*1 OCTOBER TERM, 2022 (Slip Opinion)
Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See
United States
v.
Detroit Timber & Lumber Co.,
Syllabus
MOORE, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES,
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 elec-
tions free from restrictions imposed under state law. Following the
2020 decennial census, North Carolina’s General Assembly drafted a
new federal congressional map, which several groups of plaintiffs chal-
lenged as an impermissible partisan gerrymander in violation of the
North Carolina Constitution. The trial court found partisan gerry-
mandering claims nonjusticiable under the State Constitution, but the
North Carolina Supreme Court reversed.
Harper
v.
Hall
, 380 N. C.
317,
After this Court granted certiorari, the North Carolina Supreme
Court issued a decision addressing a remedial map adopted by the trial
court.
Harper Hall,
Syllabus
defendants’ request to rehear that remedial decision in Harper II . The court ultimately withdrew the opinion in Harper II concerning the re- medial 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 briefing 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
Elections 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 filed.”
Genesis
HealthCare Corp.
v.
Symczyk
, 569 U. S. 66, 71 (internal quotation
marks omitted). The North Carolina Supreme Court’s decision to
withdraw
Harper II
and overrule
Harper I
does not moot this case.
Prior to the appeal and rehearing proceedings in
Harper II
, the court
had already entered the judgment and issued the mandate in
Harper
I
, and the legislative defendants acknowledged that they would remain
bound by
Harper I
’s decision enjoining the use of the 2021 plans. When
the North Carolina Supreme Court “overruled”
Harper I
as part of the
rehearing proceedings, it repudiated
Harper I
’s conclusion that parti-
san gerrymandering claims are justiciable under the North Carolina
Constitution. But the court did not purport to alter or amend the judg-
ment in
Harper I
enjoining the use of the 2021 maps. Were this Court
to reverse
Harper I
, the 2021 plans would again take effect. Because
the legislative defendants’ path to complete relief runs through this
Court, the parties continue to have a “personal stake in the ultimate
disposition of the lawsuit” sufficient to maintain this Court’s jurisdic-
tion.
Chafin Chafin
,
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 State in which a decision could be had.”
Cox Broadcasting Corp.
Cohn
,
Syllabus
neither altered Harper I ’s analysis of the federal issue nor negated the effect of the Harper I judgment striking down the 2021 plans, that is- sue both has survived and requires decision by this Court. Pp. 6–11.
2. The Elections Clause does not vest exclusive and independent au- thority 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 de- cided Marbury that Chief Justice Marshall referred to it as one of so- ciety’s “fundamental principles.” Id. , at 177..
The Elections Clause does not carve out an exception to that fun- damental principle. When state legislatures prescribe the rules con- cerning federal elections, they remain subject to the ordinary exercise of state judicial review. Pp. 11–26.
(a) In
Ohio ex rel. Davis Hildebrant
,
This Court recently reinforced the teachings of
Hildebrant
and
Smi-
ley
in
Arizona State Legislature Arizona Independent Redistricting
Comm’n
,
Syllabus
for present purposes, the Court embraced the core principle espoused in Hildebrant and Smiley : Whatever authority was responsible for re- districting, 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—reflected in Smiley ’s unanimous command that a state legislature may not “create congressional dis- tricts independently of” requirements imposed “by the state constitu- tion with respect to the enactment of laws,” 285 U. S., at 373—com- mands continued respect. Pp. 15–18.
(b) The precedents of this Court have long rejected the view that legislative action under the Elections Clause is purely federal in char- acter, governed only by restraints found in the Federal Constitution. The argument to the contrary does not account for the Framers’ un- derstanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life. Thus, when a state legislature carries out its federal constitutional power to pre- scribe rules regulating federal elections, it acts both as a lawmaking body created and bound by its state constitution, and as the entity as- signed particular authority by the Federal Constitution. Both consti- tutions restrain the state legislature’s exercise of power.
This Court’s decision in
McPherson
v.
Blacker
,
(c) Petitioners concede that at least some state constitutional pro- visions can restrain a state legislature’s exercise of authority under the Elections Clause, but they read Smiley and Hildebrant to differen- tiate 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. 22–24.
(d) Historical practice confirms that state legislatures remain
Syllabus
bound by state constitutional restraints when exercising authority un- der the Elections Clause. Two state constitutional provisions adopted shortly after the founding expressly constrained state legislative ac- tion under the Elections Clause. See Del. Const., Art. VIII, §2 (1792); Md. Const., Art. XIV (1810). In addition, multiple state constitutions 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 annually ap- pointed in such manner as the legislature of each state shall direct.” 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. 24–26.
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
Washington Legal Foundation
,
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. 26–29.
R OBERTS , C. J., delivered the opinion of the Court, in which S O- TOMAYOR , K AGAN , K AVANAUGH , B ARRETT , and J ACKSON , JJ., joined. K AVANAUGH , J., filed a concurring opinion. T , J., filed a dissenting opinion in which G ORSUCH , J., joined, and in which A LITO , J., joined as to Part I.
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers 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. SUPREME COURT OF THE UNITED STATES
_________________ No. 21–1271 _________________ TIMOTHY K. MOORE, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES, ET AL ., PETITIONERS REBECCA HARPER, ET AL . ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA [June 27, 2023] C HIEF J USTICE R OBERTS delivered the opinion of the Court.
Several groups of plaintiffs challenged North Carolina’s congressional districting map as an impermissible partisan 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, 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 Caro- lina’s Legislature deliberately drew the State’s congres- sional map to favor Republican candidates.
In drawing the State’s congressional map, North Caro- lina’s Legislature exercised authority under the Elections Clause of the Federal Constitution, which expressly re- quires “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 leg- *7 islatures with authority to set rules governing federal elec- tions 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 legislatures
the “duty” to prescribe rules governing federal elections.
