Moore v. HarperMoore v. Harper
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., 200 U. S. 321, 337.
The Elections Clause of the Federal Constitution requires “the Legislature” of each State to prescribe the rules governing federal elections.
After this Court granted certiorari, the North Carolina Supreme Court issued a decision addressing a remedial map adopted by the trial court. Harper v. Hall, 383 N. C. 89, 125, 881 S. E. 2d 156, 181 (Harper II). The North Carolina Supreme Court then granted the legislative
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 partisan gerrymandering claims are justiciable under the North Carolina Constitution. But the court did not purport to alter or amend the judgment 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 jurisdiction. Chafin v. Chafin, 568 U. S. 165, 172 (internal quotation marks omitted).
This Court also has jurisdiction to review the judgment in Harper I under
2. The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections.
Marbury v. Madison, 1 Cranch 137, famously proclaimed this Court‘s authority to invalidate laws that violate the Federal Constitution. But Marbury did not invent the concept of judicial review. State courts had already begun to impose restraints on state legislatures, even before the Constitutional Convention, and the practice continued to mature during the founding era. James Madison extolled judicial review as one of the key virtues of a constitutional system, and the concept of judicial review was so entrenched by the time the Court decided Marbury that Chief Justice Marshall referred to it as one of society‘s “fundamental principles.” Id., at 177..
The Elections Clause does not carve out an exception to that fundamental principle. When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review. Pp. 11–26.
(a) In Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, this Court examined the Elections Clause‘s application to a provision of the Ohio Constitution permitting the State‘s voters to reject, by popular vote, any law enacted by the State‘s General Assembly. This Court upheld the Ohio Supreme Court‘s determination that the Federal Elections Clause did not preclude subjecting legislative acts under the Clause to a popular referendum, rejecting the contention that “to include the referendum within state legislative power for the purpose of apportionment is repugnant to §4 of Article I [the Elections Clause].” Id., at 569. And in Smiley v. Holm, 285 U. S. 355, this Court considered the effect of a Governor‘s veto, pursuant to his authority under the State‘s Constitution, of a congressional redistricting plan. This Court held that the Governor‘s veto did not violate the Elections Clause, reasoning that a state legislature‘s “exercise of . . . authority” under the Elections Clause “must be in accordance with the method which the State has prescribed for legislative enactments.” Id., at 367. The Court highlighted that the Federal Constitution contained no “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.
This Court recently reinforced the teachings of Hildebrant and Smiley in Arizona State Legislature v. Arizona Independent Redistricting Comm‘n, 576 U. S. 787, a case concerning the constitutionality of an Arizona ballot initiative to amend the State Constitution and to vest redistricting authority in an independent commission. Significantly
The basic principle of these cases—reflected in Smiley‘s unanimous command that a state legislature may not “create congressional districts independently of” requirements imposed “by the state constitution with respect to the enactment of laws,” 285 U. S., at 373—commands 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 character, governed only by restraints found in the Federal Constitution. The argument to the contrary 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. Thus, when a state legislature carries out its federal constitutional power to prescribe rules regulating federal elections, it acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the state legislature‘s exercise of power.
This Court‘s decision in McPherson v. Blacker, 146 U. S. 1, in which the Court analyzed the Constitution‘s similarly worded Electors Clause, is inapposite. That decision did not address any conflict between state constitutional provisions and state legislatures. Nor does Leser v. Garnett, 258 U. S. 130, which involved a contested vote by a state legislature to ratify a federal constitutional amendment, help petitioners. That case concerned the power of state legislatures to ratify amendments to the Federal Constitution. But fashioning regulations governing federal elections “unquestionably calls for the exercise of lawmaking authority.” Arizona State Legislature, 576 U. S., at 808, n. 17. And the exercise of such authority in the context of the Elections Clause is subject to the ordinary constraints on lawmaking in the state constitution. Pp. 18–22.
(c) Petitioners concede that at least some state constitutional provisions can restrain a state legislature‘s exercise of authority under the Elections Clause, but they read Smiley and Hildebrant to differentiate between procedural and substantive constraints. But neither case drew such a distinction, and petitioners do not in any event offer a defensible line between procedure and substance in this context. Pp. 22–24.
(d) Historical practice confirms that state legislatures remain
3. Although the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, federal courts must not abandon their duty to exercise judicial review. This Court has an obligation to ensure that state court interpretations of state law do not evade federal law. For example, States “may not sidestep the Takings Clause by disavowing traditional property interests.” Phillips v. Washington Legal Foundation, 524 U. S. 156, 167. While the Court does not adopt a test by which state court interpretations of state law can be measured in cases implicating the Elections Clause, state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.
The Court need not decide whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause, as petitioners did not meaningfully present the issue in this Court. Pp. 26–29.
380 N. C. 317, 868 S. E. 2d 499, affirmed.
ROBERTS, C. J., delivered the opinion of the Court, in which SOTOMAYOR, KAGAN, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. KAVANAUGH, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion in which GORSUCH, J., joined, and in which ALITO, J., joined as to Part I.
CHIEF JUSTICE ROBERTS 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.”
In drawing the State‘s congressional map, North Carolina‘s Legislature exercised authority under the Elections Clause of the Federal Constitution, which expressly requires “the Legislature” of each State to prescribe “[t]he Times, Places and Manner of ” federal elections.
I
The Elections Clause provides: “The 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.”
