-
straints when exercising authority under the Elections
Clause. We have long looked to “settled and established
practice” to interpret the Constitution.
The Pocket Veto
Case
,
Two state constitutional provisions adopted shortly after the founding offer the strongest evidence. Delaware's 1792 Constitution provided that the State's congressional repre- sentatives “shall be voted for at the same places where rep- resentatives in the State legislature are voted for, and in the
same manner.” Art. VIII, § 2. Even though the Elections Clause stated that the “Places” and “Manner” of federal elec- tions shall be “prescribed” by the state legislatures, the Del- aware Constitution expressly enacted rules governing the “places” and “manner” of holding elections for federal offce. An 1810 amendment to the Maryland Constitution likewise embodied regulations falling within the scope of the Elec- tions and Electors Clauses. Article XIV provided that every qualifed citizen “shall vote, by ballot, . . . for electors of the President and Vice-President of the United States, [and] for Representatives of this State in the Congress of the United States.” If the Elections Clause had vested ex- clusive authority in state legislatures, unchecked by state courts enforcing provisions of state constitutions, these clauses would have been unenforceable from the start.
Besides the two specifc provisions in Maryland and Dela- ware, multiple state constitutions at the time of the founding regulated federal elections by requiring that “[a]ll elections shall be by ballot.” Ga. Const., Art. IV, § 2 (1789); see also, e. g. , Pa. Const., Art. III, § 2 (1790); Ky. Const., Art. III, cl. 2 (1792); Tenn. Const., Art. III, § 3 (1796); Ohio Const., Art. IV, § 2 (1803); La. Const., Art. VI, § 13 (1812). These provisions directed the “manner” of federal elections within the mean- ing of the Elections Clause, as Madison himself explained at the Constitutional Convention. See 2 Farrand 240 (“Whether the electors should vote by ballot or vivâ voce” falls within the “great latitude” of “regulating the times places & manner of holding elections”).
The legislative defendants discount this evidence. They argue that those “by ballot” provisions spoke only “to the offces that were created by” state constitutions, and not to the federal offces to which the Elections Clause applies. Tr. of Oral Arg. 18. We fnd no textual hook for that strained reading. “All” meant then what it means now.
In addition, the Framers did not write the Elections Clause on a blank slate—they instead borrowed from the Ar- ticles of Confederation, which provided that “delegates shall be annually appointed in such manner as the legislature of each state shall direct.” Art. V. The two provisions closely parallel. And around the time the Articles were adopted by the Second Continental Congress, multiple States regulated the “manner” of “appoint[ing] delegates,” ibid. , suggesting that the Framers did not understand that language to insu- late state legislative action from state constitutional provi- sions. See Del. Const., Art. XI (1776); Md. Const., Art. XXVII (1776); Va. Const., cls. 3–4 (1776); Pa. Const., § 11 (1776); N. C. Const., Art. XXXVII (1776); Ga. Const., Art. XVI (1777); N. Y. Const., Art. XXX (1777); S. C. Const., Art. XXII (1778); Mass. Const., pt. 2, ch. IV (1780); N. H. Const., pt. II (1784).
The defendants stress an 1820 convention held in Massa-
chusetts to amend the Commonwealth's Constitution. After
a Boston delegate proposed a provision regulating the man-
v.
ner of federal elections, Joseph Story—then a Justice of this
Court—nixed the effort. In Story's view, such a provision
would run afoul of the Elections Clause by “assum[ing] a
control over the Legislature, which the constitution of the
United States does not justify.” Journal of the Debates and
Proceedings in the Convention of Delegates 110 (1853). But
Story's comment elicited little discussion, and refects the
views of a jurist who, although “a brilliant and accomplished
man, . . . was not a member of the Founding generation.”
U. S. Term Limits, Inc.
v.
Thornton
,
V
A
Although we conclude that the Elections Clause does not
exempt state legislatures from the ordinary constraints im-
posed by state law, state courts do not have free rein.
“State courts are the appropriate tribunals . . . for the deci-
sion of questions arising under their local law, whether statu-
tory or otherwise.”
Murdock
v.
Memphis
,
State law, for example, “is one important source” for de- fning property rights. Tyler Hennepin County , 598 U. S. 631, 638 (2023); see also Board of Regents of State Colleges Roth , 408 U. S. 564, 577 (1972) (property rights “are cre- ated and their dimensions are defned by existing rules or understandings that stem from an independent source such as state law”). At the same time, the Federal Constitution provides that “private property” shall not “be taken for pub- lic use, without just compensation.” Amdt. 5. As a result, States “may not sidestep the Takings Clause by disavowing traditional property interests.” Phillips v. Washington Legal Foundation , 524 U. S. 156, 164 (1998); see also Webb's Fabulous Pharmacies, Inc. v. Beckwith , 449 U. S. 155, 164 (1980) (holding that States may not, “by ipse dixit , . . . transform private property into public property without compensation”).
A similar principle applies with respect to the Contracts
Clause, which provides that “[n]o state shall . . . pass any . . .
Law impairing the Obligation of Contracts.” Art. I, § 10,
cl. 1. In that context “we accord respectful consideration
and great weight to the views of the State's highest court.”
Indiana ex rel. Anderson
v.
Brand
, 303 U. S. 95, 100 (1938).
Still, “in order that the constitutional mandate may not be-
come a dead letter, we are bound to decide for ourselves
whether a contract was made.”
Ibid.
; see also
General Mo-
tors Corp.
v.
Romein
,
Cases raising the question whether adequate and inde- pendent grounds exist to support a state court judgment in- volve a similar inquiry. We have in those cases considered whether a state court opinion below adopted novel reasoning to stife the “vindication in state courts of . . . federal consti- tutional rights.” NAACP Alabama ex rel. Patterson , 357 U. S. 449, 457–458 (1958).
Running through each of these examples is the concern that state courts might read state law in such a manner as to circumvent federal constitutional provisions. Therefore, although mindful of the general rule of accepting state court interpretations of state law, we have tempered such defer- ence when required by our duty to safeguard limits imposed by the Federal Constitution.
Members of this Court last discussed the outer bounds of state court review in the present context in Bush Gore , 531 U. S. 98 (2000) ( per curiam ). Our decision in that case turned on an application of the Equal Protection Clause of the Fourteenth Amendment. Id. , at 104–105. In separate v. writings, several Justices addressed whether Florida's Su- preme Court, in construing provisions of Florida statutory law, exceeded the bounds of ordinary judicial review to an extent that its interpretation violated the Electors Clause.