Arizona Inter Tribal Council of Ariz., Inc.
,
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 congres-
sional delegation. U. S. Census Bureau, 2020 Census Ap-
portionment 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. Representative Destin
Hall
, 21 CVS 015426 etc. (Super. Ct. Wake Cty., N. C., Dec.
3, 2021), App. to Pet. for Cert. 260a–261a, rev’d and re-
manded on other grounds,
Harper
v.
Hall
, 380 N. C. 317,
Shortly after the new maps became law, several groups
of plaintiffs—including the North Carolina League of Con-
servation Voters, Common Cause, and individual voters—
sued in state court. The plaintiffs asserted that each map
constituted an impermissible partisan gerrymander in vio-
lation of the North Carolina Constitution.
Harper I
, 380
N. C., at 329–330,
The North Carolina Supreme Court reversed, holding
that the legislative defendants violated state law “beyond a
reasonable doubt” by enacting maps that constituted parti-
san gerrymanders.
Id.
, at 353,
[1] The plaintiffs also asserted that North Carolina’s Legislature dis-
criminated on the basis of race and raised other claims under the North
Carolina Constitution.
Harper I
,
see
Harper I
,
After holding that the 2021 districting maps “substan-
tially infringe upon plaintiffs’ fundamental right to equal
voting power,” the Court struck down the maps and re-
manded 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,
On February 25, 2022, the legislative defendants filed an
emergency application in this Court, citing the Elections
Clause and requesting a stay of the North Carolina Su-
preme Court’s decision. We declined to issue emergency re-
lief but later granted certiorari.
B
Following our grant of certiorari, the North Carolina Su-
preme Court heard an appeal concerning the trial court’s
remedial order. In December 2022, the Court issued a de-
cision affirming in part, reversing in part, and remanding
the case. As relevant, it agreed with the trial court’s deter-
mination that the General Assembly’s remedial congres-
sional plan “fell short” of the requirements set forth in
Har-
per 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 v. 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 briefing 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
, con-
cerning the remedial maps, and “overruled” its decision in
Harper I
. See
Harper Hall
, ___ N. C. ___, 886 S. E. 2d
393 (2023). Relying on our decision in
Rucho
and on a re-
newed look at the constitutional provisions at issue, the
Court repudiated
Harper I
’s conclusion that partisan ger-
rymandering claims are justiciable under the North Caro-
lina Constitution. See ___ N. C., at ___,
The North Carolina Supreme Court dismissed the plain-
tiffs’ claims with prejudice.
Id.
, at ___,
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 with- draw Harper II and overrule Harper I does not moot this *12 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 defense 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 re- hearing as to that judgment had long since passed. See N. C. Rule App. Proc. 31(a) (2023) (requiring that a rehear- ing petition be brought within 15 days of the issuance of the mandate). Recognizing this reality, the legislative defend- ants did not ask the North Carolina Supreme Court to dis- turb the judgment in Harper I as part of the rehearing pro- ceedings. They instead acknowledged 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 specific relief requested by the legis-
lative defendants. As a result, partisan gerrymandering
claims are no longer justiciable under the State’s Constitu-
tion.
Harper
, ___ N. C., at ___,
A North Carolina statute with specific application to this
proceeding confirms 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 p. 10,
§2. We have previously found such trigger provisions—in
North Carolina, no less—sufficient to avoid mootness under
Article III. See
Hunt Cromartie
,
We also have jurisdiction to review the judgment in
Har-
per I
under 28 U. S. C. §1257(a). That statute provides for
this Court’s exercise of jurisdiction over “[f]inal judgments
or decrees rendered by the highest court of a State in which
a decision could be had.”
Ibid.
We have, however, “recur-
ringly encountered situations in which the highest court of
a State has finally determined the federal issue present in
a particular case, but in which there are further proceed-
ings in the lower state courts to come.”
Cox Broadcasting
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 final 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 is- sue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of *14 future state-court proceedings.” Id. , at 480.
Harper I
fits within this second category of cases de-
scribed in
Cox Broadcasting
. By striking down the 2021
congressional plans enacted by the General Assembly,
Har-
per I
“finally decided” the “federal issue” whether the Elec-
tions Clause insulates state legislatures from review by
state courts for compliance with state law. See 380 N. C.,
at 390–391,
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 final, 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. Moitie
,
J USTICE sees it differently. He correctly ob-
*15
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 5 (dissenting opin-
ion). But the record before us belies that notion.
Harper I
enjoined the use of the 2021 maps in subsequent elections
in North Carolina. Well after the time for seeking rehear-
ing as to that judgment passed, the legislative defendants
instead sought rehearing with respect to
Harper II
, a dis-
tinct decision concerning remedies. The defendants stead-
fastly maintained in rehearing proceedings before the
North Carolina 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 De-
fendants’ Supp. Brief on Rehearing in
Harper
v.
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—“with-
draw[ing]” its decision in
Harper II
.
Harper
, ___ N. C., at
___,
In an effort to cast doubt on these consistent representa- tions by the injured party before us, J USTICE con- tends that the legislative defendants have already received complete relief because nothing now prevents the imple- mentation of the 2021 maps. Post , at 15 (dissenting opin- ion). 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 6. But that has been their position from the very beginning, *16 and it did not prevent our granting certiorari. The conces- sions offered by the legislative defendants as part of the re- hearing proceedings, the recent opinion issued by the North Carolina Supreme Court, and the legislative defendants’ briefing in this Court all tell the same story: Harper I con- tinues to enjoin the use of the 2021 maps. Following the dissent’s logic and dismissing this case as moot would fore- close the one path to full relief available to the legislative defendants: A decision by this Court reversing the judg- ment in Harper I .