A
The 2020 decennial census showed that North Carolina‘s population had increased by nearly one million people, entitling the State to an additional seat in its federal congressional delegation. U. S. Census Bureau, 2020 Census Apportionment Results (2021) (Table A). Following those results, North Carolina‘s General Assembly set out to redraw the State‘s congressional districts. North Carolina League of Conservation Voters, Inc. v. 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 remanded on other grounds, Harper v. Hall, 380 N. C. 317, 868 S. E. 2d 499 (2022) (Harper I). The General Assembly also drafted new maps for the State‘s legislative districts, including the State House and the State Senate. Id., at 328–329, 868 S. E. 2d, at 513. In November 2021, the Assembly enacted three new maps, each passed along party lines. Id., at 329, 868 S. E. 2d, at 513; see
Shortly after the new maps became law, several groups of plaintiffs—including the North Carolina League of Conservation Voters, Common Cause, and individual voters—sued in state court. The plaintiffs asserted that each map constituted an impermissible partisan gerrymander in violation of the North Carolina Constitution. Harper I, 380 N. C., at 329–330, 868 S. E. 2d, at 513–514.1 At trial before a three-judge panel of the Wake County Superior Court, the plaintiffs presented expert testimony and other evidence to support their claims that North Carolina‘s General Assembly drew state legislative and federal congressional maps to favor Republican candidates. Id., at 332, 868 S. E. 2d, at 515. The trial court agreed, finding that the General Assembly‘s 2021 congressional districting map was “a partisan outlier intentionally and carefully designed to maximize Republican advantage in North Carolina‘s Congressional delegation.” Id., at 345, 868 S. E. 2d, at 522 (internal quotation marks omitted). But the court denied relief, reasoning that the partisan gerrymandering claims “amounted to political questions that are nonjusticiable under the North Carolina Constitution.” Id., at 348, 868 S. E. 2d, at 524.
The North Carolina Supreme Court reversed, holding that the legislative defendants violated state law “beyond a reasonable doubt” by enacting maps that constituted partisan gerrymanders. Id., at 353, 868 S. E. 2d, at 528. It also rejected the trial court‘s conclusion that partisan gerrymandering claims present a nonjusticiable political question. Ibid. The Court acknowledged our decision in Rucho v. Common Cause, which held “that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” 588 U. S. ___, ___ (2019) (slip op., at 30);
After holding that the 2021 districting maps “substantially infringe upon plaintiffs’ fundamental right to equal voting power,” the Court struck down the maps and remanded the case to the trial “court to oversee the redrawing of the maps by the General Assembly or, if necessary, by the court.” Id., at 403, 868 S. E. 2d, at 559. The Court entered judgment on February 15, 2022. Harper v. Hall, No. 413PA21, App. to Pet. for Cert. 306–309. Two days later, the General Assembly adopted a remedial congressional redistricting plan. See 2022 N. C. Sess. Laws p. 3, §2. But the trial court rejected that plan and adopted in its place interim maps developed by several Special Masters for use in the 2022 North Carolina congressional elections. North Carolina League of Conservation Voters, Inc. v. Representative Destin Hall, 21 CVS 015426 etc. (Super. Ct. Wake Cty., N. C., Feb. 23, 2022), App. to Pet. for Cert. 278a–279a, aff ‘d in part, rev‘d in part, and remanded, Harper v. Hall, 383 N. C. 89, 881 S. E. 2d 156 (2022) (Harper II ).
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 Supreme Court‘s decision. We declined to issue emergency relief but later granted certiorari. 597 U. S. ___ (2022).
B
Following our grant of certiorari, the North Carolina Supreme Court heard an appeal concerning the trial court‘s remedial order. In December 2022, the Court issued a decision affirming in part, reversing in part, and remanding the case. As relevant, it agreed with the trial court‘s determination that the General Assembly‘s remedial congressional plan “fell short” of the requirements set forth in Harper I. Harper II, 383 N. C., at 125, 881 S. E. 2d, at 181.
The legislative defendants sought rehearing, requesting that the North Carolina Supreme Court “withdraw” its remedial opinion in Harper II. Pet. for Rehearing in Harper v. Hall, No. 413PA21, p. 25 (Jan. 20, 2023) (Pet. for Rehearing). 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 defendants. The Court withdrew its opinion in Harper II, concerning the remedial maps, and “overruled” its decision in Harper I. See Harper v. Hall, ___ N. C. ___, 886 S. E. 2d 393 (2023). Relying on our decision in Rucho and on a renewed look at the constitutional provisions at issue, the Court repudiated Harper I‘s conclusion that partisan gerrymandering claims are justiciable under the North Carolina Constitution. See ___ N. C., at ___, 886 S. E. 2d, at 431.
The North Carolina Supreme Court dismissed the plaintiffs’ claims with prejudice. Id., at ___, 886 S. E. 2d, at 401. But it did not reinstate the 2021 congressional plans that Harper I had struck down under the North Carolina Con-
II
Before turning to the merits, we must “determine as a threshold matter that we have jurisdiction.” Goodyear Atomic Corp. v. Miller, 486 U. S. 174, 178 (1988). The Constitution provides for our jurisdiction over “Cases” and “Controversies.”