Chief Justice Rehnquist, joined in a concurring opinion by Justice Thomas and Justice Scalia, acknowledged the usual deference we afford state court interpretations of state law, but noted “areas in which the Constitution requires this Court to undertake an independent, if still deferential, analy- sis of state law.” Id. , at 114. He declined to give effect to interpretations of Florida election laws by the Florida Su- preme Court that “impermissibly distorted them beyond what a fair reading required.” Id. , at 115. Justice Souter, for his part, considered whether a state court interpretation “transcends the limits of reasonable statutory interpretation to the point of supplanting the statute enacted by the `leg- islature' within the meaning of Article II.” Id. , at 133 (Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting). We do not adopt these or any other test by which we can measure state court interpretations of state law in cases im- plicating the Elections Clause. The questions presented in this area are complex and context specifc. We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state leg islatures to regulate federal elections.
B
We decline to address whether the North Carolina Su- preme Court strayed beyond the limits derived from the Elections Clause. The legislative defendants did not mean- ingfully present the issue in their petition for certiorari or in their briefng, nor did they press the matter at oral argu- ment. See Bay Area Laundry and Dry Cleaning Pension Trust Fund Ferbar Corp. of Cal. , 522 U. S. 192, 206–208 (1997); see also California Texas , 593 U. S. –––, ––– (2021). 37 Counsel for the defendants expressly disclaimed the argu- ment that this Court should reassess the North Carolina Supreme Court's reading of state law. Tr. of Oral Arg. 7 (“We're not asking this Court to second-guess or reassess. We say take the North Carolina Supreme Court's deci- sion on face value and as fairly refecting North Carolina law . . . .”). When pressed whether North Carolina's Supreme Court did not fairly interpret its State Constitu- tion, counsel reiterated that such an argument was “not our position in this Court.” Id. , at 54. Although counsel at- tempted to expand the scope of the argument in rebuttal, such belated efforts do not overcome prior failures to pre- serve the issue for review. See this Court's Rule 28 (“[C]ounsel making the opening argument shall present the case fairly and completely and not reserve points of sub- stance for rebuttal.”).
* * * State courts retain the authority to apply state constitu- tional restraints when legislatures act under the power con-
ferred upon them by the Elections Clause. But federal courts must not abandon their own duty to exercise judicial review. In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifcally re- served to state legislatures by Article I, Section 4, of the Federal Constitution. Because we need not decide whether that occurred in today's case, the judgment of the North Car- olina Supreme Court is affrmed.
It is so ordered. [2] As noted, supra , at 13–14, the North Carolina Supreme Court with- drew the opinion in Harper II , which addressed both the remedial maps developed by the General Assembly and an order by the trial court imple- menting an interim plan for the 2022 elections. The remedial order, hav- ing been withdrawn, is not before us, and our decision today does not pass on the constitutionality of any particular map adopted by the state courts. v.
Kavanaugh, J. , concurring
Justice Kavanaugh , concurring.
I join the Court's opinion in full. The Court today cor-
rectly concludes that state laws governing federal elections
are subject to ordinary state court review, including for com-
pliance with the relevant state constitution.
Ante
, at 22, 34,
37. But because the Elections Clause assigns authority re-
specting federal elections to state legislatures, the Court
also correctly concludes that “state courts do not have free
rein” in conducting that review.
Ante
, at 34. Therefore, a
state court's interpretation of state law in a case implicating
the Elections Clause is subject to federal court review.
Ante
, at 34–37; see also
Bush
v.
Palm Beach County Can-
vassing Bd.
,
The question, then, is what standard a federal court should employ to review a state court's interpretation of state law in a case implicating the Elections Clause—whether Chief Justice Rehnquist's standard from Bush v. Gore ; Justice Sou- ter's standard from Bush Gore ; the Solicitor General's pro- posal in this case; or some other standard.
Chief Justice Rehnquist's standard is straightforward: whether the state court “impermissibly distorted” state law “beyond what a fair reading required.” Ibid. As I under- stand it, Justice Souter's standard, at least the critical lan- guage, is similar: whether the state court exceeded “the lim- its of reasonable” interpretation of state law. Id. , at 133 (dissenting opinion). And the Solicitor General here has
Kavanaugh, J. , concurring
proposed another similar approach: whether the state court reached a “truly aberrant” interpretation of state law. Brief for United States as Amicus Curiae 27.
As I see it, all three standards convey essentially the same point: Federal court review of a state court's interpretation of state law in a federal election case should be deferential, but deference is not abdication. [1] I would adopt Chief Jus- tice Rehnquist's straightforward standard. As able counsel for North Carolina stated at oral argument, the Rehnquist standard “best sums it up.” Tr. of Oral Arg. 131. Chief Justice Rehnquist's standard should apply not only to state court interpretations of state statutes, but also to state court interpretations of state constitutions. And in reviewing state court interpretations of state law, “we necessarily must examine the law of the State as it existed prior to the action of the [state] court.” Bush , 531 U. S., at 114 (Rehnquist, C. J., concurring).
Petitioners here, however, have disclaimed any argument that the North Carolina Supreme Court misinterpreted the North Carolina Constitution or other state law. See ante , at 37. [2] For now, therefore, this Court need not, and ulti- mately does not, adopt any specifc standard for our review of a state court's interpretation of state law in a case impli- cating the Elections Clause. See ante , at 36 (“We do not adopt these or any other test by which we can measure state [1] I doubt that there would be a material difference in application among the standards formulated by Chief Justice Rehnquist, Justice Souter, and the Solicitor General, given the similarities in the three standards, at least as described above. To be sure, different judges may reach different con- clusions in an individual case about whether a particular state court inter- pretation is impermissible under the chosen standard. But I doubt that the precise formulation of the standard—assuming it is Chief Justice Rehnquist's, Justice Souter's, or the Solicitor General's—would be the de- cisive factor in any such disagreement.
[2] Instead, petitioners make the broader argument, which the Court today properly rejects, that the Elections Clause bars state courts from reviewing state laws for compliance with the relevant state constitution.
Thomas, J. , dissenting
court interpretations of state law in cases implicating the Elections Clause”). Instead, the Court today says simply that “state courts do not have free rein” and “hold[s] only that state courts may not transgress the ordinary bounds of judicial review.” Ante , at 34, 36. In other words, the Court has recognized and articulated a general principle for federal court review of state court decisions in federal election cases. In the future, the Court should and presumably will distill that general principle into a more specifc standard such as the one advanced by Chief Justice Rehnquist.
With those additional comments, I agree with the Court's conclusions that (i) state laws governing federal elections are subject to ordinary state court review, and (ii) a state court's interpretation of state law in a case implicating the Elections Clause is in turn subject to federal court review.
Justice Thomas , with whom Justice Gorsuch joins, and with whom Justice Alito joins as to Part I, dissenting. This Court sits “to resolve not questions and issues but `Cases' or `Controversies.' ” Arizona Christian School Tu- ition Organization v. Winn , 563 U. S. 125, 132 (2011); see U. S. Const., Art. III, § 1. As a corollary of that basic consti- tutional principle, the Court “is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it.” St. Pierre v. United States , 319 U. S. 41, 42 (1943) ( per cu- riam ). To do so would be to violate “the oldest and most consistent thread in the federal law of justiciability.” Flast Cohen , 392 U. S. 83, 96 (1968) (internal quotation marks omitted).