This Court has before it a judgment issued by a State’s
highest court that adjudicates a federal constitutional is-
sue. The defendants did not ask the North Carolina Su-
preme 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 exer-
cise of jurisdiction where the “federal issue . . . will survive
and require decision regardless of the outcome of future
state-court proceedings.”
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 recog-
nized their duty to evaluate the constitutionality of legisla-
tive acts. We announced our responsibility to review laws
*17
that are alleged to violate the Federal Constitution in
Mar-
bury
v.
Madison
, proclaiming that “[i]t is emphatically the
province and duty of the judicial department to say what
the law is.”
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. Alt- hough Rhode Island lacked a written constitution, Varnum argued that the State nevertheless had a constitution re- flecting 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 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 five judges involved. W. Treanor, Judicial Review Before Marbury , 58 Stan. L. Rev. *18 455, 478 (2005). His arguments were published as a pam- phlet, which “may well have been the most prominent dis- cussion of judicial review at the time of the Philadelphia Constitutional Convention.” Id. , at 477.
The North Carolina Supreme Court played its own part in establishing judicial review. In Bayard v. 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 Mort. 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 judi- cial review. 2 Life and Correspondence of James Iredell 145 (1846). “[T]he power of the Assembly,” he wrote, “is limited and defined 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 Solutions 13 (2018).
The Framers recognized state decisions exercising judi- cial 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 *19 lauded the Rhode Island judges “who refused to execute an unconstitutional law,” lamenting that the State’s legisla- ture 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 peo- ple themselves, would be considered by the Judges as null & void.” Id. , at 93. Elbridge Gerry, a delegate from Massa- chusetts, 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 “ger- rymander.”) At the Convention, he noted that “[i]n some States the Judges had [actually] set aside laws as being agst. the Constitution.” 1 id ., at 97 (alteration in original by James Madison). 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 ratifica-
tion, courts grew assured of their power to void laws incom-
patible 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 funda-
mental principles 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 re- view.
A
We first considered the interplay between state constitu-
tional provisions and a state legislature’s exercise of au-
thority under the Elections Clause in
Ohio ex rel. Davis
v.
Hildebrant
,
We unanimously affirmed, 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
,
Smiley Holm
, decided 16 years after
Hildebrant
, con-
sidered the effect of a Governor’s veto of a state redistricting
*21
plan.
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 find “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 provided
a veto power, restrictions that were “well known.”
Ibid.
(cit-
ing provisions in Massachusetts and New York). Subjecting
state legislatures to such a limitation “was no more incon-
gruous with the grant of legislative authority to regulate
congressional elections than the fact that the Congress in
*22
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 Hilde- brant and Smiley in a case considering the constitutionality of an Arizona ballot initiative. Voters “amended Arizona’s Constitution to remove redistricting authority from the Ar- izona Legislature and vest that authority in an independent commission.” Arizona State Legislature v. Arizona Inde- pendent 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 precludes resort to an independent commission . . . to accomplish redistricting.” Ibid. A divided Court rejected that argument. The majority reasoned that dictionaries of “the founding era . . . capaciously define[d] the word ‘legis- lature,’ ” id. , at 813–814, and concluded that the people of Arizona retained the authority to create “an alternative leg- islative process” by vesting the lawmaking power of redis- tricting 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 officials who ordinar- ily exercise lawmaking power. States, the Court explained, *23 “retain autonomy to establish their own governmental pro- cesses.” Id. , at 816.
The significant point for present purposes is that the
Court in
Arizona State Legislature
recognized that what-
ever authority was responsible for redistricting, that entity
remained subject to constraints set forth in the State Con-
stitution. 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
prescriptions for lawmaking, which may include the refer-
endum and the Governor’s veto.”
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.”
B
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 17 (opinion of T , J.). The legislative defendants cite for support Federalist No. 78, which explains that the wielding of legislative *24 power is constrained 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 Legislature each rejected the contention that the Elections Clause vests state legislatures with exclusive and independent authority when setting the rules governing federal elections.
The argument advanced by the defendants and the dis-
sent also does not account for the Framers’ understanding
that when legislatures make laws, they are bound by the
provisions of the very documents that give them life. Leg-
islatures, the Framers recognized, “are the mere creatures
of the State Constitutions, and cannot be greater than their
creators.” 2 Farrand 88. “What are Legislatures? Crea-
tures of the Constitution; they owe their existence to the
Constitution: they derive their powers from the Constitu-
tion: 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
v.
Blacker
,
Our decision in McPherson , however, had nothing to do with any conflict between provisions of the Michigan Con- stitution and action by the State’s legislature—the issue we 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 un- der state constitutions as they exist.”).
The legislative defendants and J USTICE rely as
well on our decision in
Leser
v.
Garnett
, 258 U. S. 130
(1922), but it too offers little support. See
post
, at 17, 20–
21.
Leser
addressed an argument that the Nineteenth
Amendment—providing women the right to vote—was in-
valid because state constitutional provisions “render[ed] in-
operative the alleged ratifications by their legislatures.”
But the legislature in
Leser
performed a ratifying func-
tion rather than engaging in traditional lawmaking. The
provisions at issue in today’s case—like the provisions ex-
amined in
Hildebrant
and
Smiley
—concern a state legisla-
ture’s exercise of lawmaking power. And as we held in
Smi-
ley
, when state legislatures act pursuant to their Elections
Clause authority, they engage in lawmaking subject to the
typical constraints on the exercise of such power. 285 U. S.,
at 367. We have already distinguished
Leser
on those
grounds.
