Courthouse Steps Decision: Moore v. Harper

[Music]

 

Sam Fendler:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I'm an assistant director of practice groups with The Federal Society. Today we're excited to host a Courthouse Steps Decision webinar on Moore v. Harper. We're joined today by Andrew Grossman. Andrew is a partner at Baker Hostetler, where he co-leads the firm's appellate and major motions team. Andrew is also an adjunct scholar at the Cato Institute's Robert A.  Levy Center for Constitutional Studies and a senior legal fellow at the Buckeye Institute. He's a trusted advisor to members of Congress and has testified more than a dozen times before the House and Senate Judiciary Committees. Andrew's legal commentary has been widely published in outlets including the Wall Street Journal, Washington Post and many others. If you'd like to learn more about Andrew, you can see his full bio on our website, fedsoc.org. 

 

After Andrew gives his opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window and we'll do our best to answer as many as we can. Finally, I'll note that, as always, all expressions of opinion today are those of our guest speaker and not The Federal Society. With that, Andrew, thank you very much for joining us today, sir, and the floor is yours.

 

Andrew Grossman:  Thank you, Sam. Good afternoon to everybody and thank you for attending. I'm going to borrow from Professor Jonathan Turley what I thought was a very apt description of Moore v. Harper and the Supreme Court's decision in it yesterday. The headline of the article he published was "The Coup That Never Was." There has been so much misunderstanding and, in some cases, misinformation about the legal claims in this case, the potential impact, as well as just generally the constitutional superstructure that governs the conduct of federal elections. 

 

What I hope to do in this webinar is to cut through a lot of the misunderstandings about the case, provide a little bit of background about the law and about the case itself, run through the decision in the case as well as the separate opinions, and then give some takeaways about what can be drawn from the decision, some of the themes, how to look at it, as well as what comes next in this important area of the law.

 

In a general sense, the Court's decision in Moore, written by the Chief Justice, to my mind, really charts a middle path. That is to say that it rejects, I think, what were really the most extreme edges of the position staked out by different parties and commentators regarding the regulation of state legislatures, legislative activities, legislation setting the rules for conducting federal elections. On the one side, there was the claim that was put forward by the petitioner in this case that state legislatures are not subject to limiting provisions of state constitutions when they legislate to regulate federal elections. The Court, of course, rejected that proposition. 

 

On the other end, many have expressed the view that the decisions of state courts interpreting and applying state laws that govern the conduct of federal elections are effectively -- when it's a question of state law -- is not subject to any judicial review or check by federal courts. The Court, somewhat surprisingly, also rejected that proposition. And so what you get is a down the middle approach that adopts what some have called the weak form of the independent state legislature theory. One that was, I think, most famously put forward by Chief Justice Rehnquist in a concurrence in Bush v. Gore.

 

But I think we're getting ahead of ourselves here.  Why don't we begin with some background on the law and then the case? The case concerns the Elections Clause of the constitution. The elections clause provides that the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. There's a similar clause, the Electors Clause, that governs the choosing of presidential electors, who in turn select the president of the United States. Both of these clauses create somewhat of an unusual structure in our federalist government. Typically, a legislator is exercising power under the document that creates the legislature. So for example, you have a state constitution that creates a state senate and a state house or something of that nature, and those legislators are exercising the power that is conferred upon them by that constitution. What's strange about the Elections Clause as well as the Elector's Clause is that it gives power to legislatures that are established by state constitutions. But the power that it gives them is not a power that arises from those state constitutions because it is a federal power and it's not something that preexisted the federal government and the U.S. Constitution. 

 

So this leads to the question that was at issue in Moore.  When a legislature is exercising this federal power, is the legislature bound by limitations in the state constitution or only by federal law, including the U.S. constitution?  Because when you think about it, generally speaking, a power that is conferred by the federal Constitution under the principle of supremacy of federal law wouldn't be subject to limitations generally of state law. So it does create this unusual question. And that question was brought to bear in this case regarding a challenge to house redistricting undertaken by the North Carolina legislature. Following the last census, the legislature, as it typically does, created and enacted a new set of maps, including for the U.S. House of Representatives. And of course, that redistricting plan is undertaken pursuant to the legislature's Elections Clause power because it regulates the manner of holding elections for representatives. 

 

That map in turn was challenged in state court by an array of groups who contended, among other things, that the map was an impermissible political gerrymander favoring Republicans in violation of a number of provisions of the North Carolina constitution. Now, these were sort of open-ended provisions of the constitution. There is no anti-political gerrymandering provision or anything of that sort. Instead, they relied upon, for example, clauses that guarantee the right of free association, the right to free and fair elections and things of that nature. 