The opinion that the Court releases today breaks that thread. It “affrms” an interlocutory state-court judgment that has since been overruled and supplanted by a fnal judg- ment resolving all claims in petitioners' favor. The issue on which it opines—a federal defense to claims already dis- missed on other grounds—can no longer affect the judgment
Thomas, J. , dissenting
in this litigation in any way. As such, the question is indis- putably moot, and today's majority opinion is plainly advi- sory. Because the writ of certiorari should be dismissed, I respectfully dissent.
I
Here is the case before us in a nutshell: A group of plain- tiffs sued various state offcials under state law. The de- fendants raised both state-law and federal-law defenses. In the interlocutory judgment below, the State Supreme Court rejected both defenses and remanded for further proceed- ings. We granted review to consider the defendants' federal defense. But then, in subsequent proceedings, the state court revisited defendants' alternative state-law defense and held that it was meritorious. As a result, the court fnally adjudicated the whole case in the defendants' favor, dismiss- ing the plaintiffs' claims with prejudice.
This is a straightforward case of mootness. The federal defense no longer makes any difference to this case— whether we agree with the defense, disagree with it, or say nothing at all, the fnal judgment in this litigation will be exactly the same. The majority does not seriously contest that fact. Even so, it asserts jurisdiction to decide this free- foating defense that affects no live claim for relief, reasoning that a justiciable case or controversy exists as long as its opinion can in any way “alter the presently operative stat- utes of ” a State. Ante , at 15 (internal quotation marks omitted). By its own lights, the majority “is acting not as an Article III court,” Uzuegbunam Preczewski , 592 U. S. –––, ––– (2021) ( Roberts , C. J., dissenting), but as an ad hoc branch of a state legislature. That is emphatically not our job. Compare U. S. Const., Art. III, § 1, with N. C. Const., Art. II, § 1.
A
To review the history of this case is to demonstrate that the question presented is moot. In 2021, the North Carolina v.
Thomas, J. , dissenting
General Assembly passed an Act to redistrict the State for elections to the U. S. House of Representatives. Plaintiffs- respondents fled an action in state court, seeking to en- join state elections offcials (defendants-respondents here) from conducting elections in accord with the Act. [1] They based their claim for relief on the North Carolina Con- stitution, which they argued prohibits excessive partisan gerrymanders.
Petitioners, state legislators representing North Carolina's interest in the enforcement of the Act, see N. C. Gen. Stat. Ann. § 1–72.2 (2021); Berger North Carolina State Confer- ence of the NAACP , 597 U. S. –––, –––, ––– – ––– (2022), raised defenses under both state and federal law. As rele- vant here, they argued: (1) that partisan-gerrymandering claims are not justiciable under the North Carolina Constitu- tion; and (2) that the State Constitution cannot restrict the General Assembly's congressional districting legislation under the federal Elections Clause, U. S. Const., Art. I, § 4, cl. 1. Initially, a three-judge trial court endorsed petitioners' state-law defense and entered a fnal judgment dismissing plaintiffs-respondents' claims with prejudice. But, on ap- peal, the North Carolina Supreme Court reversed that judg- ment. See Harper Hall , 380 N. C. 317, 868 S. E. 2d 499 (2022) ( Harper I ). In Harper I , the court held that the 2021 Act violated the State Constitution, enjoined its implementa- tion, and remanded the case to the trial court for remedial proceedings. In doing so, Harper I rejected both petition- ers' state-law justiciability defense and their federal Elec- tions Clause defense.
[1] Technically, there were two state-court actions below. These actions have been consolidated at every stage and can be regarded as one action for all relevant purposes. For simplicity, I will use the singular. Also for simplicity, I focus here on plaintiffs-respondents' challenge to the 2021 congressional districting map, putting aside their parallel challenges to the Assembly's 2021 State House and State Senate maps.
Thomas, J. , dissenting
Petitioners then sought this Court's review of
Harper I
insofar as it rejected their federal defense. From the start,
they faced a signifcant jurisdictional question. Our appel-
late jurisdiction over state courts is limited to “[f]inal judg-
ments or decrees rendered by the highest court of a State in
which a decision could be had.” 28 U. S. C. § 1257(a). But
Harper I
was “a classic example of non-fnality”; it was an
order that resolved the issue of liability and remanded for
remedial proceedings.
Taylor
v.
Board of Ed. of City
School Dist. of New Rochelle
,
Nonetheless, this Court's precedents have recognized “a
limited set of situations” in which “fnality as to [a] federal
issue
” permits our review, even in the absence of a fnal judg-
ment as to the
case
.
O'Dell
v.
Espinoza
,
As it turned out, that assumption was wrong. After
Harper I
, on remand, the trial court adopted a remedial dis-
tricting plan for the 2022 elections. Petitioners then ap-
pealed that order, taking the case to the North Carolina Su-
preme Court for a second time. Initially, the North Carolina
Supreme Court released an opinion applying
Harper I
and
affrming the trial court's decree.
Harper Hall
, 383 N. C.
89,
Thomas, J. , dissenting
premises underlying the decisions in both Harper II and Harper I ,” the court “h[e]ld that partisan gerrymandering claims present a political question that is nonjusticiable under the North Carolina Constitution.” Id. , at 300, 886 S. E. 2d, at 400–401. It concluded:
“This Court's opinion in
Harper I
is overruled. We
affrm the three-judge panel's [original] 11 January 2022
Judgment concluding,
inter alia
, that claims of partisan
gerrymandering present nonjusticiable, political ques-
tions and dismissing all of plaintiffs' claims with preju-
dice. This Court's opinion in
Harper II
is withdrawn
and superseded by this opinion. The three-judge pan-
el's 23 February 2022 order addressing the Remedial
Plans is vacated. Plaintiffs' claims are dismissed with
prejudice.”
Id.
, at 379,
It follows that no live controversy remains before this Court. For any case or controversy to exist here, petition- ers must be injured by the judgment below, and we must be able to redress that injury by acting upon that judgment. See, e. g. , Food Marketing Institute Argus Leader Media , 588 U. S. –––, ––– (2019); see also Ex parte Bollman , 4 Cranch 75, 86 (1807) (“The criterion [of] appellate . . . jur- isdiction, is that it revises and corrects the decisions of
Thomas, J. , dissenting
another tribunal”). But petitioners are not injured by the judgment of Harper I at all, nor could we redress any injury to petitioners by doing anything to it. Whether we accept or reject petitioners' Elections Clause defense, plaintiffs- respondents' claims remain dismissed. As far as this case is concerned, 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 defnition of mootness for an appellate proceeding.