Smiley
,
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
,
By fulfilling their constitutional duty to craft the rules
governing federal elections, state legislatures do not con-
sent, ratify, or elect—they make laws. Elections are com-
plex affairs, demanding rules that dictate everything from
the date on which voters will go to the polls to the dimen-
sions and font of individual ballots. Legislatures must “pro-
vide a complete code for congressional elections,” including
regulations “relati[ng] to notices, registration, supervision
*27
of voting, protection of voters, prevention of fraud and cor-
rupt practices, counting of votes, duties of inspectors and
canvassers, and making and publication of election re-
turns.”
Smiley
,
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 J USTICE HOMAS concede that at least some state constitutional provisions can re- strain 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 Petitioners 24; post , at 21–22 (opinion of T , J.). Smi- ley , in their view, stands for the proposition that state con- stitutions 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 sub- stantive provisions, 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 *28 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. J USTICE T HOMAS thinks those cases say
nothing about whether a State can impose “substantive lim-
its” on the legislature’s exercise of power under the Elec-
tions Clause.
Post
, at 21. But in
Smiley
, we addressed
whether “the conditions which attach to the making of state
laws” apply to legislatures exercising authority under the
Elections Clause.
The defendants and J USTICE 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 *29 Orthopedic Associates, P. A. v. Allstate Ins. Co. , 559 U. S. 393, 419–420 (2010) (Stevens, J., concurring in part and concurring in judgment). Many rules “are rationally capa- ble of classification as either.” Hanna v. Plumer , 380 U. S. 460, 472 (1965); see also Sun Oil Co. v. Wortman , 486 U. S. 717, 726 (1988) (“Except at the extremes, the terms ‘sub- stance’ and ‘procedure’ precisely describe very little except a dichotomy.”). Procedure, after all, is often used as a vehi- cle 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 re- straint on lawmaking? Smiley did not endorse such murky inquiries into the nature of constitutional restraints, and we see no neat distinction today.
D
Were there any doubt, historical practice confirms 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 Elec- tions Clause stated that the “Places” and “Manner” of fed- eral elections shall be “prescribed” by the state legislatures, the Delaware Constitution expressly enacted rules govern- *30 ing the “places” and “manner” of holding elections for fed- eral office. An 1810 amendment to the Maryland Constitu- tion likewise embodied regulations falling within the scope of the Elections and Electors Clauses. Article XIV provided that every qualified 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 Con- gress of the United States.” If the Elections Clause had vested exclusive 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 specific provisions in Maryland and Del- aware, multiple state constitutions at the time of the found- ing regulated federal elections by requiring that “[a]ll elec- tions 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 meaning 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 offices that were created by” state constitutions, and not to the federal offices to which the Elections Clause applies. Tr. of Oral Arg. 18. We find 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 Articles of Confederation, which provided that “delegates shall be annually appointed in such manner as the legisla- ture of each state shall direct.” Art. V. The two provisions *31 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 insulate state legislative action from state con- stitutional provisions. 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. Af- ter a Boston delegate proposed a provision regulating the manner of federal elections, Joseph Story—then a Justice of this Court—nixed the effort. In Story’s view, such a pro- vision would run afoul of the Elections Clause by “as- sum[ing] a control over the Legislature, which the constitu- tion 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 reflects the views of a jurist who, although “a brilliant and accomplished man, . . . was not a member of the Found- ing generation.” U. S. Term Limits, Inc. Thornton , 514 U. S. 779, 856 (1995) (T , J., dissenting).
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 decision of questions arising under their local law, whether statutory or otherwise.” Murdock v. Memphis , 20 Wall. 590, 626 (1875). At the same time, the Elections Clause expressly vests power to carry out its provisions in “the Legislature” *32 of each State, a deliberate choice that this Court must re- spect. As in other areas where the exercise of federal au- thority or the vindication of federal rights implicates ques- tions of state law, we have an obligation to ensure that state court interpretations of that law do not evade federal law.
State law, for example, “is one important source” for de-
fining property rights.
Tyler
v.
Hennepin County
, 598 U. S.
___, ___ (2023) (slip op., at 5); see also
Board of Regents of
State Colleges
v.
Roth
,
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
,
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 reason-
ing to stifle the “vindication in state courts of . . . federal
*33
constitutional rights.”
NAACP
v.
Alabama ex rel. Patter-
son
,
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
,
Chief Justice Rehnquist, joined in a concurring opinion by J USTICE and Justice Scalia, acknowledged the usual deference we afford state court interpretations of state law, but noted “areas in which the Constitution re- quires this Court to undertake an independent, if still def- erential, analysis of state law.” Id. , at 114. He declined to give effect to interpretations of Florida election laws by the Florida Supreme Court that “impermissibly distorted them beyond what a fair reading required.” Id. , at 115. Justice Souter, for his part, considered whether a state court inter- pretation “transcends the limits of reasonable statutory in- terpretation to the point of supplanting the statute enacted by the ‘legislature’ 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 *34 this area are complex and context specific. 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 legislatures to regulate federal elec- tions.
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 briefing, nor did they press the matter at oral argu-
ment. See
Bay Area Laundry and Dry Cleaning Pension
Trust Fund Ferbar Corp. of Cal.
,
* * *
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 *35 30
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 specifically 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 Carolina Supreme Court is affirmed.
It is so ordered. ——————
[2] As noted, supra , at 5–6, the North Carolina Supreme Court withdrew the opinion in Harper II , which addressed both the remedial maps devel- oped by the General Assembly and an order by the trial court implement- ing an interim plan for the 2022 elections. The remedial order, having 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.