 

Ultimately, the Supreme Court agreed, which was, in some sense, a bit of a surprise, given that the same Court had rejected a very similar claim only a few years prior. In a decision, it not only held that the state constitution prohibits political gerrymanders, it specified certain standards for assessing gerrymanders, held that the map at issue was one, and then blocked the map. The legislators, in turn, sought Supreme Court review. Now, they didn't seek Supreme Court review of the state law issue, the interpretation of the state constitution that was undertaken by the North Carolina Supreme Court. Instead, they argued that the North Carolina Supreme Court had violated the Elections Clause by intruding upon the legislature's plenary power under that clause to determine the manner of holding elections for representatives. And that was the question that was put to the Court. 

 

The Court ultimately ruled against the legislature. The majority opinion was written by the chief justice and joined by five other justices. It begins with a discussion of the question of mootness. I did mention the initial State Supreme Court decision that blocked the map. But of course, the litigation continued to a remedial phase. And during that remedial phase, ultimately, the State Supreme Court, in a decision from just this past April, overruled its prior decision in this very case and ruled that the plaintiff's claims in this case, including the challenges to the maps and the claims of gerrymandering, shall be dismissed as a matter of state law. I'm not going to get into the mootness discussion here. It's something that is engaged at some length both by Chief Justice Roberts in the majority opinion as well as by Justice Thomas in his dissent. But I will say it really does present some very interesting issues about just judicial power in the abstract and particularly the Supreme Court's authority to engage in resolution of a case or controversy or, I suppose, whether there is still a case or controversy when, whichever way the Court rules, the claims that are at issue are going to be dismissed as a matter of state law. 

 

Nonetheless, the chief justice did find a way around that regarding some specifics concerning the operation of North Carolina law in this instance. It's a very interesting discussion and for civil procedure buffs and jurisdictional buffs, certainly something worth looking at in great detail. But we're going to go straight on to the merits. The chief justice's decision in its merits discussion opens with a pay in to judicial review. In other words, the principle that courts, especially the Supreme Court, but also the courts of the states, do review acts of the legislature for compliance with governing law, whether that's the U.S. Constitution or a state constitution.  It recognized that as a fundamental principle. And then it frames the question in this case as to whether the Elections Clause insulates legislatures from judicial review. In other words, you've got this principle of judicial review for compliance with constitutions. Does the Elections Clause carve out an exception to that? And the Court's answer is, no. 

 

Principally, it relies on a series of cases extending back over a century that have interpreted the Elections Clause and other provisions of the Constitution typically by addressing what counts as the legislature in the constitutional language in those provisions. Generally, those cases have held particularly as regards the Elections Clause that the legislature, as referred to in the Elections Clause, consists of the state's lawmaking procedure. So, yeah, common parlance that is literally the legislature, the body that meets and passes laws and so forth, but it also includes other parts of the process, such as a governor's veto or even a popular referendum that a state might use to enact law. To put it in shorthand, the Court has recognized that the legislature is defined by state constitutions, and for these purposes, it consists of however it is that a state makes law. 

 

Nonetheless, the Court then pivots to -- draws upon these cases a broader principle than it had confronted previously that, in deciding that the legislature is derived from what's provided in state constitutions, the Court had actually gone beyond that and had adopted the view that those state constitutions are governing not only in form, in procedure, but also in terms of substance. What do I mean by this? I think a simple hypothetical helps illustrate it -- a simple example. Imagine that a state constitution said that in all elections, the ballots shall be blue. Everybody agrees, of course, that a provision like that would control the state legislatures when they're regulating state elections, because of course they are governed by state constitutional provisions in their ordinary activities.

 

The question in this case was, would a provision like that also apply equally to state laws rendered under the Elections Clause, or would the state legislature be free to have some other color ballot for federal elections on the view that federal elections -- that power to regulate federal elections devolves exclusively from the U.S. Constitution and so isn't subject to that type of substantive limitation on the legislative authority. As I said, the Court adopted the proposition that there really is no difference and that whatever is in the state constitution is generally going to apply both to state election regulations as well as to federal election regulations. So long as it's made by the legislature, the legislature is subject to it.

 

And this kind of reflects a broader principle that the Court recognized, that, generally speaking, when legislatures make laws, they're bound by the provisions, as the Court put it, of the very documents that give them life. And in doing that, the Court was able to lead this question about, well, the document that gave them this power actually doesn't have these substantive restrictions because that document is the U.S. constitution, not the state constitutions that are at issue. The majority opinion also makes the observation that, well, it can be very difficult and, in some cases, impossible to draw a line between procedure and substance. So if you're going to accept one, in other words, that state constitutions define the procedure for making laws, and that's what we regard as the legislature, then you kind of have to accept the other, that all the other provisions of the state constitutions concerning substance also come along for the ride, because you just can't distinguish between them. 

