This essay was coauthored with John Yoo and was originally published by The Federalist on December 7, 2022. John Yoo is the Emanuel S. Heller Professor of Law, Distinguished Professor of Law at the University of California at Berkeley, Nonresident Senior Fellow at The American Enterprise Institute, and a Visiting Fellow at The Hoover Institution. 

If a dispute arose over the results of the 2024 election, Moore v. Harper might provide the touchstone for a state legislative role in determining the winner.

The Supreme Court will hear oral arguments this week in the biggest sleeper case of its 2022-23 term.

The justices already have before them the blockbuster dispute of whether government-funded or -run colleges and universities can continue to use race in making admissions decisions, testing whether the court will live up to the Constitution’s promise of equal protection of the laws and that the government will treat its citizens as individuals without regard to race. But the Supreme Court also has before it a potentially earth-shaking case involving governmental structure in addition to individual rights.

Moore v. Harper asks the justices to decide whether a state court can impose its own map for congressional districts drawn after the decennial census. It will test whether the Supreme Court will honor the Constitution’s text, rather than past practice, with implications for the control not just over congressional districting (which helped Republicans win the House in the most recent midterm elections) but also the selection of presidential electors. If a true dispute arose over the results of the 2024 election, Moore v. Harper might provide the touchstone for a state legislative role in determining the winner.

What History Tells Us

The Constitution seems clear that only state legislatures can draw redistricting maps. Article I, Section 4 states 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 elections clause permits (but does not require) states to create districts as a means of electing their members of the House of Representatives. Congress requires states to draw such districts, and it could even impose its own districts under its power to “make or alter” state laws governing federal elections.

Of course, redistricting creates the opportunity for partisan gerrymandering. But the practice is an established one. Politicians have drawn electoral districts for partisan advantage from the very beginnings of the republic and, indeed, within the colonial period. James Madison warned in the Constitutional Convention that state legislatures could manipulate districting for partisan purposes, and Madison himself was the target of a failed attempt in the Virginia Legislature to draw a district so as to prevent his election to the first Congress.

The word “gerrymandering” itself comes from an attack on Elbridge Gerry, a delegate to the Constitutional Convention who later served as vice president under Madison, for state senate districts drawn in Massachusetts while he was governor. One of the districts, critics said, resembled a salamander because of its long, sinuous shape: hence gerrymandering. In Rucho v. Common Cause (2019), the justices declared that their power of judicial review did not extend to gerrymandered maps.

Critics of gerrymandering have turned to other alternatives. Some states, such as California and Arizona, have transferred the power to draw districts to independent commissions, which the court mistakenly upheld in 2015. But the more typical exercise involves state courts overturning redistricting maps under the state constitution, as occurred in North Carolina in the Moore case itself. The challenge for this approach is that it attempts an end around the Constitution’s vesting of the power to draw districts “in each State by the Legislature thereof.”

In the court’s 2015 decision upholding Arizona’s independent redistricting commission, Justice Ruth Bader Ginsburg wrote for a 5-4 majority that “State Legislature” did not really mean state legislature. Instead, she found that the framers used “Legislature” to refer to any entity authorized to make laws.

As critics of the North Carolina Legislature repeat in their arguments in Moore, apparently, the Constitution’s use of the word “legislature” means the people of a state, who are then free to delegate their power to draw districts anywhere they please. They would have to concede that a state could transfer the power to draw districts not just from the legislature to an independent commission and not even just to a court but even to a single individual who might or might not be a government official.  

The problem with allowing a state to allow anybody to exercise authority over redistricting is that it reads the word “legislature” out of the Constitution. If Article I, Section 4 had declared that the times, places, and manners of holding elections for Congress were to be governed by “the state” rather than “the legislature” of the state, the claim that state courts, governors, or even commissions could perform the redistricting function would make some sense.

But the framers carefully distinguished between states and state legislatures, governors, and even courts. In some places, such as defending a state from invasion or sudden attack, a state itself bears responsibility. But only state “legislatures” can call for a constitutional convention, ratify proposed amendments, consent to their state’s division, and declare the manner of selecting presidential electors. Before the 17th Amendment, they also could appoint a state’s U.S. senators.

In other provisions, the Constitution imposes federal tasks upon state executive authorities, such as the issuance of writs of election when there is a vacancy in the House. Finally, the supremacy clause specifically requires state judges to enforce federal law above state law. Reading state legislatures in a common-sense way to the multi-member body authorized to make laws, rather than to executives, judges, or even the people as a whole, is consistent with the way the framers understood the word “legislature” and their use of their term throughout the Constitution.

Critics of the view we are defending appear to believe that it would violate norms of popular sovereignty not to allow state courts, purporting to act under state constitutions, to restructure the election rules (and, in particular, the provisions for a state’s congressional districting) ordained by the state legislatures. There is no merit to this claim. State constitutions are subject to the supremacy clause of the federal Constitution, which assigns priority to the states’ legislatures — not to their courts nor even to their people, when speaking through their local constitutions — and which is itself rooted in popular sovereignty.

Who Should Get the Last Word?

It is true (as Alexander Hamilton observes in Federalist No. 59) that the interests of a state legislature and those of the state’s voters may, in some cases, not be aligned. Similarly, in a 2020 dissent in DNC v. Wisconsin State Legislature, an election clause case involving a federal district court’s attempt to extend the legislative deadline for the receipt of certain absentee ballots, Justice Elena Kagan argued in support of judicial intervention that in the field of state election law, “politicians’ incentives often conflict with voters’ interests.” Such non-alignment between legislators’ and voters’ interests may also be found when a legislature gerrymanders congressional districts for partisan motives.  

But the election clause itself contains a specific remedy for such problems: The federal Congress (not the state courts) has the power to override the state legislature’s action. As Justice Neil Gorsuch remarked in the Wisconsin State Legislature case:

Nothing in our founding document contemplates the kind of judicial intervention that took place here [in overturning the legislature’s deadline]. Nor is there precedent for it in 230 years of this Court’s decisions.

Further, Gorsuch noted that respect for the democratic process leads to the conclusion that the states’ legislatures, rather than their courts, should have the final say on rules for electing members of Congress (subject to the congressional override).

Moreover, when a state court appeals to the state constitution to set aside a legislative decision about congressional districts, it is often the flimsiest of fictions to claim that the court is upholding the popular will of the voters, as expressed in their state constitution, as against the legislature. In Moore itself, the North Carolina Supreme Court relied in large part on a provision of the state constitution, dating back to 1776, that simply declared, “All elections shall be free.” 

Critics of the theory we defend here are the ones who support the less “democratic” position. In effect, they advocate a massive transfer of power from a body that regularly has to face the electorate to a state judiciary that may be unelected and life-tenured.