K AVANAUGH , J., concurring
SUPREME COURT OF THE UNITED STATES
_________________ No. 21–1271 _________________ TIMOTHY K. MOORE, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES, ET AL ., PETITIONERS REBECCA HARPER, ET AL . ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA [June 27, 2023] J USTICE K AVANAUGH , concurring.
I join the Court’s opinion in full. The Court today correctly concludes that state laws governing federal elections are subject to ordinary state court review, including for compliance with the relevant state constitution. Ante , at 15, 26, 29. But because the Elections Clause assigns authority respecting federal elections to state legislatures, the Court also correctly concludes that “state courts do not have free rein” in conducting that review. Ante , at 26. Therefore, a state court’s interpretation of state law in a case implicating the Elections Clause is subject to federal court review. Ante , at 26–30; see also Bush v. Palm Beach County Canvassing Bd. , 531 U. S. 70, 76–78 (2000) (unanimously concluding that a state court’s interpretation of state law in a federal election case presents a federal issue); cf. Democratic National Committee v. Wisconsin State Legislature , 592 U. S. ___, ___, n. 1 (2020) (K AVANAUGH , J., concurring in denial of application to vacate stay) (slip op., at 9, n. 1). Federal court review of a state court’s interpretation of state law in a federal election case “does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures .” Bush
K AVANAUGH , J., concurring
v. Gore , 531 U. S. 98, 115 (2000) (Rehnquist, C. J., concurring).
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 Souter’s standard from Bush v. Gore ; the Solicitor General’s proposal 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 understand it, Justice Souter’s standard, at least the critical language, is similar: whether the state court exceeded “the limits of reasonable” interpretation of state law. Id. , at 133 (dissenting opinion). And the Solicitor General here has 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 Justice 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 ——————
[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 conclusions in an individual case about whether a particular state court interpretation 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 decisive factor in any such disagreement.
K AVANAUGH , J., concurring
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 29. [2] For now, therefore, this Court need not, and ultimately does not, adopt any specific standard for our review of a state court’s interpretation of state law in a case implicating the Elections Clause. See ante , at 28 (“We do not adopt these or any other test by which we can measure state 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 26, 29. 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 specific 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. ——————
[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.
T HOMAS SUPREME COURT OF THE UNITED STATES
_________________ No. 21–1271 _________________ TIMOTHY K. MOORE, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES, ET AL ., PETITIONERS REBECCA HARPER, ET AL . ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA [June 27, 2023] J USTICE , with whom J USTICE G ORSUCH joins, and with whom J USTICE A LITO joins as to Part I, dissenting.
This Court sits “to resolve not questions and issues but
‘Cases’ or ‘Controversies.’ ”
Arizona Christian School Tui-
tion 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
,
The opinion that the Court releases today breaks that thread. It “affirms” an interlocutory state-court judgment that has since been overruled and supplanted by a final judgment resolving all claims in petitioners’ favor. The is- sue on which it opines—a federal defense to claims already dismissed on other grounds—can no longer affect the judg- ment in this litigation in any way. As such, the question is indisputably moot, and today’s majority opinion is plainly advisory. Because the writ of certiorari should be dis- missed, I respectfully dissent.
I
Here is the case before us in a nutshell: A group of plain- tiffs sued various state officials 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 fi- nally adjudicated the whole case in the defendants’ favor, dismissing 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 final 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- floating defense that affects no live claim for relief, reason- ing that a justiciable case or controversy exists as long as its opinion can in any way “alter the presently operative statutes of ” a State. Ante , at 7 (internal quotation marks omitted). By its own lights, the majority “is acting not as an Article III court,” Uzuegbunam Preczewski , 592 U. S. ___, ___ (2021) (R OBERTS , C. J., dissenting) (slip op., at 3), but as an ad hoc branch of a state legislature. That is em- phatically 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 General Assembly passed an Act to redistrict the State for elections to the U. S. House of Representatives. Plaintiffs- respondents filed an action in state court, seeking to enjoin state elections officials (defendants-respondents here) from *41 conducting elections in accord with the Act. [1] They based their claim for relief on the North Carolina Constitution, which they argued prohibits excessive partisan gerryman- ders.
Petitioners, state legislators representing North Caro-
lina’s interest in the enforcement of the Act, see N. C. Gen.
Stat. Ann. §1–72.2 (2021);
Berger North Carolina State
Conference of the NAACP
,
Initially, a three-judge trial court endorsed petitioners’
state-law defense and entered a final judgment dismissing
plaintiffs-respondents’ claims with prejudice. But, on ap-
peal, the North Carolina Supreme Court reversed that
judgment. See
Harper Hall
,
Petitioners then sought this Court’s review of Harper I insofar as it rejected their federal defense. From the start, they faced a significant jurisdictional question. Our appel- ——————
[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.
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-finality”; 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
, 288 F. 2d 600, 602 (CA2 1961)
(Friendly, J.). Thus, under the normal rules,
Harper I
would not be “reviewable by this Court.”
Jefferson
v.
City
of Tarrant
,
Nonetheless, this Court’s precedents have recognized “a
limited set of situations” in which “finality as to [a] federal
issue
” permits our review, even in the absence of a final
judgment as to the
case
.
O’Dell
v.
Espinoza
,
As it turned out, that assumption was wrong. After
Har-
per I
, on remand, the trial court adopted a remedial district-
ing plan for the 2022 elections. Petitioners then appealed
that order, taking the case to the North Carolina Supreme
Court for a second time. Initially, the North Carolina Su-
preme Court released an opinion applying
Harper I
and af-
firming the trial court’s decree.
Harper
v.
Hall
, 383 N. C.
89, 881 S. E. 2d 156 (2022) (
Harper II
). But then, after
granting petitioners’ request for rehearing, the court “re-
visit[ed] the crucial issue in this case: whether claims of
partisan gerrymandering are justiciable under the state
constitution.”