The United States understands this. See Supplemental Letter Brief for United States as Amicus Curiae 3 (May 11, 2023) (“[T]he question this Court granted certiorari to decide is now moot because the Court's resolution of that question could not affect the disposition of this case”). So do the elections offcials whose conduct Harper I once enjoined. Supplemental Brief for State Respondents 1 (May 11, 2023) (“[T]his case is moot”). So, too, do the plaintiffs- respondents who started this case in the frst place. See Letter Brief for North Carolina League of Conservation Vot- ers, Inc., et al. 2 (May 11, 2023) (“The North Carolina Su- preme Court's February 2022 judgment reversing the same January 11, 2022 trial-court judgment that the North Caro- lina Supreme Court just affrmed is now a nullity”); Supple- mental Letter Brief for Rebecca Harper et al. 1 (May 11, 2023) (“Petitioners have won a full victory in state court”). As one group of plaintiffs-respondents put it, “there is no non-frivolous basis for jurisdiction here.” Ibid.
B
The majority does not contest that the Elections Clause issue in this case was only a defense to plaintiffs- respondents' claims for relief. Nor does it deny that Har- per III overruled Harper I and affrmed the very same trial-court judgment that Harper I had reversed. And it con- cedes that, as a result, plaintiffs-respondents' claims have been dismissed in full on state-law nonjusticiability grounds. v.
Thomas, J. , dissenting
Thus, the majority does not contend that its opinion on the Elections Clause issue could make any difference to the fnal judgment “adjudicating all the claims and the rights and lia- bilities of all the parties” in this case. N. C. Rule Civ. Proc. 54(b). That should be the end of the discussion. Because the question presented “cannot affect the rights of [the] liti- gants in the case before [us],” we “are without power to de- cide” it. North Carolina v. Rice , 404 U. S. 244, 246 (1971) ( per curiam ).
Nonetheless, the majority fnds that the judgment below
still presents a live Article III case or controversy; it then
further concludes that the question presented has survived
and requires decision under
Cox Broadcasting
.
[2]
See
ante
,
at 14–19. In doing so, it relies extensively on petitioners'
“representations” that they “remain bound by the judgment
in
Harper I
.”
Ante
, at 18; see also
ante
, at 13, 15. But, of
course, parties' mere representations that they are injured
never carry their “burden of
demonstrating
that they have
standing” in this Court.
TransUnion LLC
v.
Ramirez
, 594
U. S. –––, ––– (2021) (emphasis added). Nor can such repre-
sentations affect our “independent obligation to assure our-
selves that jurisdiction is proper before proceeding to the
merits.”
Plains Commerce Bank
v.
Long Family Land &
Cattle Co.
,
To ensure that it has jurisdiction here, the majority must
explain how petitioners' federal defense could still affect “the
rights of [the] litigants in th[is] case.”
Rice
, 404 U. S., at
246. It fails to do so. Instead, it mostly points to irrelevant
[2]
In this case, these two inquiries are identical, making the majority's
bifurcated analysis somewhat artifcial. To say that an issue “will survive
and require decision,” as
Cox Broadcasting
uses the phrase, simply means
that it will not become moot, generally through some other issue independ-
ently resolving the case (precisely what happened here). See,
e. g.
,
Pierce
County Guillen
,
Thomas, J. , dissenting
facts about the procedural history of this case and misapplies
civil-procedure rules as if
Harper I
and
Harper III
did not
involve the same case. But the error that actually drives
the majority's conclusion is much deeper. The majority evi-
dently thinks that when
Harper I
held the 2021 Act unconsti-
tutional, it entered a “judgment” affecting the 2021 Act
as a
statute
, independent of its application to the legal rights of
the litigants in this case. And the majority thinks that to
reverse
Harper I
's “judgment” would “negate the force of its
order striking down” the Act, thus “alter[ing] the presently
operative statutes of North Carolina.”
Ante
, at 15 (internal
quotation marks omitted). But, of course, the judicial power
does not “operate on legal rules in the abstract”; it operates
on the rights and liabilities of contending parties with ad-
verse legal interests.
California Texas
, 593 U. S. –––, –––
(2021) (internal quotation marks omitted). The majority's
reasoning cannot be squared with the judicial power vested
by the Constitution, the case-or-controversy requirement, or
the nature of judicial review.
I start by clearing away some of the brush. True,
Har-
per III
did not expressly “revisit” the Elections Clause issue,
ante
, at 14; true as well, petitioners did not obtain rehearing
of
Harper I
, see
ante
, at 15. But none of that matters be-
cause
Harper III
's fnal judgment mooted the Elections
Clause issue in this case by dismissing plaintiffs-respondents'
claims on alternative state-law grounds.
[3]
Likewise, the idea
[3]
Incidentally, the majority seriously errs when it says that
Harper III
“reaffrmed”
Harper I
's Elections Clause holding,
ante
, at 17, apparently
referencing
Harper III
's statement that “[t]he General Assembly exer-
cises [redistricting] authority subject to the express limitations in our con-
stitution and in federal law,” 384 N. C., at 336, 886 S. E. 2d, at 422; see
also
ante
, at 14. The only “express limitations”
Harper III
meant were
“Article II, Sections 3 and 5,” of the State Constitution, which address
only state-legislative districts.
Thomas, J. , dissenting
that Harper III did not “alter or amend in any way the judg- ment in Harper I ,” ante , at 17, is both irrelevant and incor- rect. It is irrelevant because our jurisdiction requires a case , and this case is over no matter what becomes of the empty husk of Harper I 's interlocutory judgment. It is in- correct because Harper I 's judgment—reversing the trial court's original judgment and remanding the case—was com- pletely negated by Harper III 's affrmance of the same trial- court judgment.
In the same vein, the majority's suggestion that
Harper I
has any “res judicata consequences” is completely inapposite.
Ante
, at 17 (internal quotation marks omitted). Res judicata
is the principle that “[a] fnal judgment on the merits of an
action” bars relitigation “in [a] second action” of the same
claim or of issues actually litigated and necessary to the
judgment in the frst action.
Federated Department Stores,
Inc.
v.
Moitie
, 452 U. S. 394, 398 (1981); see also
Taylor
v.
Sturgell
,
Thomas, J. , dissenting
is not preclusive in a later action). At the risk of belaboring
the obvious, the clearest proof that
Harper I
was not a fnal
judgment is
Harper III
—which “revisit[ed]”
Harper I
's de-
termination of a “crucial issue in this case,”
How could petitioners still be injured, and what more
could this Court possibly do for them? The majority sug-
gests that the interlocutory injunction issued in
Harper I
still harms petitioners, see
ante
, at 15, 18–19, but that idea
is untenable. To start, the majority overlooks that the in-
junction only ran against the conduct of defendants-
respondents—the state offcials who actually implement elec-
tion laws—not petitioners as legislators. See
Berger
, 597
U. S., at –––. Next, the majority fails to consider what it
would mean if the injunction is still binding: that defendants-
respondents are liable to “be held in contempt and put in
jail” if they ever implement the 2021 Act,
Richmond Cty. Bd.
of Ed.
v.