The North Carolina Supreme Court‘s decision to withdraw Harper II and overrule Harper I does not moot this
The North Carolina Supreme Court “overruled” Harper I, thereby granting the specific relief requested by the legislative defendants. As a result, partisan gerrymandering claims are no longer justiciable under the State‘s Constitution. Harper, ___ N. C., at ___, 886 S. E. 2d, at 449. But although the defendants may now draw new congressional maps, they agree that the North Carolina Supreme Court overruled only the “reasoning of Harper I” and did not “disturb . . . its judgment nor . . . alter the presently operative statutes of North Carolina.” Second Supp. Letter Brief for Petitioners 3. In other words, although partisan gerrymandering claims are no longer viable under the North Carolina Constitution, the North Carolina Supreme Court has done nothing to alter the effect of the judgment in Harper I enjoining the use of the 2021 maps. As a result, the legislative defendants’ path to complete relief runs through this Court.
Were we to reverse the judgment in Harper I—a step not taken by the North Carolina Supreme Court—the 2021 plans enacted by the legislative defendants would again take effect. The parties accordingly continue to have a “personal stake in the ultimate disposition of the lawsuit.” Chafin v. Chafin, 568 U. S. 165, 172 (2013) (internal quotation marks omitted).
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 v. Cromartie, 526 U. S. 541, 546, n. 1 (1999) (“Because the State‘s 1998 law provides that the State will revert to the 1997 districting plan upon a favorable decision of this Court . . . this case is not moot.“).
We also have jurisdiction to review the judgment in Harper I under
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
Harper I fits within this second category of cases described in Cox Broadcasting. By striking down the 2021 congressional plans enacted by the General Assembly, Harper I “finally decided” the “federal issue” whether the Elections Clause insulates state legislatures from review by state courts for compliance with state law. See 380 N. C., at 390–391, 868 S. E. 2d, at 551–552. That issue both has survived and requires decision because subsequent proceedings have neither altered Harper I‘s analysis of the federal issue nor negated the effect of its judgment striking down the 2021 plans. In its decision “overruling” Harper I, the North Carolina Supreme Court in fact reaffirmed that it retains the authority to review congressional districting plans for compliance with state law. Harper, ___ N. C., at ___, 886 S. E. 2d, at 422.
That the North Carolina Supreme Court overruled Harper I does not affect the judgment in that case for purposes of §1257(a). “[T]he res judicata consequences of a final, unappealed judgment on the merits” are not “altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.” Federated Department Stores, Inc. v. Moitie, 452 U. S. 394, 398 (1981). The North Carolina Supreme Court has said much the same. East Carolina Lumber Co. v. West, 247 N. C. 699, 701, 102 S. E. 2d, 248, 249 (1958) (“An erroneous or irregular judgment binds the parties thereto until corrected in a proper manner.“). That Court did not purport to alter or amend in any way the judgment in Harper I. In short, the record before us shows that Harper I “finally decided” the Elections Clause issue, which has survived subsequent proceedings in the North Carolina Supreme Court such that it continues to “require decision” by this Court. Cox Broadcasting, 420 U. S., at 480.
JUSTICE THOMAS sees it differently. He correctly ob-
In an effort to cast doubt on these consistent representations by the injured party before us, JUSTICE THOMAS contends that the legislative defendants have already received complete relief because nothing now prevents the implementation of the 2021 maps. Post, at 15 (dissenting opinion). For the reasons stated above, that would come as a surprise to both the legislative defendants and the North Carolina Supreme Court. The dissent also emphasizes that several of the plaintiffs contest our jurisdiction. Post, at 6. But that has been their position from the very beginning,
This Court has before it a judgment issued by a State‘s highest court that adjudicates a federal constitutional issue. The defendants did not ask the North Carolina Supreme Court to vacate that judgment, that court did not purport to do so, and the defendants now concede that they remain bound by it. Cox Broadcasting considered our exercise of jurisdiction where the “federal issue . . . will survive and require decision regardless of the outcome of future state-court proceedings.” 420 U. S., at 480. Unlike cases in which we must anticipate what the future might hold, we now know the resolution of the anticipated state court proceedings. The record shows that Harper I finally decided the Elections Clause question, the judgment in that case continues to bind the parties before us, and the 2021 congressional maps would again take effect in North Carolina were we to reverse. Accordingly, we have jurisdiction under both Article III and §1257(a).
III
The question on the merits is whether the Elections Clause insulates state legislatures from review by state courts for compliance with state law.
Since early in our Nation‘s history, courts have recognized their duty to evaluate the constitutionality of legislative acts. We announced our responsibility to review laws
Marbury proclaimed our authority to invalidate laws that violate the Federal Constitution, but it did not fashion this concept out of whole cloth. Before the Constitutional Convention convened in the summer of 1787, a number of state courts had already moved “in isolated but important cases to impose restraints on what the legislatures were enacting as law.” G. Wood, The Creation of the American Republic 1776–1787, pp. 454–455 (1969). Although judicial review emerged cautiously, it matured throughout the founding era. These state court decisions provided a model for James Madison, Alexander Hamilton, and others who would later defend the principle of judicial review.
In the 1786 case Trevett v. Weeden, for example, lawyer James Varnum challenged a Rhode Island statute on the ground that it failed to provide the right to a jury trial. Although Rhode Island lacked a written constitution, Varnum argued that the State nevertheless had a constitution reflecting the basic historical rights of the English. And, he contended, the courts must honor “the principles of the constitution in preference to any acts of the General Assembly.” J. Varnum, The Case, Trevett v. Weeden, reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History 424 (1971). Varnum won, to the dismay of the State‘s legislature, which replaced four of the five judges involved. W. Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev.
