Speakers: John Walsh, Felicia Ellsworth and Seth Waxman
John Walsh: Welcome to In the Public Interest, a podcast from WilmerHale. I’m John Walsh.
Felicia Ellsworth: And I’m Felicia Ellsworth. John and I are partners at WilmerHale, an international law firm that works at the intersection of government, technology and business.
Walsh: Today’s episode is the latest installment of our new Supreme Court miniseries, where we dive into the most hotly contested decisions coming out of the Court this term and discuss the implications of several of the Court’s rulings going forward.
Ellsworth: For today’s episode, we’ll be discussing the Court’s recent decision in Moore v. Harper, which concerns control over electoral redistricting by state legislatures. Joining me to discuss this case is Seth Waxman, a former United States Solicitor General and a partner in WilmerHale’s Washington DC office who specializes in appellate and Supreme Court litigation. Thanks so much, Seth, for joining us on this episode of our Supreme Court miniseries.
Seth Waxman: Thanks, Felicia, for having me. It’s a pleasure to be here again.
Ellsworth: So, Seth, can you start off by walking us through what happened in North Carolina that led to the filing of this lawsuit that ultimately made its way to the Supreme Court?
Waxman: Yes, certainly. So, in the 2020 Census, North Carolina recorded an additional 1,000,000 residents, which entitled it to an additional congressional seat. That required a redistricting which the Republican-controlled North Carolina legislature did. The map that it drew was challenged by a number of groups as constituting a partisan gerrymander, that is, that the legislature had drawn the lines in such a way as to unfairly favor Republican incumbents and Republican candidates. The trial court in North Carolina agreed that it was a partisan and racial gerrymander but held that partisan gerrymandering was not a judicially cognizable claim, that is, the US Constitution didn’t provide judicially manageable standards to determine whether something constituted a partisan gerrymander. The North Carolina Supreme Court reversed. It held that even though the United States Supreme Court had held that partisan gerrymandering did not constitute a cognizable violation of the US Constitution, it did violate the “free elections” clause of North Carolina’s constitution. That was challenged by the Republican legislative leadership. They asked the Supreme Court to stay the operation of the North Carolina Supreme Court’s order. The Supreme Court denied the stay but granted cert. The legal issue concerns a provision of the United States Constitution which says that the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, and the claim of the petitioners in the case was that because the federal Constitution expressly says that the times, places and manners of holding elections shall be prescribed by the legislature, that left no role for state Supreme Courts, or for that matter state executives, to question decisions by the state legislature about how district lines would be drawn.
Ellsworth: So tell us a little bit about where this legal theory comes from. I’ve heard it called the “independent state legislature theory,” and I know it didn’t arrive out of thin air in this North Carolina case, so maybe you can give a little bit of background on that.
Waxman: Sure. So, this argument that there is a federal delegation to state legislatures to make these determinations is not an atextual argument, but it is not an argument that has ever had any success in the courts, particularly the Supreme Court. The Supreme Court first considered the question in 1916 in a case called Davis v. Hildebrandt, and this so-called “independent state legislature doctrine” was presented to the Supreme Court and the Supreme Court said no, no, no, just because it says legislature doesn’t mean that it has to be the brick-and-mortar legislature if the state constitution provides another means by which the people can make laws. Sixteen years later, in a case called Smiley v. Holm, the Supreme Court considered a circumstance in which the legislature had made some rules with respect to the time, place, and manner of holding elections, which the governor vetoed, and the Supreme Court again resoundingly rejected that notion. The Supreme Court considered the question again in Arizona in a case brought by the Arizona State Legislature against something called the Arizona Independent Redistricting Commission. The people of Arizona, acting by referendum, had gotten so fed up with their state legislature drawing partisan lines that were then struck down by federal courts that they amended the constitution to provide that redistricting would be conducted not by the legislature but by an independent board. That was challenged in the Supreme Court, and the Supreme Court about 10 years ago—in a 5 to 4 decision—held that there was again no violation because the state constitution had provided a lawmaking mechanism for the people acting by popular referendum. And so, the track record of the “independent state legislature doctrine” in the Supreme Court had been a resounding 0 for 3. What got everybody quite worried this time around was that there didn’t appear to be any reason for the Supreme Court to grant review and the consequences for potentially upending electoral processes in the United States was significant.
Ellsworth: I know there were some twists and turns in this case, but before we get to those, can you tell us a little bit about your and WilmerHale’s involvement?
Waxman: We’ve been involved in issues like this for a long time, including representing the Redistricting Commission in Arizona. We’ve also been involved in the litigation surrounding the outcome and conclusion of the 2020 election, some of which concerned a cognate provision of the US Constitution. But we had consulted with the state of North Carolina and with the private petitioners about Moore v. Harper and had been litigating a very, very similar challenge for the Pennsylvania Democratic Party in connection with some redistricting and state legislative changes in Pennsylvania. In Moore v. Harper, we wrote an amicus brief representing the Democratic leadership of both the North Carolina House and the North Carolina Senate.
Ellsworth: So, tell me a little bit about what happened after the case was argued in the Supreme Court. As I previewed, there were certainly some twists and turns, and I think it’s interesting to understand that history before we think about what the Court actually did in the case.