Cowell
, 254 N. C. App. 422, 426, 803 S. E. 2d 27,
30–31 (2017), even though
Harper III
dismissed this suit's
challenge to the Act as “beyond the reach of [North Caroli-
na's] courts,”
Thomas, J. , dissenting
judgment dismissing every relevant claim for relief.
Rather, the interlocutory injunction (like all interlocutory
orders) merges into the fnal judgment fully “adjudicating all
the claims and the rights
and liabilities
of all the parties”
to the case. N. C. Rule Civ. Proc. 54(b) (emphasis added).
“With the entry of [
Harper III
's] fnal judgment, the life of
[
Harper I
's] injunction came to an end, and it no longer ha[s]
a binding effect on any one.”
Madison Square Garden Box-
ing, Inc. Shavers
,
In any event, the majority's analysis plainly does not turn on the belief that any defendant remains liable to potential contempt sanctions and jail time. Instead, its animating idea (uncritically borrowed from petitioners) is that Har- per I 's “judgment” operated against the 2021 Act as a stat- ute . The majority describes Harper I 's “judgment” inter- changeably as “enjoining the use of the 2021 pla[n]” and “striking down the 2021 pla[n].” Ante , at 15, 17. It then rea- sons that reversing that “judgment” would “negate the force of its order striking down the 2021 pla[n],” thus “alter[ing] the presently operative statutes of North Carolina” such that the 2021 Act would “again take effect.” Ante , at 15 (inter- nal quotation marks omitted). The majority regards this as- pect of Harper I 's “judgment” as entirely independent of Harper III 's fnal resolution of the claims in this case. See ante , at 13–16, 18–19. And it fnds its theory “confrm[ed]” by a proviso in a remedial redistricting Act, passed immedi- ately after Harper I , stating that the 2021 Act would “again become effective” if this Court reversed Harper I . Ante , at 16 (internal quotation marks omitted). In short, the “case or controversy” that the majority thinks is still before us has nothing to do with the parties' rights and liabilities on the claims asserted in this action; rather, it is simply whether a particular legislative Act, which Harper I supposedly made inoperative, will again be “operative” or “effective” as a state statute. Ante , at 15–16 (internal quotation marks omitted).
Thomas, J. , dissenting
This reasoning bears no connection to the judicial power
of this Court or the court below. Judicial power is the
power to adjudicate “defnite and concrete” disputes “touch-
ing the legal relations of parties having adverse legal inter-
ests,”
Rice
,
Indeed, such a conception would contradict the most basic premise of judicial review itself. “[A]n unconstitutional pro- vision is never really part of the body of governing law,” for “the Constitution automatically displaces [it] from the mo- ment of [its] enactment.” Collins Yellen , 594 U. S. –––, ––– (2021) (emphasis added). Thus, when a court holds *53 52 v.
Thomas, J. , dissenting
a statute unconstitutional, it is emphatically not depriving it
of any legal force that it previously possessed as an Act.
The court is only deciding “a particular case” “conform-
ably to the constitution, disregarding” a statute that cannot
“govern the case” because it is already “void.”
Marbury
,
1 Cranch, at 178; accord,
Bayard Singleton
, 1 N. C. 5, 7
(1787) (holding that the unconstitutional “act on which [a par-
ty's] motion was grounded . . . must of course, in that in-
stance, stand as abrogated and without any effect”). “That
is the classic explanation for the basis of judicial review” set
forth in
Marbury
and
Bayard
, and it remains “from that day
to this the sole continuing rationale for the exercise of this
judicial power.”
Mackey United States
,
The majority's theory thus fails twice over, both as a de-
scription of
Harper I
's “judgment” and as an explanation of
how any justiciable controversy could exist in this Court.
The only power that the North Carolina courts exercised at
any stage of this case was that of “determin[ing] the respec-
tive rights and liabilities or duties of litigants in [the] contro-
versy” before them.
Nicholson
,
[5]
Nor did
Harper III
, despite agreeing with petitioners in all other re-
spects, anywhere endorse their belief that some “order striking down the
2021 [Act]” would survive a decision overruling
Harper I
and dismissing
this lawsuit with prejudice.
Ante
, at 13 (internal quotation marks omit-
ted). To the extent that the majority imputes that idea to
Harper III
, it
again seriously misreads that decision. See n. 3,
supra
. The majority
states that
Harper III
“did not reinstate the 2021 congressional pla[n] that
Harper I
had struck down.”
Ante
, at 13 (citing
Harper III
, 384 N. C.,
at 374–378,
Thomas, J. , dissenting
Even if it were, we would still have no case or controversy in front of us. A freestanding “judgment” of statutory in- validation—neutralizing the 2021 Act in some manner tran- scending the fnal determination of the parties' respective rights in this case—would not be a judicial action within the meaning of Article III, and it could not be reviewed in this Court. See Prentis Atlantic Coast Line Co. , 211 U. S. 210, 226–227 (1908). “We sit as a court of law, not a council of revision,” and “[o]ur powers of judicial review are judicial, not legislative, in nature.” Mackey , 401 U. S., at 697 (opin- ion of Harlan, J.). The only power that we ever could have exercised here was to modify the adjudicated rights and lia- bilities of the parties with respect to the claims in this action. Because we plainly cannot do so, no matter what we think about the Elections Clause, this proceeding is moot. And the idea that we could still decide petitioners' moot federal defense because it could “alter the presently operative stat- utes of North Carolina”—even if it cannot affect the ultimate judgment in this action—is wholly foreign to Article III. Ante , at 15 (internal quotation marks omitted).
In that light, the post-
Harper I
remedial Act and its “trig-
ger provisio[n]” plainly can make no difference to our juris-
diction or lack thereof.
Ante,
at 16. When passed, that Act
was essentially a change in the State's conduct under judicial
majority cites had nothing to do with North Carolina's congressional plan.
Instead, it considered whether two state-constitutional provisions, which
require that
state-legislature
districting plans “remain unaltered” until
the next census after they have become “established,” N. C. Const.,
Art. II, §§ 3(4) and 5(4), prevented the Assembly from revising the 2021
state plans that
Harper I
had rejected. See
Harper III
,
Thomas, J. , dissenting
constraint (the result of Harper I ), but with the declared intention of resuming the original conduct if that constraint were removed. That declaration kept the controversy alive while the constraint still existed, as in Hunt Cromartie , 526 U. S. 541, 545, n. 1 (1999). But, after Harper III , there is no more constraint in this case. Harper I has been over- ruled, and plaintiffs-respondents' claims have been dismissed in a fnal judgment. Nothing about this case prevents the State from either enacting or implementing any districting plan. If “the presently operative statutes of North Caro- lina” need to be “alter[ed],” that is the General Assembly's job, not ours. Ante , at 15 (internal quotation marks omit- ted). Regardless, petitioners have fully prevailed in this case, and plaintiffs-respondents have not obtained any en- forceable relief that could affect the conduct of future elections.