 

The Court also cited a raft of historical evidence, specifically that many state constitutions from the time of the framing and shortly thereafter did have provisions that regulated elections, and some of them even used very broad language, like all elections. Of course, there wasn't really a lot of case law under these provisions interpreting them and applying them to federal elections and what little there was went both ways. But nonetheless, the Court did find historical support for the proposition that states had typically regarded their legislatures as being subject to the provisions of state constitutions when regulating federal elections. Now, you might think that that was the end of the analysis because the Court had rejected the petitioner's claim in this case that they weren't subject to those limitations, and so what else could there be to decide? But the Court did continue recognizing that there is a more complicated and significant interaction between the federal and state constitutions in this area. 

 

As the Court put it, state courts do not have free reign. It explained that the assignment of the Election Clause power to the legislature of each state specifically was, and I'll quote, "A deliberate choice that this Court must respect and therefore that federal courts must make sure that state courts do not evade." In other words, when the Constitution assigns this power, the power to regulate federal elections specifically to the legislature, what that seems to mean is that the legislature really ought to be the first mover there. It ought to be the one making discretionary decisions, at least those that are permitted to it under prevailing state law -- in other words, state constitutions.

 

In striking out on this path, the majority decision essentially adopted the overall framework that was proposed by Chief Justice Rehnquist in Bush v. Gore in a concurring opinion in that case. As everyone remembers, Bush v. Gore concerned a recount in Florida that was generally governed by principles of Florida law. There was some ambiguity as to whether -- initially -- as to whether or not, the Florida Supreme Court, which had ordered a partial recount within the state, was merely interpreting the provisions of Florida law as enacted by the Florida legislature or instead was applying principles from substantive provisions of the state constitution.

 

The majority held, ultimately, that there was an equal protection violation in the way that the recount was being conducted because it was going to subject different votes to different types of procedures, therefore valuing some votes in some areas more than in others. Chief Justice Rehnquist concurred, arguing that in addition, that the state Supreme Court's interpretation of Florida law was simply too far off the mark from what the text of the law actually provided.  He did counsel a deferential approach to how it is that federal courts should review state law -- state court's interpretation of state law in this instance. But nonetheless, his view was that even looking at it, even squinting a bit, to give that appropriate deference to state courts, there still was an obligation to make sure that the legislature was in the driver's seat and that its directives were being followed properly by state courts. 

 

Ultimately, on this issue, the Court in Moore holds that, and I'll quote, "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. In such cases," the Court said, "Federal courts must not abandon their duty to exercise judicial review." All right. Well, what's the standard? What's the test? Well, the Court didn't go there. It did identify several, and we'll talk about that in a moment. But it also recognized that the legislators who petitioned the Supreme Court in Moore had disavowed reliance on this type of theory. And so the Court recognized that there are different prisms through which one might review state court interpretations of federal election rules, but at the same time that will have to -- determining which of those tests applies will have to be left to a later case. 

 

There were two separate opinions in Moore. The first was a relatively short concurrence by Justice Kavanaugh who follows up on this federal court review point as well as discuss the applicable standard. As he points out, so far there have been about three separate standards for this question that have been put in the mix. The first is Chief Justice Rehnquist's which asks whether the state court has impermissibly distorted state law beyond what a fair reading required. In other words, the question isn't "Is the state court necessarily correct or is that the same interpretation that I would adopt?" It's something more like "Is this beyond the bounds of any reasonable interpretation?" 

 

Similarly, also in Bush v. Gore, Justice Souter had proposed that the federal court should consider whether the state court has exceeded the limits of reasonable interpretation, which seems, if not identical, then pretty similar to Chief Justice Rehnquist's position. And finally, in Moore, the Solicitor General of the United States actually argued that there is an appropriate role for review of federal courts. In other words, rejecting the view that some had put forward that the interpretation of these state laws as well as state constitutions truly is left only to state courts with no check by the federal judiciary. The standard that the Solicitor General put forward was whether the state court reached a, "Truly aberrant interpretation of state law."

 

As Justice Kavanaugh points out, it's not apparent that these different standards are really all that different. Ultimately, they all embrace the view that federal courts must be deferential to state court's interpretations of state law, but at the same time that the federal court review still must have teeth because otherwise it won't be enforcing -- properly enforcing the assignment of this power to the legislature of each state. Finally, there was a dissent authored by Justice Thomas and joined in full by Justice Gorsuch and joined in part by Justice Alito only as to the issue of Mootness. As I said, I'm not going to linger on the mootness issue. But I will say that Justice Thomas does put forward a very powerful case that the Court may not have the authority to weigh in in instances where its decision ultimately won't make a difference in terms of the judgment in the case. One might have thought from prior precedents that that was taken as settled law, but of course the chief has a response to that.