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 established.” Ibid. James Iredell, who would later serve as an inaugural Justice of this Court, penned at the time an open letter “To the Public” expounding a robust concept of judicial review. 2 Life and Correspondence of James Iredell 145 (1846). “[T]he power of the Assembly,” he wrote, “is limited and defined by the constitution.” Id., at 146. The legislature, 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 v. 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 judicial review at the Constitutional Convention of 1787. On July 17, James Madison spoke in favor of a federal council of revision that could negate laws passed by the States. He
Writings in defense of the proposed Constitution echoed these comments. In the Federalist Papers, Alexander Hamilton maintained that “courts of justice” have the “duty . . . to declare all acts contrary to the manifest tenor of the Constitution 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 governments.” Id., No. 81, at 482.
State cases, debates at the Convention, and writings defending the Constitution all advanced the concept of judicial review. And in the years immediately following ratification, courts grew assured of their power to void laws incompatible with constitutional provisions. See Treanor, 58 Stan. L. Rev., at 473, 497–498. The idea that courts may review legislative action was so “long and well established” by the time we decided Marbury in 1803 that Chief Justice Marshall referred to judicial review as “one of the fundamental principles of our society.” 1 Cranch, at 176–177.
IV
We are asked to decide whether the Elections Clause carves out an exception to this basic principle. We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.
A
We first considered the interplay between state constitutional provisions and a state legislature‘s exercise of authority under the Elections Clause in Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565 (1916). There, we examined the application to the Elections Clause of a provision of the Ohio Constitution permitting the State‘s voters “to approve or disapprove by popular vote any law enacted by the General Assembly.” Id., at 566. In 1915, the Ohio General Assembly drew new congressional districts, which the State‘s voters then rejected through such a popular referendum. Asked to disregard the referendum, the Ohio Supreme Court refused, explaining that the Elections Clause—while “conferring the power therein defined upon the various state legislatures“—did not preclude subjecting legislative Acts under the Clause to “a popular vote.” State ex rel. Davis v. Hildebrant, 94 Ohio St. 154, 163, 114 N. E. 55, 58 (1916).
We unanimously affirmed, rejecting as “plainly without substance” the contention that “to include the referendum within state legislative power for the purpose of apportionment is repugnant to §4 of Article I [the Elections Clause].” Hildebrant, 241 U. S., at 569; see also Hawke v. Smith, 253 U. S. 221, 230–231 (1920) (describing Hildebrant as holding that “the referendum provision of the state constitution when applied to a law redistricting the State with a view to representation in Congress was not unconstitutional“).
Smiley v. Holm, decided 16 years after Hildebrant, considered the effect of a Governor‘s veto of a state redistricting
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 prescribed 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. (citing provisions in Massachusetts and New York). Subjecting state legislatures to such a limitation “was no more incongruous with the grant of legislative authority to regulate congressional elections than the fact that the Congress in
This Court recently reinforced the teachings of Hildebrant and Smiley in a case considering the constitutionality of an Arizona ballot initiative. Voters “amended Arizona‘s Constitution to remove redistricting authority from the Arizona Legislature and vest that authority in an independent commission.” Arizona State Legislature v. Arizona Independent 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 ‘legislature,‘” id., at 813–814, and concluded that the people of Arizona retained the authority to create “an alternative legislative process” by vesting the lawmaking power of redistricting in an independent commission, id., at 817. The Court ruled, in short, that although the Elections Clause expressly refers to the “Legislature,” it does not preclude a State from vesting congressional redistricting authority in a body other than the elected group of officials who ordinarily exercise lawmaking power. States, the Court explained,
The significant point for present purposes is that the Court in Arizona State Legislature recognized that whatever authority was responsible for redistricting, that entity remained subject to constraints set forth in the State Constitution. 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 referendum and the Governor‘s veto.” 576 U. S., at 808; see also id., at 840–841 (Roberts, C. J., dissenting) (recognizing that Hildebrant and Smiley support the imposition of “some constraints on the legislature“). The Court dismissed the argument that the Elections Clause divests state constitutions of the power to enforce checks against the exercise of legislative power: “Nothing in [the Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State‘s constitution.” 576 U. S., at 817–818 (majority opinion).
The reasoning we unanimously embraced in Smiley commands our continued respect: A state legislature may not “create congressional districts independently of ” requirements imposed “by the state constitution with respect to the enactment of laws.” 285 U. S., at 373.
B
The legislative defendants and the dissent both contend that, because the Federal Constitution gives state legislatures 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 Thomas, J.). The legislative defendants cite for support Federalist No. 78, which explains that the wielding of legislative
This argument simply ignores the precedent just described. 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 dissent 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. Legislatures, the Framers recognized, “are the mere creatures of the State Constitutions, and cannot be greater than their creators.” 2 Farrand 88. “What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void.” Vanhorne‘s Lessee v. Dorrance, 2 Dall. 304, 308 (Pa. 1795). Marbury confirmed this understanding, 1 Cranch, at 176–177, and nothing in the text of the Elections Clause undermines it. When a state legislature carries out its constitutional power to prescribe rules regulating federal elections, the “commission under which” it exercises authority is twofold. The Federalist No. 78, at 467. The legislature acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the legislature‘s exercise of power.