Indeed, to the extent the trigger provision adds anything to the majority's analysis, it only underscores the absence of a justiciable case or controversy. [6] A state legislature is free to condition the effectiveness of a change in state law on external events, including this Court's actions in cases prop- erly before it. But, as should be obvious, such a trigger provision cannot be the entire basis of an Article III case or [6] I assume here that the majority is reading the provision correctly, though it is far from clear that this is actually the case. As relevant, the provision stated that the remedial redistricting plan “is effective contin- gent upon its approval or adoption by the [trial court],” “unless the United States Supreme Court or any other federal court reverses or stays [ Harper I ] (or [ Harper I ] is otherwise enjoined, made inoperable, or inef- fective), and in such case [the 2021 Act] is again effective.” 2022 N. C. Sess. Laws 3, p. 10, § 2. The majority's reading is based on three supposi- tions that it does not justify. The frst is that this provision has any refer- ence at all to events after the 2022 elections, to which the remedial Act was exclusively directed. The second is that the dependent clause follow- ing “unless” is applicable even though, under the main clause, the remedial plan was never “adopt[ed]” by the trial court and thus never became “ef- fective.” The third is that Harper III did not “otherwise . . . ma[ke]” Harper I “inoperable, or ineffective.” 55
Thomas, J. , dissenting
controversy. Where, as here, the Court cannot affect the
adjudicated rights and liabilities of the parties in the case
below, a state legislature cannot manufacture a justiciable
controversy by providing that state law will change in some
way depending on how this Court answers a moot question.
That would simply be a roundabout way of asking this Court
to render an advisory opinion. But “federal courts cannot
give answers simply because someone asks.”
Uzuegbunam
,
592 U. S., at ––– ( Roberts , C. J., dissenting). That is true
when the request comes from Congress, see
Muskrat
v.
United States
,
In sum, there is no issue before this Court that can affect the judgment in this action. As such, the question pre- sented is moot, and the writ of certiorari should be dismissed.
II
I would gladly stop there. The majority's views on the merits of petitioners' moot Elections Clause defense are of
far less consequence than its mistaken belief that Article III authorizes any merits conclusion in this case, and I do not wish to belabor a question that we have no jurisdiction to [7] The idea of deciding an issue to determine whether a statute shall be effective is not unprecedented, but the precedents do not aid the majority. At times, state legislatures have enacted laws contingent on state-court opinions approving their constitutionality—in fact, such legislation pro- duced the frst two opinions addressing the Elections Clause question here (which both reached the opposite conclusion from today's majority). See Act No. 5, 1863 Vt. Acts & Resolves p. 7, approved, Opinion of Judges , 37 Vt. 665 (1864); 1864 N. H. Laws p. 3061, approved, In re Opinions of Justices , 45 N. H. 595 (1864); see also In re Plurality Elections , 15 R. I. 617, 8 A. 881 (1887) (similar situation and conclusion). Those opinions have always been understood as “advisory opinions.” See, e. g. , In re Constitutionality of House Bill 88 , 115 Vt. 524, 528–529, 64 A. 2d 169, 171–172 (1949); Goodell Judith Basin County , 70 Mont. 222, 231, 224 P. 1110, 1112 (1924). Such advisory opinions may be authorized by some state constitutions, but Article III gives this Court no such power. v.
Thomas, J. , dissenting
decide. Nonetheless, I do not fnd the majority's merits rea- soning persuasive.
The Elections Clause of the Constitution provides that “[t]he Times, Places and Manner of holding Elections for Sen- ators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Art. I, § 4, cl. 1. The question presented was whether the people of a State can place state-constitutional limits on the times, places, and manner of holding congressional elections that “the Legisla- ture” of the State has the power to prescribe. Petitioners said no. Their position rests on three premises, from which the conclusion follows.
The frst premise is that “the people of a single State” lack
any ability to limit powers “given by the people of the United
States” as a whole.
McCulloch
v.
Maryland
,
The second premise is that regulating the times, places,
and manner of congressional elections “ `is no original pre-
rogative of state power,' ” so that “such power `had to be
delegated to, rather than reserved by, the States.' ”
Cook
v.
Gralike
, 531 U. S. 510, 522 (2001) (frst quoting 1 J. Story,
Commentaries on the Constitution of the United States § 627
(3d ed. 1858) (Story); then quoting
U. S. Term Limits, Inc.
v.
Thornton
,
Thomas, J. , dissenting
such power, as “[n]o other constitutional provision gives the States authority over congressional elections.” Cook , 531 U. S., at 522–523; see also United States v. Classic , 313 U. S. 299, 315 (1941) (“While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states, this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by [the Elections Clause]” (citations omitted)).
The third premise is that “the Legislature thereof ” does
not mean the people of the State or the State as an undiffer-
entiated body politic, but, rather, the lawmaking power as it
exists under the State Constitution. This premise comports
with the usual constitutional meanings of the words “State”
and “Legislature,” as well as this Court's precedents. “A
state, and the legislature of a state, are quite different politi-
cal beings.” Story § 628. “A state, in the ordinary sense of
the Constitution, is a political community of free citizens . . .
organized under a government sanctioned and limited by a
written constitution.”
Texas
v.
White
, 7 Wall. 700, 721
(1869). “ `Legislature,' ” on the other hand, generally means
“ `the representative body which ma[kes] the laws of the peo-
ple.' ”
Smiley
v.
Holm
, 285 U. S. 355, 365 (1932) (quoting
Hawke Smith
,
To be sure, the precise constitutional signifcance of the word “Legislature” depends on “the function to be per- formed” under the provision in question. Smiley , 285 U. S., at 365. Because “the function contemplated by” the Elec- tions Clause “is that of making laws,” id. , at 366, this Court's Elections Clause cases have consistently looked to a State's written constitution to determine the constitutional actors in whom lawmaking power is vested. See Arizona State Legislature v. Arizona Independent Redistricting Comm'n , 576 U. S. 787, 795–796, 814 (2015); Smiley , 285 U. S., at 363; Ohio ex rel. Davis Hildebrant , 241 U. S. 565, 566–568
Thomas, J. , dissenting
(1916). [8] The defnitions that most precisely explain this Court's holdings were given in a state-court case that antici- pated Hildebrant and Smiley by several years: “[T]he word `Legislature,' as used in [the Elections Clause] means the lawmaking body or power of the state, as established by the state Constitution,” or, put differently, “that body of persons within a state clothed with authority to make the laws.” State ex rel. Schrader Polley , 26 S. D. 5, 10–11, 127 N. W. 848, 850–851 (1910).