 

But let's turn instead to the dissent's view of the merits, which I think can be summed up very similarly. The dissent sets forward three premises. The first 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. This is kind of where we started this discussion. In other words, federal law is supreme under the Supremacy Clause. And so if valid federal law provides some type of rule, whether it's a constitutional provision or it's a statute, whatever that valid federal law is, it can't be overridden by a state government.

 

The second proposition is that regulating the times, places, and manner of congressional elections is not an original prerogative of state power so that such power has to be delegated to rather than reserved by the states. And again, we touched on this earlier. This is the idea that this was not a preexisting power that the state legislatures had and it's not something that the state constitutions could even validly confer on them. It was a power that uniquely could be and was granted by the U.S. Constitution to the state legislatures. And the third premise of Justice Thomas's dissent is that the language "The legislature thereof," as used in the Elections Clause 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. And again, we touched on this previously. This is simply the idea that in the Elections Clause and other clauses that refer to the state's legislature concerning legislative authority, the Court has held consistently for many years that federal law essentially takes the state legislature as it finds it, in the state constitution. And that just refers to whatever the process is for legislating.

 

As Justice Thomas points out, if you add these three premises together, the conclusion that you arrive at is that the Election Clause power that's conferred on legislatures is plenary on those legislatures, leaving no room for them to be limited by provisions of a state constitution that might purport to restrict how they could exercise that power. And of course, that's not to say that they are unbound, because of course they're bound by provisions of the federal Constitution as well as by many statutes enacted by Congress, including the Voting Rights Act and other statutes that govern voting practices.

 

But as Justice Thomas notes, the majority doesn't really address any of these three premises. In fact, it certainly agrees with the third one regarding the import of the language, "The legislature thereof," and it seems at various points to acknowledge the other two premises. Instead, the majority's argument -- the trick and the twist that it takes is to focus and begin with the premise on the power of state courts to exercise judicial review. Justice Thomas argues, however, that that's a red herring. Of course state courts can review election laws, but the real question and the question in this case, as Justice Thomas puts it, is what law applies in those cases, not whether there can be judicial review.

 

So the disagreement between the dissent and the majority is fundamental. But reading the opinions, one gets the sense that this debate really isn't joined entirely by the majority. The majority doesn't seem to question Justice Thomas's premises, and the majority does take issue with some of his interpretation of the Court's case law. But ultimately, there really isn't a full meeting of the minds on the issue that was before the Court and how it is that it ought to be resolved. It was really, between the two opinions, two ships passing in the night, because of the radically different ways in which they framed the question before the Court. 

 

So with all that said, what should we take from this? I'm going to give some of my thoughts, and I'm going to start with something that also has to do with framing. What you think about Moore and how you regard the case really involves how you frame the context of it. In other words -- and I think that thinking about the context of it and how it's framed has really driven so many of the distortions regarding this case and misunderstanding of the law that's applicable in this area.

 

On the one hand, there are a lot of people who talked about this case and about the doctrines that were at issue in this case as being about the protection of fundamental voting rights and in some cases about stealing elections. There were so many articles and op eds and news reports and statements by politicians that a decision favoring the legislature in this case would have led to wholesale violations of citizen's voting rights and would have authorized state legislatures to steal elections. In some cases, this was tied up with claims about the Trump campaign's litigation strategy and constitutional interpretation in the wake of the 2020 election. 

 

But I think it's fair to say that the issues in this case were actually quite distinct. As I see it, there was never a question -- nobody here disputes that the U.S. Constitution itself precludes that type of campaign to overturn the will of the people as expressed by their votes on Election Day. Particularly with respect to presidential elections, the Constitution gives Congress the power to set the day of choosing electors. A state legislature has no power and has never had any power to take that choice from the voters while they're voting or after they voted. And that's evident enough that even ultimately, President Trump's legal team conceded that their position in some convoluted way arguing to the contrary -- and I'll freely admit that I've never entirely understood what their constitutional position was -- that their position, such as it was, would have lost probably 9-0 in the Supreme Court.

 

But the reason it would have lost 9-0 doesn't really have much to do with the issues that are at play in this case. It does have to do with the division of power under the U.S. constitution, but it has to do with the division of power -- it has to do with the power that has been exercised by Congress as well as other principles of law, including equal protection and otherwise. But in any instance, there has been this claim that even if it's not about stealing elections, this case was about voting rights and about protecting the fundamental right to vote. But of course, from the civil rights era to the present, voting rights have principally been protected not by state laws. And of course, there was many terrible instances of resistance by the states to full exercise of the franchise. Those rights have been protected and enforced and guaranteed typically by federal law. And this case was never about the application of federal law to the state legislature's regulations of federal elections. There was never any disagreement or really any argument to the contrary, that state legislatures aren't bound by the Voting Rights Act, by provisions of the Fourteenth and Fifteenth Amendments, and that the full force and panoply of federal law concerning voting rights applies fully to state legislatures when they legislate in this area. 