Turning to our precedents, the defendants quote from our analysis of the Electors Clause in McPherson v. Blacker, 146 U. S. 1 (1892). That Clause—similar to the Elections Clause—provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a [specified]
Our decision in McPherson, however, had nothing to do with any conflict between provisions of the Michigan Constitution 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
The legislative defendants and Justice Thomas 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
But the legislature in Leser performed a ratifying function rather than engaging in traditional lawmaking. The provisions at issue in today‘s case—like the provisions examined in Hildebrant and Smiley—concern a state legislature‘s exercise of lawmaking power. And as we held in Smiley, 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, 285 U. S., at 365–366. In addition, Leser cited for support our decision in Hawke v. Smith, which sharply separated ratification “from legislative action” under the Elections Clause. 253 U. S., at 228. Lawmaking under the Elections Clause, Hawke explained, “is entirely different from the requirement of the Constitution as to the expression of assent or dissent to a proposed amendment to the Constitution.” Id., at 231.
Hawke and Smiley delineated the various roles that the Constitution assigns to state legislatures. Legislatures act as “Consent[ing]” bodies when the Nation purchases land,
By fulfilling their constitutional duty to craft the rules governing federal elections, state legislatures do not consent, ratify, or elect—they make laws. Elections are complex affairs, demanding rules that dictate everything from the date on which voters will go to the polls to the dimensions and font of individual ballots. Legislatures must “provide a complete code for congressional elections,” including regulations “relati[ng] to notices, registration, supervision
In sum, our precedents have long rejected the view that legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution.
C
Addressing our decisions in Smiley and Hildebrant, both the legislative defendants and Justice Thomas concede that at least some state constitutional provisions can restrain a state legislature‘s exercise of authority under the Elections Clause. But they read those cases to differentiate between procedural and substantive constraints. Brief for Petitioners 24; post, at 21–22 (opinion of Thomas, J.). Smiley, in their view, stands for the proposition that state constitutions may impose only procedural hoops through which legislatures must jump in crafting rules governing federal elections. This concededly “formalistic” approach views the Governor‘s veto at issue in Smiley as one such procedural restraint. Tr. of Oral Arg. 62. But when it comes to substantive 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
The same goes for the Court‘s decision in Arizona State Legislature. The defendants attempt to cabin that case by arguing that the Court did not address substantive limits on the regulation of federal elections. But as in Smiley, the Court‘s decision in Arizona State Legislature discussed no difference between procedure and substance.
The dissent reads Smiley and Arizona State Legislature in a different light. Justice Thomas thinks those cases say nothing about whether a State can impose “substantive limits” on the legislature‘s exercise of power under the Elections 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. 285 U. S., at 365. We held that they do. “Much that is urged in argument with regard to the meaning of the term ‘Legislature,‘” we explained, “is beside the point.” Ibid. And we concluded in straightforward terms that legislatures must abide by “restriction[s] imposed by state constitutions . . . when exercising the lawmaking power” under the Elections Clause. Id., at 369. Arizona State Legislature said much the same, emphasizing that, by its text, nothing in the Elections Clause offers state legislatures carte blanche to act “in defiance of provisions of the State‘s constitution.” 576 U. S., at 818.
The defendants and Justice Thomas do not in any event offer a defensible line between procedure and substance in this context. “The line between procedural and substantive law is hazy.” Erie R. Co. v. Tompkins, 304 U. S. 64, 92 (1938) (Reed, J., concurring in part); see also Shady Grove
D
Were there any doubt, historical practice confirms that state legislatures remain bound by state constitutional restraints when exercising authority under the Elections Clause. We have long looked to “settled and established practice” to interpret the Constitution. The Pocket Veto Case, 279 U. S. 655, 689 (1929). And we have found historical practice particularly pertinent when it comes to the Elections and Electors Clauses. Smiley, 285 U. S., at 369 (Elections Clause); Chiafalo v. Washington, 591 U. S. ___, ___–___ (2020) (slip op., at 12–14) (Electors Clause).
Two state constitutional provisions adopted shortly after the founding offer the strongest evidence. Delaware‘s 1792 Constitution provided that the State‘s congressional representatives “shall be voted for at the same places where representatives in the State legislature are voted for, and in the same manner.”
Besides the two specific provisions in Maryland and Delaware, multiple state constitutions at the time of the founding regulated federal elections by requiring that “[a]ll elections shall be by ballot.”
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 legislature of each state shall direct.” Art. V. The two provisions
The defendants stress an 1820 convention held in Massachusetts to amend the Commonwealth‘s Constitution. After 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 provision would run afoul of the Elections Clause by “assum[ing] a control over the Legislature, which the constitution of the United States does not justify.” Journal of the Debates and Proceedings in the Convention of Delegates 110 (1853). But Story‘s comment elicited little discussion, and reflects the views of a jurist who, although “a brilliant and accomplished man, . . . was not a member of the Founding generation.” U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 856 (1995) (Thomas, J., dissenting).
V
A
Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed 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”
State law, for example, “is one important source” for defining property rights. Tyler v. Hennepin County, 598 U. S. ___, ___ (2023) (slip op., at 5); see also Board of Regents of State Colleges v. Roth, 408 U. S. 564, 577 (1972) (property rights “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law“). At the same time, the Federal Constitution provides that “private property” shall not “be taken for public use, without just compensation.”
A similar principle applies with respect to the Contracts Clause, which provides that “[n]o state shall . . . pass any . . . Law impairing the Obligation of Contracts.”
Cases raising the question whether adequate and independent grounds exist to support a state court judgment involve a similar inquiry. We have in those cases considered whether a state court opinion below adopted novel reasoning to stifle the “vindication in state courts of . . . federal
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 deference 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 v. Gore, 531 U. S. 98 (2000) (per curiam). Our decision in that case turned on an application of the Equal Protection Clause of the Fourteenth Amendment. Id., at 104–105. In separate writings, several Justices addressed whether Florida‘s Supreme Court, in construing provisions of Florida statutory law, exceeded the bounds of ordinary judicial review to an extent that its interpretation violated the Electors Clause.