If these premises hold, then petitioners' conclusion follows: In prescribing the times, places, and manner of congressional elections, “the lawmaking body or power of the state, as es- tablished by the state Constitution,” id. , at 10, 127 N. W., at 850, performs “a federal function derived from the Federal Constitution,” which thus “transcends any limitations sought to be imposed by the people of a State,” Leser , 258 U. S., at 137. As shown, each premise is easily supported and con- sistent with this Court's precedents. Petitioners' conclusion [8] The only complications with this approach have arisen where a State Constitution did not vest the legislative power wholly in a single repre- sentative body, as the Federal Constitution appears to presuppose. Thus, in Hildebrant , the Court rejected as nonjusticiable an argument “that to include the referendum within state legislative power for the purpose of apportionment” was “repugnant to” the Elections Clause. 241 U. S., at 569. Somewhat similarly, in Arizona State Legislature , the Court faced a State Constitution “in which the people of a State exercise legislative power coextensive with the authority of an institutional legislature,” 576 U. S., at 819, with the majority “see[ing] no constitutional barrier to a State's empowerment of its people by embracing that form of lawmaking,” id. , at 808–809. As relevant to identifying the State's “Legislature,” the majority opinion emphasized that Arizona's written Constitution “ `estab- lishes the electorate of Arizona as a coordinate source of legislation' on equal footing with the representative legislative body,” id. , at 795 (alter- ation omitted), and thus held that “lawmaking power in Arizona includes the initiative process,” id. , at 793; see also id. , at 814. No such complica- tions exist in North Carolina, where the State Constitution simply pro- vides that “[t]he legislative power of the State shall be vested in the Gen- eral Assembly.” Art. II, § 1. 59
Thomas, J. , dissenting
also mirrors the Court's interpretation of parallel language
in the Electors Clause
[9]
in
McPherson Blacker
,
The majority rejects petitioners' conclusion, but seemingly without rejecting any of the premises from which that con- clusion follows. Its apparent rationale—that Hildebrant , Smiley , and Arizona State Legislature have already fore- closed petitioners' argument—is untenable, as it requires disregarding a principled distinction between the issues in those cases and the question presented here. In those cases, the relevant state-constitutional provisions addressed the al- location of lawmaking power within each State; they defned what acts, performed by which constitutional actors, consti- tuted an “exercise of the lawmaking power.” Smiley , 285 U. S., at 364; cf. U. S. Const., Art. I, § 7, cl. 2 (describing the processes upon completion of which a bill “become[s] a Law”). In other words, those cases addressed how to iden- tify “the Legislature” of each State. But, nothing in their holdings speaks at all to whether the people of a State can impose substantive limits on the times, places, and manner that a procedurally complete exercise of the lawmaking power may validly prescribe. These are simply different questions: “There is a difference between how and what .” J. Kirby, Limitations on the Power of State Legislatures [9] The Electors Clause provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” for the election of the President and Vice President. Art. II, § 1, cl. 2.
[10] Contrary to the majority's suggestion of ambiguity, see
ante
, at 27–28,
this statement can only have meant that the state legislature's power to
direct the manner of appointing electors may not be limited by the state
constitution. No other “limitation upon the State” is possible, for, as the
McPherson
Court said just a few sentences earlier, “the constitution of
the State” is the only “authority” that ordinarily “limit[s]” “[t]he legisla-
tive power.”
Thomas, J. , dissenting
Over Presidential Elections, 27 Law & Contemp. Prob. 495, 503 (1962).
This is not an arbitrary distinction, but one rooted in the logic of petitioners' argument. No one here contends that the Elections Clause creates state legislatures or defnes “the legislative process” in any State. Smiley , 285 U. S., at 369. Thus, while the Elections Clause confers a lawmaking power, “the exercise of th[at] authority must” follow “the method which the State has prescribed for legislative enact- ments.” Id. , at 367. But, if the power in question is not original to the people of each State and is conferred upon the constituted legislature of the State, then it follows that the people of the State may not dictate what laws can be enacted under that power—precisely as they may not dictate what constitutional amendments their legislatures can ratify under Article V. See Leser , 258 U. S., at 137. [11] Accord- ingly, if petitioners' premises hold, then state constitutions may specify who constitute “the Legislature” and prescribe how legislative power is exercised, but they cannot control what substantive laws can be made for federal elections.
The majority indicates that it does not perceive this dis-
tinction between “substantive” and “procedural” rules, see
ante
, at 30–32,
[12]
illustrating its doubts with a rhetorical ques-
[11]
The majority states that
Smiley
“already distinguished”
Leser
as in-
volving a nonlawmaking function.
Ante
, at 28. But
Smiley
distin-
guished the “electoral,” “ratifying,” and “consenting” functions of state
legislatures from their “lawmaking” function under the Elections Clause,
[12] This admission carries troubling implications for other felds, as com- parable “distinction[s] between procedure and substance [are] not un- known in the law.” United States Kras , 409 U. S. 434, 463, n. 6 (1973)
Thomas, J. , dissenting
tion: “When a governor vetoes a bill because of a disagree-
ment with its policy consequences, has the governor exer-
cised a procedural or substantive restraint on lawmaking?”
Ante
, at 31–32. The answer is straightforward: The power
of approving or vetoing bills is “a part of the legislative proc-
ess” because it is “a part in the making of state laws.”
Smi-
ley
, 285 U. S., at 368–369; see also
INS
v.
Chadha
, 462 U. S.
919, 933, 951, 954, 957, n. 22, 958 (1983) (repeatedly referring
to bicameralism and presentment as the “procedure” or “pro-
cedures” of lawmaking). A Governor's
motives
for vetoing
a certain bill are irrelevant to the effect of the veto as part
of the legislative process, just as the motives that may lead
one house of the legislature to reject a bill passed by the
other house are irrelevant to the effect of its doing so. Put
simply, when this power is conferred on the Governor of a
State, it “makes him in effect a third branch
of the legisla-
ture
.” T. Cooley, General Principles of Constitutional Law
50 (1880) (emphasis added); accord,
Arizona State Legisla-
ture
, 576 U. S., at 833 ( Roberts , C. J., dissenting) (noting
that “approving [and] vetoing bills” are “legislative func-
tions”);
Chadha
, 462 U. S., at 947 (explaining that “lawmak-
ing” is “a power . . . shared by both Houses and the Presi-
dent”);
La Abra Silver Mining Co.
v.
United States
, 175 U. S.
423, 453 (1899) (noting that Presidential approval “is legisla-
tive in its nature”); cf. 1 W. Blackstone, Commentaries on the
(Marshall, J., dissenting). For example, our habeas corpus jurisprudence
has long distinguished “substantive” constitutional rules from “proce-
dural” ones.
Schriro
v.
Summerlin
, 542 U. S. 348, 352, 353 (2004). Our
sentencing appellate review jurisprudence similarly recognizes a distinc-
tion between the “procedura[l] sound[ness]” of a sentencing decision and
“the substantive reasonableness of the sentence imposed.”
Gall
v.