 

But I think there's another way of framing this case that to my mind is more persuasive and really explains, I think, the Court's result and will probably serve as a better guide to what we're likely to see in the future. If you look at the history of litigation over elections, what you've seen over the past, let's say 40 to 50 years, has been a lot of federal court litigation challenging both districting maps as well as election procedures, everything from voting ID to different types of balloting procedures, voter registration, voter checking. For many, many decades, those procedures were subject to an endless campaign of litigation in the state courts. In many cases, very aggressive cases that for many years often did prevail in changing the way that states conduct elections, sometimes in very minute and specific ways concerning registration and voting time periods and things of that nature.

 

What changed is that the Supreme Court over the past 10 to 15 years became less receptive to those adventuresome legal interpretations asking the courts to step in, the federal courts to step in and change state election laws. And so many of the groups and political interests behind those lawsuits shifted their focus to the state courts. And what we saw over the past five to ten years, and especially in 2020, was a new wave of litigation in the state courts relying on broad and open-ended provisions of state constitutions to upend state election regulations that had been enacted by the democratically elected state legislatures. This includes things like voter ID. It includes things like absentee balloting, the time periods for mail in balloting. In 2020, there was a period of time, a period of months, when it felt like potentially everything was up for grabs in state court legislation and it was hard to -- state court litigation, rather -- and it was hard to tell what the law was because in so many of these cases, state courts were applying these broad and open-ended provisions of their own constitutions to fundamentally rewrite the way that elections are conducted within their states. 

 

If you look at the issue that way, and you understand the history of the issue that way, I think Moore makes a little bit more sense. The Court was, I think, wary of the broader claim that state legislatures are categorically unbound by provisions of state constitutions, and I think the Court was concerned that a ruling to that effect could have some disruptive and hard to predict impact. We've seen so much chaos in the administration of our election laws. I think the Court was reluctant to face the prospect of adding even more, as well as the possibility that state and federal elections, which are typically conducted in conjunction, might be subject to different procedures. If, for example, state elections are being conducted under procedures that have been influenced by a state constitution or governed by a state constitution, whereas in federal elections that are being conducted at the same time, most likely on the same ballot, would be subject to potentially a different set of procedures unbound from those state constitutional provisions.

 

So I think that practical reality gave the Court a lot of pause, and then it made the Court wary of a decision that might well disrupt the status quo. At the same time, the Court recognized that there has been a shift in this area in recent years and that state courts, at least some of them, have become more adventuresome in terms of weighting in and in some cases supplanting state legislatures exercising the legislature's power under the Elections Clause and the Electors Clause. And that, I think, explains the Court's endorsement of Chief Justice Rehnquist's approach. It doesn't adopt a categorical approach, but something that looks to see whether a state court has really abandoned its role as a judicial body and has usurped the legislative function by second guessing the legislature and by rewriting election procedures without some firm and sound basis in law.

 

There's also, I think, particularly reading the majority opinion in this case, a subcurrent of what some might call the notion of judicial supremacy. The Chief Justice, of course, begins his opinion with, as I said, a pay in to the principle of judicial review and then talks at length about how -- and really frames the case -- about how the petitioner's position in this case would be an exception to judicial review, and how those exceptions are to be granted grudgingly, if at all. I think Justice Thomas's retort to that framing does have some persuasive force to it because, again, nobody disputed that all of the statutes at issue in this case would certainly be subject to judicial review in state courts. The real question instead was what body of law applies?

 

But the Chief Justice actually went further. And in justifying his adoption of what we'll call the Rehnquist approach to review of state court decisions, he also spoke about the need for a federal check and the need for federal courts, particularly the Supreme Court, not to abdicate their responsibility to review state laws and state court decisions in this area. I think this is something that will be a fertile topic of debate and writing in the months ahead, because it really does elucidate, I think, the way that the Chief Justice views the judicial role and particularly the unique role of his Court, the Supreme Court.

 

Probably the most important question after Moore is, well, what comes next? And I think that Justice Kavanaugh did a good job of putting his thumb on the major issues in his concurrence. The courts are going to have to flesh out a standard by which they can review state court interpretations of federal election rules as well as the actions by state election law administrators. In other words, are they going too far or are they adopting interpretations that are consonant with governing state law? As we said, as I mentioned earlier, there are different standards that have been put forward. It's difficult to tell whether or not there's much daylight between them, and it's something that's just going to have to be fleshed out in the case law going forward.

 

One risk that Justice Kavanaugh identified as well as Justice Thomas in dissent is that the courts may well adopt a policy of nearly across the board deference. These are questions of state law. Sometimes they may involve the interpretation and application of state constitutional provisions. And the federal courts are, of course, going to be wary of second-guessing state courts on interpretation of those things, which of course interpretation of state laws and state constitutions are the bailiwick of state courts. More generally, the Supreme Court, and particularly the Chief Justice, may be wary and reluctant to intervene in election disputes, especially those that are coming up through the state courts. That's certainly something that we've seen of the Chief Justice in recent election cycles. 