Chief Justice Rehnquist, joined in a concurring opinion by Justice Thomas and Justice Scalia, acknowledged the usual deference we afford state court interpretations of state law, but noted “areas in which the Constitution requires this Court to undertake an independent, if still deferential, 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 interpretation “transcends the limits of reasonable statutory interpretation 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 implicating the Elections Clause. The questions presented in
B
We decline to address whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause. The legislative defendants did not meaningfully present the issue in their petition for certiorari or in their briefing, nor did they press the matter at oral argument. See Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U. S. 192, 206–208 (1997); see also California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 10). Counsel for the defendants expressly disclaimed the argument that this Court should reassess the North Carolina Supreme Court‘s reading of state law. Tr. of Oral Arg. 7 (“We‘re not asking this Court to second-guess or reassess. We say take the North Carolina Supreme Court‘s decision on face value and as fairly reflecting North Carolina law . . . .“). When pressed whether North Carolina‘s Supreme Court did not fairly interpret its State Constitution, counsel reiterated that such an argument was “not our position in this Court.” Id., at 54. Although counsel attempted to expand the scope of the argument in rebuttal, such belated efforts do not overcome prior failures to preserve the issue for review. See this Court‘s
* * *
State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause. But federal
It is so ordered.
Justice Kavanaugh, 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) (Kavanaugh, 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
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
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.
Justice Thomas, with whom Justice Gorsuch joins, and with whom Justice Alito joins as to Part I, dissenting.
This Court sits “to resolve not questions and issues but ’Cases’ or ’Controversies.‘” Arizona Christian School Tuition Organization v. Winn, 563 U. S. 125, 132 (2011); see
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 issue on which it opines—a federal defense to claims already dismissed on other grounds—can no longer affect the judgment 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 dismissed, I respectfully dissent.
Here is the case before us in a nutshell: A group of plaintiffs sued various state officials under state law. The defendants raised both state-law and federal-law defenses. In the interlocutory judgment below, the State Supreme Court rejected both defenses and remanded for further proceedings. 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 finally 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, reasoning 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 v. Preczewski, 592 U. S. ___, ___ (2021) (Roberts, C. J., dissenting) (slip op., at 3), but as an ad hoc branch of a state legislature. That is emphatically not our job. Compare
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
Petitioners, state legislators representing North Carolina‘s interest in the enforcement of the Act, see
Initially, a three-judge trial court endorsed petitioners’ state-law defense and entered a final judgment dismissing plaintiffs-respondents’ claims with prejudice. But, on appeal, the North Carolina Supreme Court reversed that judgment. See Harper v. Hall, 380 N. C. 317, 868 S. E. 2d 499 (2022) (Harper I). In Harper I, the court held that the 2021 Act violated the State Constitution, enjoined its implementation, and remanded the case to the trial court for remedial proceedings. In doing so, Harper I rejected both petitioners’ state-law justiciability defense and their federal Elections Clause defense.
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
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, 456 U. S. 430 (1982) (per curiam) (emphasis added). In granting certiorari, we relied on one of those doctrinal exceptions, premised on the assumption that “the federal issue” in this case would “survive and require decision regardless of the outcome of future state-court proceedings.” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 480 (1975).
As it turned out, that assumption was wrong. After Harper I, on remand, the trial court adopted a remedial districting 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 Supreme Court released an opinion applying Harper I and affirming 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 “revisit[ed] the crucial issue in this case: whether claims of partisan gerrymandering are justiciable under the state constitution.” Harper v. 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
“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, political 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 dismissed with prejudice.” Id., at ___, 886 S. E. 2d, at 449.
In short, this case is over, and petitioners won. The trial court‘s original final judgment in favor of petitioners, affirmed by the State Supreme Court in Harper III, represents “the final determination of the rights of the parties” in this case.
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 v. Argus Leader Media, 588 U. S. ___, ___ (2019) (slip op., at 4); see also Ex parte Bollman, 4 Cranch 75, 86 (1807) (“The criterion [of] appellate . . . jurisdiction, is that it revises and corrects the decisions of another tribunal“). But petitioners are not injured by the judgment of Harper I at all, nor could we redress any
The United States understands this. See Supplemental Letter Brief for United States as Amicus Curiae 3 (May 11, 2023) (“[T]he question this Court granted certiorari to decide is now moot because the Court‘s resolution of that question could not affect the disposition of this case“). So do the elections 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) (“Petitioners have won a full victory in state court“). As one group of plaintiffs-respondents put it, “there is no non-frivolous basis for jurisdiction here.” Ibid.
B
The majority does not contest that the Elections Clause issue in this case was only a defense to plaintiffs-respondents’ claims for relief. Nor does it deny that 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
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 proceeding to the merits.” Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U. S. 316, 324 (2008).