Harper Hall
, ___ N. C. ___, ___, 886 S. E.
2d 393, 399 (2023) (
Harper III
). After reexamining “the
fundamental premises underlying the decisions in both
Harper II
and
Harper I
,” the court “h[e]ld that partisan ger-
*43
rymandering claims present a political question that is non-
justiciable under the North Carolina Constitution.”
Id.
, at
___–___,
“This Court’s opinion in
Harper I
is overruled. We
affirm the three-judge panel’s [original] 11 January
2022 Judgment concluding,
inter alia
, that claims of
partisan gerrymandering present nonjusticiable, polit-
ical questions and dismissing all of plaintiffs’ claims
with prejudice. This Court’s opinion in
Harper II
is
withdrawn and superseded by this opinion. The three-
judge panel’s 23 February 2022 order addressing the
Remedial Plans is vacated. Plaintiffs’ claims are dis-
missed with prejudice.”
Id.
, at ___,
It follows that no live controversy remains before this
Court. For any case or controversy to exist here, petitioners
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) (slip op., at 4); see also
Ex parte
Bollman
,
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 de- cide is now moot because the Court’s resolution of that ques- tion could not affect the disposition of this case”). So do the elections officials 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 first place. See Letter Brief for North Carolina League of Conservation Voters, Inc., et al. 2 (May 11, 2023) (“The North Carolina Supreme Court’s February 2022 judgment reversing the same January 11, 2022 trial-court judgment that the North Carolina Supreme Court just affirmed is now a nullity”); Supplemental Letter Brief for Rebecca Harper et al. 1 (May 11, 2023) (“Petition- ers have won a full victory in state court”). As one group of plaintiffs-respondents put it, “there is no non-frivolous ba- sis 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
Harper
III
overruled
Harper I
and affirmed the very same trial-
court judgment that
Harper I
had reversed. And it concedes
that, as a result, plaintiffs-respondents’ claims have been
dismissed in full on state-law nonjusticiability grounds.
Thus, the majority does not contend that its opinion on the
*45
Elections Clause issue could make any difference to the fi-
nal judgment “adjudicating all the claims and the rights
and liabilities of all the parties” in this case. N. C. Rule Civ.
Proc. 54(b). That should be the end of the discussion. Be-
cause the question presented “cannot affect the rights of
[the] litigants in the case before [us],” we “are without
power to decide” it.
North Carolina
v.
Rice
,
Nonetheless, the majority finds 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 6–11. In doing so, it relies extensively on petitioners’
“representations” that they “remain bound by the judgment
in
Harper I
.”
Ante
, at 10; see also
ante
, at 5, 7, 11. 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) (slip op., at 15) (emphasis added). Nor
can such representations affect our “independent obligation
to assure ourselves that jurisdiction is proper before pro-
ceeding 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 irrele- ——————
[2] In this case, these two inquiries are identical, making the majority’s
bifurcated analysis somewhat artificial. To say that an issue “will sur-
vive and require decision,” as
Cox Broadcasting
uses the phrase, simply
means that it will not become moot, generally through some other issue
independently resolving the case (precisely what happened here). See,
e.g.
,
Pierce County Guillen
,
I start by clearing away some of the brush. True, Harper III did not expressly “revisit” the Elections Clause issue, ante , at 6; true as well, petitioners did not obtain rehearing of Harper I , see ante , at 7. But none of that matters because Harper III ’s final judgment mooted the Elections Clause is- sue in this case by dismissing plaintiffs-respondents’ claims on alternative state-law grounds. [3] Likewise, the idea that ——————
[3] Incidentally, the majority seriously errs when it says that
Harper III
“reaffirmed”
Harper I
’s Elections Clause holding,
ante
, at 9, apparently
referencing
Harper III
’s statement that “[t]he General Assembly exer-
cises [redistricting] authority subject to the express limitations in our
constitution and in federal law,” ___ N. C., at ___,
In the same vein, the majority’s suggestion that
Harper I
has any “res judicata consequences” is completely inappo-
site.
Ante
, at 9 (internal quotation marks omitted). Res
judicata is the principle that “[a] final judgment on the mer-
its 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 first action.
Federated Department
Stores, Inc.
v.
Moitie
, 452 U. S. 394, 398 (1981); see also
Taylor
v.
Sturgell
,
regarding redistricting of congressional districts.” Id. , at ___, 886 S. E. 2d, at 419. To the extent that Harper III suggests any view about whether such provisions would be binding if they existed, it seems to suggest agreement with petitioners. See ibid. (“The Federal Constitu- tion . . . commits drawing of congressional districts to the state legisla- tures subject to oversight by the Congress of the United States”). But, of course, Harper III had no need to decide that question, because its state- law justiciability holding fully determined the judgment in this action, thus mooting petitioners’ alternative Elections Clause defense. *48 10
judgment have preclusive effect; if a defendant obtains a fi-
nal judgment based on one defense, the court’s rejection of
alternative defenses is not preclusive in a later action). At
the risk of belaboring the obvious, the clearest proof that
Harper I
was not a final judgment is
Harper III
—which “re-
visit[ed]”
Harper I
’s determination of a “crucial issue in this
case,” ___ N. C., at ___,
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 7, 10–11, but that idea
is untenable. To start, the majority overlooks that the in-
junction only ran against the conduct of defendants-
respondents—the state officials who actually implement
election laws—not petitioners as legislators. See
Berger
,
[4] These facts refute the majority’s dismissive reference to
Harper III
as
“a distinct decision concerning remedies,” as well as any suggestion that
Harper III
was “another case” than
Harper I
for res judicata purposes.