 

On the other hand, the Chief Justice's view may be a little bit different now that there is at the least, a clear principle of review to apply, and the Court should have some interest in fleshing out that standard and demonstrating how it is that it works and what the outer bounds are. There's also the question about whether and how this will apply in the lower courts. In general, when an election law issue is litigated up through the state courts, a party can seek Supreme Court review either through a petition for writ of cert or through an application for emergency relief. In other words, those cases that are litigated up through state courts generally don't go into the lower federal courts, that is, the district courts and the courts of appeals. But, of course, the door may now be open to cases that bring collateral attacks to determinations made by state courts to interpretations that state courts have made in state court litigation, whether by third parties, such as campaigns that weren't involved in those cases or by citizens who are now being subject to revised election rules that they believe are not consistent with the governing law and with the Elections Clause or the Electors Clause grant of authority to the state legislature. Potentially, the legislatures could bring those claims as well. 

 

There may also be a role for the lower courts in litigation against state election administrators relying on adventuresome interpretations of state law, on the view that whatever it is that a state court might decide, the interpretation that's being pressed is simply beyond the pale and therefore not something that would be within the power of a state court to approve. These things, of course, will have to be worked out, and I think there will be a fair amount of litigation over the next cycle or two that determines what the applicable standards are. But there also is at least a prospect that the Court's ruling may be a shot across the bow not only to state courts applying these adventuresome interpretations of state law and upending state election procedures, but also to the groups that are bringing these cases. They may come to recognize that the Court meant what it said, the majority specifically meant what it said, and that Justice Kavanaugh meant what he said, that federal court review of these state court interpretations ought not to be toothless, and that there really are limits on what a state court can do even when it is interpreting and applying provisions of its own constitution. It still has to be acting as a court, and it can't be supplanting the role of the legislature.

 

If you take that idea seriously, or even if you think that the Supreme Court might take that idea seriously, it may well deter bringing cases that would require state courts to do things like that. And indeed, the oral argument, I think, in this case suggested some unease among the Justices about the actions of the North Carolina Supreme Court, that it determined that it adopted redistricting principles from very vague and uncertain terms in a state court constitution when that court's own precedents indicated that the type of claim that it was considering, a political gerrymandering claim, wouldn't have even prevailed under existing law. Now, it's hard to say had the Court applied -- how the Supreme Court applied that sort of review in this case, how it would have turned out ultimately. But it's possible that there would have been five or more votes for the position that the state court here simply did go too far and did arrogate to itself the power that ultimately needs to be exercised by the legislature.

 

So there is at least a prospect that, if not immediately, this may, over the medium term, bring down the heat in this area of the law, deter some of the more controversial cases, and to the extent that the courts do flesh out a standard and enforce it in a few cases and we get a better understanding of how the law is going to work going forward, it may well be something that leads to greater certainty in election law litigation and thereby greater certainty in the laws that govern our elections. And I think that's something, ultimately, that we can all welcome. And with that, I'll conclude my remarks, and I would certainly welcome your questions.

 

Sam Fendler:  Andrew, thank you so much for offering us what was a very comprehensive review of the opinion of the background. I think you preempted quite a few of my questions, but one that I had, which I think you discussed, but perhaps it's worth a little bit more discussion, is that the opinion seems to offer a pretty strong rejection of this independent state legislature theory. So we're told that state courts can review state legislatures, federal courts can review state courts. And I think the ultimate question is what authority does the state judiciary now have? Is it too much power for them to draw the maps on their own? Is this a question that will have to be addressed in future cases? And you discussed this. It was also addressed in Justice Kavanaugh's concurrence that maybe the standard will have to be later on down the road. But how do you see right now state judicial power?

 

Andrew Grossman:  It is somewhat of an open question, and I think the issue here is maybe less about state judicial power and more about the applicable law that applies because the way the Court -- and this is really about the Court going down the middle. Well, the Court did reject the strongest form of what's been called the independent state legislature doctrine. It did endorse what some have called the weaker form, the Chief Justice Rehnquist view. And it's hard to say how that would apply to a decision like the one that was at issue here because ultimately, the Court didn't apply it because the legislature that raised this theory didn't press that argument.

 

But the Court seems pretty determined and pretty adamant that there are guardrails. So a state Supreme Court, under the decision yesterday, does have the power to enforce the provisions of its own constitution. But I think the word to put emphasis on there would be enforce. And if it looks like what the Court is doing is not enforcing but is instead making up new law, is engaging in adventuresome interpretations, is, by all appearances, making political type decisions of the sort that would typically be made by a legislature, the kind of discretionary decisions that don't really reflect what we usually think of as the judicial role, then in that instance, there will be a check. And so there is this balance and it really comes down, I think, ultimately to what the test is and what the Court's -- that is the Supreme Court's appetite is for enforcing that standard. And it's just something we're going to have to see how it plays out.