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
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 issue in this case by dismissing plaintiffs-respondents’ claims on alternative state-law grounds.3 Likewise, the idea that
In the same vein, the majority‘s suggestion that Harper I has any “res judicata consequences” is completely inapposite. Ante, at 9 (internal quotation marks omitted). Res judicata is the principle that “[a] final judgment on the merits of an action” bars relitigation “in [a] second action” of the same claim or of issues actually litigated and necessary to the judgment in the first action. Federated Department Stores, Inc. v. Moitie, 452 U. S. 394, 398 (1981); see also Taylor v. Sturgell, 553 U. S. 880, 892 (2008). Harper I was not a final judgment (as the majority concedes by applying Cox Broadcasting), so res judicata simply has nothing to do with it. Nothing decided by Harper I was res judicata in the second state-court appeal, see Southern R. Co. v. Clift, 260 U. S. 316, 319 (1922), nor would Harper I ‘s interlocutory Elections Clause holding have any res judicata effect in a future action between these parties, see Restatement (Second) of Judgments §27, and Comment h, and Illus. 13 and 14 (1980) (only issue determinations essential to a final
How could petitioners still be injured, and what more could this Court possibly do for them? The majority suggests 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 injunction only ran against the conduct of defendants-respondents—the state officials who actually implement election laws—not petitioners as legislators. See Berger, 597 U. S., at ___ (slip op., at 2). Next, the majority fails to consider what it would mean if the injunction is still binding: that defendants-respondents are liable to “be held in contempt and put in jail” if they ever implement the 2021 Act, Richmond Cty. Bd. of Ed. v. Cowell, 254 N. C. App. 422, 426, 803 S. E. 2d 27, 30–31 (2017), even though Harper III dismissed this suit‘s challenge to the Act as “beyond the reach of [North Carolina‘s] courts,” ___ N. C., at ___, 886 S. E. 2d, at 431 (internal quotation marks omitted). That
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” interchangeably 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 order striking down the 2021 pla[n],” thus “alter[ing] the presently operative statutes of North Carolina” such that the 2021 Act would “again take effect.” Ante, at 7–8 (internal 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 immediately 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
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, 404 U. S., at 246 (internal quotation marks omitted), by “determin[ing] the respective rights and liabilities or duties” of the parties before a court in a particular case, Nicholson v. State Ed. Assistance Auth., 275 N. C. 439, 447, 168 S. E. 2d 401, 406 (1969). Thus, a judgment binds the rights of the parties in that case, see Taylor, 553 U. S., at 892–893, and it awards remedies that “operate with respect to [those] specific parties,” California, 593 U. S., at ___ (slip op., at 8) (internal quotation marks omitted). In deciding any case, the court must “ascertai[n] and declar[e] the law applicable to the controversy“; this duty, in turn, implies “the negative power to disregard an unconstitutional enactment” in deciding the case. Massachusetts v. Mellon, 262 U. S. 447, 488 (1923); accord, Nicholson, 275 N. C., at 447, 168 S. E. 2d, at 406; Marbury v. Madison, 1 Cranch 137, 176–178 (1803). But this negative power of judicial review is not a “power per se to review and annul acts of [legislation] on the ground that they are unconstitutional,” Mellon, 262 U. S., at 488; “to change or to repeal statutes,” Person v. Doughton, 186 N. C. 723, 725, 120 S. E. 481, 483 (1923); or to issue orders that “operate on legal rules in the abstract,” California, 593 U. S., at ___ (slip op., at 8) (internal quotation marks omitted). Courts of law simply do not render “judgments” that toggle statutes from “operative” to “inoperative” and back again, as if judicial review were some sort of in rem jurisdiction over legislative Acts.
Indeed, such a conception would contradict the most basic
The majority‘s theory thus fails twice over, both as a description 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 respective rights and liabilities or duties of litigants in [the] controversy” 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: “Reversed and remanded,” referring to the lower court judgment and the case between these parties. 380 N. C., at 404, 868 S. E. 2d, at 560 (some capitalization deleted). The judicial power operates upon parties and cases, not statutes,
Even if it were, we would still have no case or controversy in front of us. A freestanding “judgment” of statutory invalidation—neutralizing the 2021 Act in some manner transcending 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 v. Atlantic Coast Line Co., 211 U. S. 210, 226–227 (1908). “We sit as a court of law, not a council of revision,” and “[o]ur powers of judicial review are judicial, not legislative, in nature.” Mackey, 401 U. S., at 697 (opinion of Harlan, J.). The only power that we ever could have exercised here was to modify the adjudicated rights and liabilities of the parties with respect to the claims in this action. Because we plainly cannot do so, no matter what we think about the Elections Clause, this proceeding is moot.
In that light, the post-Harper I remedial Act and its “trigger provisio[n]” plainly can make no difference to our jurisdiction or lack thereof. Ante, at 8. When passed, that Act was essentially a change in the State‘s conduct under judicial constraint (the result of Harper I ), but with the declared intention of resuming the original conduct if that constraint were removed. That declaration kept the controversy alive while the constraint still existed, as in Hunt v. Cromartie, 526 U. S. 541, 545, n. 1 (1999). But, after Harper III, there is no more constraint in this case. Harper I has been overruled, and plaintiffs-respondents’ claims have been dismissed in a final judgment. Nothing about this case prevents the State from either enacting or implementing any districting plan. If “the presently operative statutes of North Carolina” need to be “alter[ed],” that is the General Assembly‘s job, not ours. Ante, at 7 (internal quotation marks omitted). Regardless, petitioners have fully prevailed in this case, and plaintiffs-respondents have not obtained any enforceable relief that could affect the conduct of future elections.
Indeed, to the extent the trigger provision adds anything to the majority‘s analysis, it only underscores the absence of a justiciable case or controversy.6 A state legislature is
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.”