Waxman: Sure. So interestingly, the North Carolina Supreme Court’s resolution required a remand to the lower courts to evaluate a new map and draw a new map, which was done, and that was appealed and went back to the North Carolina Supreme Court. By the time it got back, there had been a change in the membership. The newly constituted North Carolina Supreme Court reversed its prior decision, which had held that partisan gerrymandering was a claim that could be adjudicated under the North Carolina Constitution, and then expressly reversed its prior decision and said no, no, no, no, courts can’t adjudicate claims of partisan gerrymandering. That led to a furious round of supplemental briefing in the US Supreme Court about whether the case in fact had thereby been rendered moot. A majority of the Supreme Court concluded that the case was not technically moot. Three justices dissented from that view, and on the merits, two justices dissented from the Supreme Court’s merits ruling.
Ellsworth: So, tell us a little bit about the merits ruling that the Supreme Court issued after it concluded that it could go ahead and reach the issue presented.
Waxman: Sure. The Court—by a vote of 7 to 2—rejected the so-called “independent state legislature theory,” that is, the US Constitution was giving state legislatures the power to legislate rules about federal elections. When a legislature legislates, it has to act consistent with the grant of authority that it has received from its governing document, the state constitution. And therefore, legislative rulemaking by states about elections has to be consistent with the state constitution. And the Supreme Court said, therefore, it was entirely proper for the state Supreme Court to entertain a claim that a particular redistricting plan or other election-related rule was inconsistent with the state constitution. There’s an important caveat here, which is that the Supreme Court had to figure out how to reconcile its general rule, which is that state Supreme Courts get to interpret the state constitution and decide whether state election-related legislation is constitutional. With its ruling in connection with the 2000 presidential election in Bush v. Gore, a majority of the US Supreme Court rejected that challenge and in effect handed the election to George W. Bush over Al Gore. And what the Supreme Court said in Moore v. Harper is that state courts, although obviously they are the principal adjudicators of state constitutional provisions, “do not have free reign to strike down laws governing elections” and that federal courts “have an obligation to ensure that state court interpretations of that law do not evade federal law.” And the Court went on to say it wasn’t going to articulate a particular test, but it adverted to the test articulated by Chief Justice Rehnquist in Bush v. Gore and Bush v. Palm Beach Canvassing County, which basically said that the US Supreme Court was not required to accept a state Supreme Court’s ruling that the Supreme Court deemed “unreasonable.” And so, there’s an important caveat that may provide the basis for future litigation.
Ellsworth: Well, so that was going to be my next question. What do you see the implications of this case being beyond just the North Carolina map?
Waxman: Well, one thing that is sort of top of mind for me is that there is a cognate provision in Article 2, and what Article 2 says is each state shall appoint in such manner as the legislature thereof may direct, a number of electors. In the immediate aftermath of the 2020 election, there was an instance in which Donald Trump invited the Republican leaders of the Michigan House of Representatives for a discussion with him and his lawyers, which reportedly concerned this “independent state legislature doctrine theory,” in which they were basically told look, the reported popular vote in Michigan favored Joe Biden over Donald Trump, but you are the legislature. You get to decide which slate of electors actually will be sent to the Electoral College. There is the potential in an upcoming election for the result to be challenged in the US Supreme Court on the grounds that a state Supreme Court ruling upholding that choice was in fact unreasonable under the US Constitution. So, as with respect to any general rule that the Supreme Court articulates, where there is a caveat in the opinion, there is always the potential for future litigation invoking the caveat rather than the general rule.
Ellsworth: Between Moore v. Harper and then, of course, the Milligan decision this year, do you see any renewed interest from the Court on delving into these issues or any predictions for the future on what the Court might do as we come into another presidential election cycle?
Waxman: I mean, I’m projecting here, but I don’t think the justices of the Supreme Court have a particular appetite for wading into these electoral issues. But they’re hard for the Court to avoid in certain circumstances. Allen v. Milligan, to which you just referred, was a case brought under Section 2 of the Voting Rights Act, adjudicating a claim of racial gerrymandering in violation of the Voting Rights Act. In the wake of the Supreme Court’s decision in Allen v. Milligan, there are, of course, remand proceedings going on in Alabama. Right now, there are Section 2 challenges in probably two dozen states, and the Supreme Court has already granted cert in a South Carolina case for next term. So, these issues are not going to go away and they’re going to continue to be adjudicated by the courts.
Ellsworth: Anything that you see from the oral argument or from any of the dissents that provides any kind of road maps for the future in this election and redistricting context?
Waxman: I think it’s notable from Moore v. Harper that there were only two justices who dissented from the merits ruling. Justice Kavanaugh wrote a short, separate concurrence in which he basically said, look, when the caveated circumstance comes up, we should look to the Chief Justice’s articulation of what the standard is for a federal court to determine when a state court’s ruling about the meaning of its own constitution has gone too far. The oral argument in the case was quite extensive. There didn’t appear to be any appetite in the Court to want to change its precedence with respect to this so-called “independent state legislature.” Most of the questioning in the Court was, well, what happens if the state court makes such a ruling and it’s preposterous, or it’s unreasonable? And the counsel for the state of North Carolina conceded that there really is a role for the federal courts, and the US Supreme Court in particular, to exercise some degree of independent judgment with respect to the state Supreme Court’s ruling about the meaning of its own constitution. That concession, and that caveat in the opinion is very potentially the seed for future litigation. So, stay tuned.
Ellsworth: Well, certainly more to come on this and probably a lot of other fronts next term and beyond in the Court. Thank you, Seth, for joining us to talk about this important case and also how it might impact American elections and redistricting going forward. We really appreciate your time.
Waxman: Thanks very much for giving me the opportunity, Felicia.