 

Sam Fendler:  This next question comes from our audience. "Does redistricting properly count as a manner of holding elections?  It seems there is a question about what a manner means when the legislature is undertaking a substantive function like redistricting."

 

Andrew Grossman:  Yeah. For redistricting, for the House of Representatives the case law going back ages has considered that to be part of a state legislature's Elections Clause authority because it does regulate the manner of conducting elections. I have heard some arguments that maybe it shouldn't be regarded that way, but it strikes me that in all likelihood, that's water under the bridge at this point.

 

Sam Fendler:  These next two questions I have were sort of previewed in a Wall Street Journal piece this morning by the editorial board. They seem to take two issues from this case. Number one, that it is likely the challenges in state courts will increase, perhaps swelling dockets, maybe making these challenges difficult to address. And number two, and I think this is the larger issue that they raise, is that the Supreme Court seems unlikely to intervene and settle these issues. Now, I think that second piece is mostly a rear-facing view because of course, even in this case, at the beginning, I think -- correct me if I'm wrong -- I think they called it Harper one. They didn't want to intervene and solve the issue. But maybe now that this decision has been handed down, they will be more likely to intervene. What do you make of these issues?

 

Andrew Grossman:  Well, I don't necessarily agree that we're going to see a larger flood of state court litigation because gosh, I mean, that's what we've seen over the past five years and particularly in 2020. It was quite a flood. And then in the last congressional cycle, there was a very well-funded effort that brought, I think, about just as many suits as they thought they could profitably bring. So it strikes me as unlikely, and -- it strikes me as unlikely that there's going to be substantially more particularly because the position that many of the people bringing these suits have traditionally had is that on these issues involving the interpretation of state law and state constitutions, their position has been that there is and that there ought to be no federal review whatsoever.

 

In other words, if a state court is interpreting state law or state constitution, that is for them alone and there really is no role for the federal courts or specifically the Supreme Court on that type of question of state law. And Moore, of course, emphatically rejects that proposition. That's what I mean when I say that Moore kind of goes down the middle. It does recognize that there is a check here and that there has to be a check because the Constitution does assign this particular power to the legislature which then makes the laws. So for that reason, if anything, this decision may well deter some of the more adventuresome lawsuits that we've seen because there no longer is this argument that whatever you can get out of a state court, that's what's going to prevail at the end of the day.

 

Sam Fendler:  Andrew, in the oral argument, Justice Thomas noted that the Court, the Supreme Court doesn't generally review state Supreme Court's interpretations of state constitutions. And one of the things he mentioned was that a federal review -- and this was also offered by the respondents in the oral argument -- that a federal review of the state Supreme Court requires a sky-high standard. Do you think that that sky-high standard is still in play or does this opinion now maybe open it up when it comes to election issues for a lower standard for review?

 

Andrew Grossman:  Well, two things. I mean, first of all, the general rule is that federal court -- that the Supreme Court will not review independent and adequate state grounds of decision. So, for example, if there's a case that goes up through the state courts in some other area of the law, just in general, that involves solely state law issues, generally, that's not going -- however, the state Supreme Court might resolve those issues, there is no federal issue for the Supreme Court to review because the Supreme Court does not review questions of state law. State Supreme Courts are the final arbiters of those questions.

 

And so what's happening here is a little bit different. It's not so much that the Supreme Court is putting itself in the position of reviewing exactly questions of state law. What it really has said in Moore that it will be doing in the future is reviewing this federal law question as to who is exercising this authority that's conferred by the Elections Clause. In other words, has the state violated federal law by effectively arrogating that authority into the hands of the state Supreme Court and thereby divesting it of the body, the legislature, to which it was assigned by the U.S. constitution?

 

And again, it's an open question as to exactly what the standard is going to be for reviewing those claims. There's a lot of language that's been put forward. Some of the standards are higher than other standards. It's something that's going to have to be borne out through case-by-case adjudication. But if history is any guide, the Supreme Court has been willing to step in, at least in some areas where similarly questions of state law do interact and affect federal law questions. And the chief justice's opinion does identify a few of those areas, including in several cases, most notably, property law. In general property rights are defined by state law, not by the federal constitution. At the same time, the federal Constitution does protect property rights in certain respects, and the Court has accordingly recognized that states don't have free rein, therefore, to redefine property in any way they may see fit. There is a historical inquiry. There are certain questions about the way that the state is changing the law, about equality and things like that, whether the state is treating all parties equally and itself the same. So we've seen gradually, a body of law grow in that area about how the Court reviews that kind of question, and I think that's what we're going to see in this space as well.