United
States
, 552 U. S. 38, 51 (2007). And, no less essential a statute than the
Rules Enabling Act presupposes a meaningful distinction between “rules
of practice and procedure” and matters of “substantive right.” 28 U. S. C.
§§ 2072(a) and (b). Indeed, the constitutionality of the Act rests upon this
very distinction. See
Hanna Plumer
, 380 U. S. 460, 470–472 (1965);
Sibbach Wilson & Co.
,
Thomas, J. , dissenting
Laws of England 150 (1765) (“[T]he king is himself a part of
the parliament”). This is a question of
who
, not
what
, and
thus is “a matter of state polity” as far as the Elections
Clause is concerned.
Smiley
,
But substantive constraints on what the lawmaking power can do (gubernatorial approval included) demand an entirely different justifcation—one that the majority never provides. It does not overrule Cook and Thornton to hold that the power to prescribe times, places, and manner for congres- sional elections is an original power of the people of each State. Nor does it hold that the people are themselves “the Legislature” to which the Federal Constitution delegates that power. See ante , at 25–26. Indeed, the majority de- votes little attention to the source and recipient of the power described in the Elections Clause, notwithstanding their di- rect relevance to the question presented.
Instead, the majority focuses on the power of state courts to exercise “judicial review” of Elections Clause legislation. See ante , at 19–22, 34–37. But that power sheds no light on the question presented. In every case properly before it, any court—state or federal—must ascertain and apply the substantive law that properly governs that case. Thus, the court naturally must apply the Federal Constitution rather than any statute in confict with it. The court must also apply the state constitution over any conficting statute enacted under a power limited by that constitution. Peti- tioners' argument, however, is that legislation about the times, places, and manner of congressional elections is not limited by state constitutions—because the power to regu- late those subjects comes from the Federal Constitution, not the people of the State. Right or wrong, this question has nothing to do with whether state courts have the power to conduct judicial review in the frst place. To say that “state judicial review” authorizes applying state constitutions over conficting Elections Clause legislation, ante , at 22, is simply to assume away petitioners' argument.
Thomas, J. , dissenting III The majority opinion ends with some general advice to state and lower federal courts on how to exercise “judicial review” “in cases implicating the Elections Clause.” Ante , at 36. As the majority offers no clear rationale for its inter- pretation of the Clause, it is impossible to be sure what the consequences of that interpretation will be. However, judg- ing from the majority's brief sketch of the regime it envi- sions, I worry that today's opinion portends serious troubles ahead for the Judiciary.
The majority uses the separate writings in Bush Gore , 531 U. S. 98 (2000) ( per curiam ), as a loose touchstone for the kind of judicial review that it apparently expects federal courts to conduct in future cases like this one. On its face, this is an awkward analogy, for there is a signifcant differ- ence between Bush and Harper I . In Bush , the state court's judgment was based on an interpretation of state statutory law, enacted by the state legislature. Thus, the relevant Electors Clause question was whether, in doing so,
the state court had departed from “the clearly expressed intent of the legislature,” 531 U. S., at 120 (Rehnquist, C. J., concurring), “impermissibly distort[ing]” the legislature's enactments “beyond what a fair reading required,” id. , at 115. In Harper I , by contrast, there was no doubt that the state court departed from the clearly expressed intent of the legislature; it rejected the legislature's enactment as unconstitutional.
By doing so, today's majority concludes, Harper I did not commit per se error, as the Elections Clause permits state courts to apply substantive state-constitutional provisions to the times, places, and manner of federal elections. At the same time, state courts are warned that they operate under federal-court supervision, lest they “transgress the ordinary bounds of judicial review such that they arrogate to them- selves the power vested in state legislatures to regulate fed- eral elections.” Ante , at 36. Thus, under the majority's
Thomas, J. , dissenting
framework, it seems clear that the statutory-interpretation review forecast in Bush (or some version of it) is to be ex- tended to state constitutional law.
In this way, the majority opens a new feld for Bush -style controversies over state election law—and a far more uncer- tain one. Though some state constitutions are more “pro- li[x]” than the Federal Constitution, it is still a general fea- ture of constitutional text that “only its great outlines should be marked.” McCulloch , 4 Wheat., at 407. When “it is a constitution [courts] are expounding,” ibid. , not a detailed statutory scheme, the standards to judge the fairness of a given interpretation are typically fewer and less defnite.
Nonetheless, the majority's framework appears to demand that federal courts develop some generalized concept of “the bounds of ordinary judicial review,” ante , at 36; apply it to the task of constitutional interpretation within each State; and make that concept their rule of decision in some of the most politically acrimonious and fast-moving cases that come before them. In many cases, it is diffcult to imagine what this inquiry could mean in theory, let alone practice. For example, suppose that we were reviewing Harper I under this framework. Perhaps we could have determined that reading justiciable prohibitions against partisan gerryman- dering into the North Carolina Constitution exceeded the bounds of ordinary judicial review in North Carolina; per- haps not. If not, then, in order to ensure that Harper I had not “arrogate[d]” the power of regulating federal elections, ante , at 36, we would presumably have needed to ask next whether it exceeded the bounds of ordinary judicial review in North Carolina to fnd that the specifc congressional map here violated those prohibitions. After all, in constitutional judgments of this kind, it can be diffcult to separate the rule from the fact pattern to which the rule is applied. We have held, however, that federal courts are not equipped to judge partisan-gerrymandering questions at all . Rucho Com- mon Cause , 588 U. S. –––, ––– (2019). It would seem to fol-
Thomas, J. , dissenting
low, a fortiori , that they are not equipped to judge whether a state court's partisan-gerrymandering determination sur- passed “the bounds of ordinary judicial review.”
Even in cases that do not involve a justiciability mismatch, the majority's advice invites questions of the most far- reaching scope. What are “the bounds of ordinary judicial review”? What methods of constitutional interpretation do they allow? Do those methods vary from State to State? And what about stare decisis —are federal courts to review state courts' treatment of their own precedents for some sort of abuse of discretion? The majority's framework would seem to require answers to all of these questions and more.
In the end, 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. In most cases, it seems likely that “the bounds of ordinary judi- cial review” will be a forgiving standard in practice, and this federalization of state constitutions will serve mainly to swell federal-court dockets with state-constitutional ques- tions to be quickly resolved with generic statements of defer- ence to the state courts. On the other hand, there are bound to be exceptions. They will arise haphazardly, 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.
I would hesitate long before committing the Federal Judi-
ciary to this uncertain path. And I certainly would not do
so in an advisory opinion, in a moot case, where “the only
function remaining to the court is that of announcing the fact
and dismissing the cause.”
Ex parte McCardle
,
I respectfully dissent.
Reporter’s Note
The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made: p. 21, line 1, “Mort.” is changed to “Mart.” p. 50, line 16, “ma[p]” is changed to “pla[n]” p. 65, line 18, the frst instance of “the” is deleted