TIMOTHY MOORE, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES, ET AL. v. REBECCA HARPER, ET AL.
No. 21A455
SUPREME COURT OF THE UNITED STATES
March 7, 2022
595 U. S. ____ (2022)
JUSTICE KAVANAUGH, concurring in denial of application for stay.
I agree with JUSTICE ALITO that the underlying Elections Clause question raised in the emergency application is important, and that both sides have advanced serious arguments on the merits. The issue is almost certain to keep arising until the Court definitively resolves it. Therefore, if the Court receives petitions for certiorari raising the issue, I believe that the Court should grant certiorari in an appropriate case—either in this case from North Carolina or in a similar case from another State. If the Court does so, the Court can carefully consider and decide the issue next Term after full briefing and oral argument.
In their emergency application, however, the applicants are asking this Court for extraordinary interim relief—namely, an order from this Court requiring North Carolina to change its existing congressional election districts for the upcoming 2022 primary and general elections. But this Court has repeatedly ruled that federal courts ordinarily should not alter state election laws in the period close to an
For that reason, I concur in the Court‘s denial of the emergency application for stay.
I would grant the application for a stay.
This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court‘s authority to reject rules adopted by a state legislature for use in conducting federal elections. There can be no doubt that this question is of great national importance. But we have not yet found an opportune occasion to address the issue. See, e.g., Democratic National Committee v. Wisconsin State Legislature, 592 U. S. ___ (2020); Scarnati v. Boockvar, 592 U. S. ___ (2020); Moore v. Circosta, 592 U. S. ___ (2020); Wise v. Circosta, 592 U. S. ___ (2020); Bush v. Gore, 531 U. S. 98, 112 (2000) (Rehnquist, C. J., concurring); see also Republican Party of Pennsylvania v. Degraffenreid, 592 U. S. ___ (2021) (THOMAS, J., dissenting from denial of certiorari); id., at ___ (ALITO, J., dissenting from denial of certiorari); Wisconsin State Legislature, 592 U. S., at ___ (GORSUCH, J., concurring). We will have to resolve this question sooner or later, and the sooner we do so, the better. This case presented a good opportunity to consider the issue, but unfortunately the Court has again found the occasion inopportune.
In this case, after North Carolina gained a seat in the House of Representatives, the North Carolina General Assembly twice adopted new congressional districting maps. See 2021 N. C. Sess. Law 174; 2022 N. C. Sess. Law 3. But on both occasions, the State Supreme Court rejected those maps and ultimately ordered that the 2022 election proceed on the basis of a map of the court‘s own creation. See App. to Application for Stay 2a, 13a–14a, 266a (App.). The court justified its actions on the ground that the General Assembly‘s maps constituted partisan gerrymanders and thus violated a congeries of state constitutional provisions.1 But
The most relevant provision states simply that “[a]ll elections shall be free.”
The applicants, who are members of the North Carolina Legislature, contend that the State Supreme Court took it upon itself to decide the “Manner” in which the State‘s congressional elections will be held and that the court therefore usurped the power that the Elections Clause confines to the “Legislature.” The other side answers that state election laws must be interpreted and applied by the state courts, that this is what the State Supreme Court did in this case when it interpreted and applied the State Constitution, and
Both sides advance serious arguments, but based on the briefing we have received, my judgment is that the applicants’ argument is stronger. The question presented is one of federal not state law because the state legislature, in promulgating rules for congressional elections, acts pursuant to a constitutional mandate under the Elections Clause. Cf. Bush, 531 U. S., at 113 (Rehnquist, C. J., concurring) (compliance with the Electors Clause “presents a federal constitutional question“). And if the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections. I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.
The applicants will be irreparably harmed if a stay is not granted because they will be deprived of their constitutional prerogative to draw the congressional map in their State, and the public interest will be disserved if the 2022 congressional elections in North Carolina are held using districts that we eventually determine were unconstitutionally imposed.
This matter came to us only seven days before the deadline for candidates to file on March 4, but promptly granting a stay would have been only minimally disruptive in the circumstances here. The General Assembly‘s remedial map provides that the first map enacted by the Assembly would become effective by operation of law if we “stay[ed]” the orders of the North Carolina Supreme Court. What candidates were required to do by March 4 was to file a short form, and the only change that they would have been required to make had we granted the application was to ensure that the form they submitted specified the district in which they were running under the first plan adopted by
I therefore respectfully dissent from the denial of the stay, but further review of the judgment below may be warranted once a petition for a writ of certiorari is filed.