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 uncontroversial, as it is “the unavoidable consequence of th[e] supremacy” 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
The second premise is that regulating the times, places, and manner of congressional elections “‘is no original prerogative of state power,‘” so that “such power ‘had to be delegated to, rather than reserved by, the States.‘” Cook v. Gralike, 531 U. S. 510, 522 (2001) (first quoting 1 J. Story, Commentaries on the Constitution of the United States §627 (3d ed. 1858) (Story); then quoting U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 804 (1995)). This premise is firmly supported by this Court‘s precedents, which have also held that the Elections Clause is “the exclusive delegation of ” such power, as “[n]o other constitutional provision gives the States authority over congressional elections.” Cook, 531 U. S., at 522–523; see also United States v. Classic, 313 U. S. 299, 315 (1941) (“While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states, this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by [the Elections Clause]” (citations omitted)).
The third premise is that “the Legislature thereof ” does not mean the people of the State or the State as an undifferentiated body politic, but, rather, the lawmaking power as it exists under the State Constitution. This premise comports with the usual constitutional meanings of the words “State” and “Legislature,” as well as this Court‘s precedents. “A state, and the legislature of a state, are quite different political beings.” Story §628. “A state, in the ordinary sense of the Constitution, is a political community of free citizens . . . organized under a government sanctioned and limited by a written constitution.” Texas v. White, 7 Wall. 700, 721 (1869). “‘Legislature,‘” on the other hand, generally means “‘the representative body which ma[kes] the laws of the people.‘” Smiley v. Holm, 285 U. S. 355, 365 (1932) (quoting Hawke v. Smith, 253 U. S. 221, 227 (1920)).
If these premises hold, then petitioners’ conclusion follows: In prescribing the times, places, and manner of congressional elections, “the lawmaking body or power of the state, as established by the state Constitution,” id., at 10, 127 N. W., at 850, performs “a federal function derived from the Federal Constitution,” which thus “transcends any limitations sought to be imposed by the people of a State,” Leser, 258 U. S., at 137. As shown, each premise is easily supported and consistent with this Court‘s precedents. Petitioners’ conclusion also mirrors the Court‘s interpretation of parallel language in the Electors Clause9 in McPherson v. Blacker, 146 U. S. 1 (1892): “[T]he words, ‘in such manner as the legislature thereof may direct,‘” “operat[e] as a limitation upon the State in respect of any attempt to circumscribe the legislative power.” Id., at 25.10
The majority rejects petitioners’ conclusion, but seemingly without rejecting any of the premises from which that conclusion follows. Its apparent rationale—that Hildebrant, Smiley, and Arizona State Legislature have already foreclosed petitioners’ argument—is untenable, as it requires disregarding a principled distinction between the issues in those cases and the question presented here. In those cases, the relevant state-constitutional provisions addressed the allocation of lawmaking power within each
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 enactments.” Id., at 367. But, if the power in question is not original to the people of each State and is conferred upon the constituted legislature of the State, then it follows that the people of the State may not dictate what laws can be enacted under that power—precisely as they may not dictate what constitutional amendments their legislatures can ratify under Article V. See Leser, 258 U. S., at 137.11 Ac
The majority indicates that it does not perceive this distinction 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 disagreement with its policy consequences, has the governor exercised a procedural or substantive restraint on lawmaking?” Ante, at 24. The answer is straightforward: The power of approving or vetoing bills is “a part of the legislative process” because it is “a part in the making of state laws.” Smiley, 285 U. S., at 368–369; see also INS v. Chadha, 462 U. S. 919, 933, 951, 954, 957, n. 22, 958 (1983) (repeatedly referring to bicameralism and presentment as
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 delegates 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
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 interpretation of the Clause, it is impossible to be sure what the consequences of that interpretation will be. However, judging from the majority‘s brief sketch of the regime it envisions, I worry that today‘s opinion portends serious troubles ahead for the Judiciary.
The majority uses the separate writings in Bush v. Gore, 531 U. S. 98 (2000) (per curiam), as a loose touchstone for the kind of judicial review that it apparently expects federal courts to conduct in future cases like this one. On its face, this is an awkward analogy, for there is a significant difference between Bush and Harper I. In Bush, the state court‘s judgment was based on an interpretation of state statutory law, enacted by the state legislature. Thus, the relevant
By doing so, today‘s majority concludes, Harper I did not commit per se error, as the Elections Clause permits state courts to apply substantive state-constitutional provisions to the times, places, and manner of federal elections. At the same time, state courts are warned that they operate under federal-court supervision, lest they “transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” Ante, at 29. Thus, under the majority‘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 uncertain 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, 4 Wheat., at 407. When “it is a constitution [courts] are expounding,” ibid., not a detailed statutory scheme, the standards to judge the fairness of a given interpretation are typically fewer and less definite.
Nonetheless, the majority‘s framework appears to demand that federal courts develop some generalized concept of “the bounds of ordinary judicial review,” ante, at 28; apply it to the task of constitutional interpretation within each State; and make that concept their rule of decision in
Even in cases that do not involve a justiciability mismatch, the majority‘s advice invites questions of the most far-reaching scope. What are “the bounds of ordinary judicial review“? What methods of constitutional interpretation do they allow? Do those methods vary from State to State? And what about stare decisis—are federal courts to review state courts’ treatment of their own precedents for some sort of abuse of discretion? The majority‘s framework would seem to require answers to all of these questions and more.
In the end, I fear that this framework will have the effect of investing potentially large swaths of state constitutional law with the character of a federal question not amenable
I would hesitate long before committing the Federal Judiciary 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.