Ante
, at 9–10 (internal quotation marks omitted).
Harper I
and
Harper
III
involved exactly the same case, and there is “only one final judgment
per case.”
Chaka Lane
,
idea defies both common sense and civil procedure. A court simply does not go on enforcing an interlocutory injunc- tion—and imposing contempt sanctions for disobedience— after reaching a final judgment dismissing every relevant claim for relief. Rather, the interlocutory injunction (like all interlocutory orders) merges into the final judgment fully “adjudicating all the claims and the rights and liabil- ities of all the parties” to the case. N. C. Rule Civ. Proc. 54(b) (emphasis added). “With the entry of [ Harper III ’s] final 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 Boxing, Inc. Shavers , 562 F. 2d 141, 144 (CA2 1977).
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 Harper I ’s “judgment” operated against the 2021 Act as a statute . The majority describes Harper I ’s “judgment” interchange- ably as “enjoining the use of the 2021 ma[p]” and “striking down the 2021 pla[n].” Ante , at 7, 9. It then reasons that reversing that “judgment” would “negate the force of its or- der 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 7–8 (inter- nal quotation marks omitted). The majority regards this aspect of Harper I ’s “judgment” as entirely independent of Harper III ’s final resolution of the claims in this case. See ante , at 5–8, 10–11. And it finds its theory “confirm[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 8 (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 *50 a particular legislative Act, which Harper I supposedly made inoperative, will again be “operative” or “effective” as a state statute. Ante , at 7–8 (internal quotation marks omitted).
This reasoning bears no connection to the judicial power
of this Court or the court below. Judicial power is the power
to adjudicate “definite and concrete” disputes “touching the
legal relations of parties having adverse legal interests,”
Rice
,
Indeed, such a conception would contradict the most basic
*51
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
,
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] con-
troversy” before them.
Nicholson
, 275 N. C., at 447, 168
S. E. 2d, at 406.
Harper I
’s judgment line did not read:
“Stricken down,” referring to the 2021 Act, but instead: “Re-
versed and remanded,” referring to the lower court judg-
ment and the case between these parties.
and Harper I was no exception.
Even if it were, we would still have no case or controversy
in front of us. A freestanding “judgment” of statutory inval-
idation—neutralizing the 2021 Act in some manner trans-
cending the final 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.
,
[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 5 (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 5 (citing
Harper III
, ___ N. C.,
at ___–___,
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 8. When passed, that Act
was essentially a change in the State’s conduct under judi-
cial constraint (the result of
Harper I
), but with the de-
clared intention of resuming the original conduct if that
constraint were removed. That declaration kept the contro-
versy alive while the constraint still existed, as in
Hunt
v.
Cromartie
,
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 ——————
[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 ineffective), and in such case [the 2021 Act] is again effective.” 2022 N. C. *54 16
free to condition the effectiveness of a change in state law
on external events, including this Court’s actions in cases
properly before it. But, as should be obvious, such a trigger
provision cannot be the entire basis of an Article III case or
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.”
Uzueg-
bunam
,
——————
Sess. Laws 3, p. 10, §2. The majority’s reading is based on three suppo- sitions that it does not justify. The first is that this provision has any reference at all to events after the 2022 elections, to which the remedial Act was exclusively directed. The second is that the dependent clause following “unless” is applicable even though, under the main clause, the remedial plan was never “adopt[ed]” by the trial court and thus never became “effective.” The third is that Harper III did not “otherwise . . . ma[ke]” Harper I “inoperable, or ineffective.”
[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 major-
ity. At times, state legislatures have enacted laws contingent on state-
court opinions approving their constitutionality—in fact, such legislation
produced the first 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
,
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 dis- missed.
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 decide. Nonetheless, I do not find the majority’s merits reasoning persuasive.
The Elections Clause of the Constitution provides that “[t]he Times, Places and Manner of holding Elections for Senators 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 manners of holding congressional elections that “the Legis- lature” of the State has the power to prescribe. Petitioners said no. Their position rests on three premises, from which the conclusion follows.
The first 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 , 4 Wheat. 316, 429 (1819). This idea should be uncontrover- sial, as it is “the unavoidable consequence of th[e] suprem- acy” of the Federal Constitution and laws. Id. , at 436. As the Court once put it (in a case about the Article V ratifying power of state legislatures), “a federal function derived from the Federal Constitution . . . transcends any limitations ——————
P. 1110, 1112 (1924). Such advisory opinions may be authorized by some
state constitutions, but Article III gives this Court no such power.
*56
sought to be imposed by the people of a State.”
Leser
v.
Garnett
,
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 del-
egated to, rather than reserved by, the States.’ ”
Cook
v.
Gralike
,
The third premise is that “the Legislature thereof ” does
not mean the people of the State or the State as an undif-
ferentiated body politic, but, rather, the lawmaking power
as it exists under the State Constitution. This premise com-
ports with the usual constitutional meanings of the words
“State” and “Legislature,” as well as this Court’s prece-
dents. “A state, and the legislature of a state, are quite dif-
ferent political beings.” Story §628. “A state, in the ordi-
nary 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 people.’ ”
Smiley Holm
,
To be sure, the precise constitutional significance 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 constitu-
tional actors in whom lawmaking power is vested. See
Ar-
izona State Legislature Arizona Independent Redistrict-
ing Comm’n
, 576 U. S. 787, 795–796, 814 (2015);
Smiley
,
[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 legis-
lature,”
20
to make the laws.”
State ex rel. Schrader Polley
, 26 S. D.
5, 10–11,
If these premises hold, then petitioners’ conclusion fol-
lows: In prescribing the times, places, and manner of con-
gressional elections, “the lawmaking body or power of the
state, as established by the state Constitution,”
id.