 

Sam Fendler:  Similar line of thinking here in this next question from our audience. "Assuming a state constitution confers upon the legislatures similar powers over state court, including state Supreme Court's jurisdiction, et cetera, could legislatures cabin this ruling through that means?"

 

Andrew Grossman:  In other words, could they divest state courts of jurisdiction to review certain types of decisions? Ultimately, that's a question of state constitutional law. Different states have different views over -- and their constitutions provide differently for how the judicial power is structured and how it operates and what's subject to review. Theoretically, state legislatures might be able to do that respecting redistricting and other things, but it's really going to have -- that's something that's going to have to be worked out on a state-by-state basis. And I want to be clear that even if a state did that, of course, a state legislature's redistricting map as well as its other election regulations would certainly still be subject to judicial review in federal court.

 

Sam Fendler:  Andrew, I want to ask you about the dissenting opinion. Justice Alito joined only in part one, which was the discussion of mootness. Then later, Justice Thomas got into the majority's discussion of the merits. Is there anything that we can take away from that? Do we think that maybe Justice Alito does not join on the merits, or is that a matter of psychoanalysis that we can't get any understanding of?

 

Andrew Grossman:  It's always difficult to read much into these things, but I think in this instance, I don't think that Justice Alito was signaling anything in particular other than his often-stated view that the Court ought not to reach out to decide questions that aren't properly before it. Justice Alito has been very clear about that in the past, and so it makes perfect sense to me why, whatever his views on the merits question, he would be unwilling to join a discussion of the merits when his view was that the Court shouldn't have decided the case to begin with.

 

Sam Fendler:  One more question from the audience. "Do you think the opinion here is going to result in more racial gerrymandering of congressional districts or less?"

 

Andrew Grossman:  I'm not sure that it's going to have an effect one way or the other. Racial gerrymanders are typically challenged under the Voting Rights Act, and that's federal law and this case doesn't really have anything to do with that.

 

Sam Fendler:  A big picture question, Andrew. There was -- especially surrounding the oral argument in the lead up to this, there was a lot of questions about what this means for democracy in America, runaway state legislatures, the wholesale reduction of voting power in the country. You talked a little bit about it in your opening remarks, but I'm curious if you could offer us maybe some parting thoughts here about how we square the rhetoric at the beginning to what the reality is today and just the macro view of things.

 

Andrew Grossman:  That's a good question, I think, to conclude with. I think one broader point to draw from Moore has been the catastrophizing that surrounds so many major Supreme Court cases. The claim that democracy hung in the balance in this case was false every step of the way and was something that even academics who sided with the respondents in this case -- in other words, the plaintiffs who brought the case -- recognized that a decision for the legislature would not authorize state legislatures to steal elections, would not authorize state legislatures to deny protected voting rights, and would not upend the free and fair conduct of federal elections. And yet, all of the public rhetoric, all of the public discussion over this case was that it was a slow-motion coup, that all of our rights were at stake, and that there really was only one sensible side to this discussion.

 

      But when you look at the issues and you look at the briefing, if you do the homework and you see the issues that were actually presented, and you look at the calmer analysts and what they're saying, it became clear that this is a very serious case. It was a very important case. It does have consequences for our democracy, and I think it would have been -- I don't want to overstate it, but I think it would have been a bad thing if the Court had ruled that there were no guardrails and that state courts do have free rein to refashion election laws along their own lights without any check whatsoever. That would have been detrimental to the way that we conduct elections.

 

But either way the Court decided the case, it wasn't putting rights at risk. It wasn't threatening the core aspects or really any significant aspects of our democracy. It was, like so many of these things, a question about the details of how it is that we govern ourselves. And I just think the broader lesson is that it's so easy to get carried away with the rhetoric that people use in describing this case as well as the Supreme Court more generally. But it also pays off, I think, to be more sober minded about these things. The justices are serious. They take their work seriously, and the cases that they accept are cases that present serious questions. If anybody tells you that a case is one sided, that the other side portends disaster and destruction and the end of our country, the odds are that they're probably not describing it accurately. And I think that was certainly the case this time around.

 

Sam Fendler:  Well, you mentioned it at the outset of that answer that it would be a great place to finish off. But before I do, sign us off, Andrew, is there anything you'd like to leave the audience within the next minute or so?

 

Andrew Grossman:  No, I think we've covered everything, and thanks to everybody for attending. 

 

Sam Fendler:  Wonderful. Well, on behalf of The Federalist Society, Andrew, I want to thank you for the benefit of your time and your expertise today. We, of course, greatly appreciate it. To our audience, I want to thank you as well. We appreciate your participation. Please, you can check out our website, fedsoc.org, or follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in, and we are adjourned.