, at 10,
The majority rejects petitioners’ conclusion, but seem- ingly without rejecting any of the premises from which that conclusion follows. Its apparent rationale—that Hilde- brant , Smiley , and Arizona State Legislature have already foreclosed petitioners’ argument—is untenable, as it re- quires disregarding a principled distinction between the is- sues in those cases and the question presented here. In those cases, the relevant state-constitutional provisions ad- dressed the allocation of lawmaking power within each ——————
[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 20,
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.”
State; they defined what acts, performed by which constitu-
tional actors, constituted an “exercise of the lawmaking
power.”
Smiley
,
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 defines
“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 en-
actments.”
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 dic-
tate what constitutional amendments their legislatures can
ratify under Article V. See
Leser
,
[11] The majority states that Smiley “already distinguished” Leser as in- volving a nonlawmaking function. Ante , at 21. But Smiley distinguished the “electoral,” “ratifying,” and “consenting” functions of state legisla- tures from their “lawmaking” function under the Elections Clause, 285 U. S., at 365–366, only to explain why the last function must be “exer- *60 cordingly, if petitioners’ premises hold, then state constitu- tions may specify who constitute “the Legislature” and pre- scribe how legislative power is exercised, but they cannot control what substantive laws can be made for federal elec- tions.
The majority indicates that it does not perceive this dis-
tinction between “substantive” and “procedural” rules, see
ante
, at 23–24,
[12]
illustrating its doubts with a rhetorical
question: “When a governor vetoes a bill because of a disa-
greement with its policy consequences, has the governor ex-
ercised a procedural or substantive restraint on lawmak-
ing?”
Ante
, at 24. The answer is straightforward: The
power of approving or vetoing bills is “a part of the legisla-
tive process” because it is “a part in the making of state
laws.”
Smiley
, 285 U. S., at 368–369; see also
INS
v.
Chadha
,
cise[d] . . . in accordance with the [State’s] method . . . for legislative en-
actments,”
id.
, at 367, including “the participation of the Governor wher-
ever the state constitution provided for such participation as part of the
process of making laws,”
id.
, at 370. Nothing in
Smiley
even hints that
a federally delegated power fails to “transcen[d] limitations sought to be
imposed by the people of a State” simply because it is a lawmaking func-
tion.
Leser
,
[12] This admission carries troubling implications for other fields, as
comparable “distinction[s] between procedure and substance [are] not
unknown in the law.”
United States
v.
Kras
, 409 U. S. 434, 463, n. 6
(1973) (Marshall, J., dissenting). For example, our habeas corpus juris-
prudence has long distinguished “substantive” constitutional rules from
“procedural” ones.
Schriro
v.
Summerlin
,
But substantive constraints on what the lawmaking power can do (gubernatorial approval included) demand an entirely different justification—one that the majority never provides. It does not overrule Cook and Thornton to hold that the power to prescribe times, places, and manners for congressional 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 dele- gates that power. See ante , at 17–18. Indeed, the majority devotes little attention to the source and recipient of the power described in the Elections Clause, notwithstanding their direct 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 11–15, 26–30. But that power sheds no light *62 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 conflict with it. The court must also apply the state constitution over any conflicting statute en- acted under a power limited by that constitution. Petition- ers’ argument, however, is that legislation about the times, places, and manner of congressional elections is not limited by state constitutions—because the power to regulate those subjects comes from the Federal Constitution, not the peo- ple 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 first place. To say that “state judicial review” authorizes applying state constitutions over con- flicting Elections Clause legislation, ante , at 15, is simply to assume away petitioners’ argument.
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 28. 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
,
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 ordi- nary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regu- late federal elections.” Ante , at 29. Thus, under the major- ity’s framework, it seems clear that the statutory- interpretation review forecast in Bush (or some version of it) is to be extended to state constitutional law.
In this way, the majority opens a new field for
Bush
-style
controversies over state election law—and a far more un-
certain one. Though some state constitutions are more
“proli[x]” than the Federal Constitution, it is still a general
feature of constitutional text that “only its great outlines
should be marked.”
McCulloch
,
Nonetheless, the majority’s framework appears to de-
mand that federal courts develop some generalized concept
of “the bounds of ordinary judicial review,”
ante
, at 28; ap-
ply it to the task of constitutional interpretation within
each State; and make that concept their rule of decision in
*64
some of the most politically acrimonious and fast-moving
cases that come before them. In many cases, it is difficult
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 de-
termined that reading justiciable prohibitions against par-
tisan gerrymandering into the North Carolina Constitution
exceeded the bounds of ordinary judicial review in North
Carolina; perhaps not. If not, then, in order to ensure that
Harper I
had not “arrogate[d]” the power of regulating fed-
eral elections,
ante
, at 29, we would presumably have
needed to ask next whether it exceeded the bounds of ordi-
nary judicial review in North Carolina to find that the spe-
cific congressional map
here
violated those prohibitions. Af-
ter all, in constitutional judgments of this kind, it can be
difficult 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 Common Cause
,
Even in cases that do not involve a justiciability mis- match, the majority’s advice invites questions of the most far-reaching scope. What are “the bounds of ordinary judi- cial review”? What methods of constitutional interpreta- tion 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 *65 to meaningful or principled adjudication by federal courts. In most cases, it seems likely that the “the bounds of or- dinary judicial 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 questions to be quickly resolved with generic statements of deference to the state courts. On the other hand, there are bound to be exceptions. They will arise hap- hazardly, 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 re- view” in construing the state constitution.
I would hesitate long before committing the Federal Ju- diciary 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 , 7 Wall. 506, 514 (1869).
I respectfully dissent.