Legal Alert

US Supreme Court Confirms Redistricting Authority of State Courts

by Edward D. Rogers, Robert J. Clark, and Paul Keller Ort
June 28, 2023

On June 27 in Moore v. Harper, a 6-3 majority of the United States Supreme Court upheld a state court’s power to invalidate a congressional district map that violates the state’s constitution. In an opinion written by Chief Justice John Roberts, the Court confirmed that the Elections Clause of the United States Constitution does not create a special exception to the basic principles of judicial review.

Moore, which was closely watched by election law scholars and voting advocacy groups, represents a stark rejection of the “independent state legislature” interpretation of the Elections Clause. In recent years, certain groups have employed this doctrine to argue that state legislatures, which often are dominated by one party, have the unfettered right to draw congressional maps without any judicial review for compliance with the state constitution. Advocates have also used the doctrine to attack state court rulings regulating voting rights, such as the Pennsylvania Supreme Court decisions regarding mail-in ballots in the 2020 election.

The Elections Clause states that “the Legislature” of each state shall prescribe “The Times, Places, and Manner” of federal elections. In the wake of the 2020 decennial census, various parties argued that this Clause deprives state courts of any authority to oversee the state legislative process of redistricting—an authority exercised, in many cases, after the state courts had found that the legislative maps violated state law (or, in some cases, after the state legislature failed to enact any map at all as occurred in Pennsylvania, see Carter v. Chapman).

Moore involved one such challenge arising from a new congressional map drawn by the Republican-controlled North Carolina legislature following the 2020 census. In a subsequent case brought by Common Cause and other advocacy groups, the trial court agreed that the maps were overtly partisan but declined to invalidate them by holding that gerrymandering claims were nonjusticiable political questions. The Supreme Court of North Carolina initially reversed the trial court and struck down each map as impermissible partisan gerrymanders under the North Carolina Constitution. But following an election in which Republicans took control of the Court, it reversed its initial decision, agreeing with the trial court that it lacked jurisdiction to review the claims.

The U.S. Supreme Court concluded that the matter was ripe for federal review and proceeded to hold that state legislatures must comply with the state constitution in enacting congressional maps as in any other sphere of legislation—and are therefore subject to judicial review in state court. Chief Justice Roberts’s opinion relied on a long history of state court judicial review that pre-dated and informed the Constitutional Convention, together with more recent precedent holding that the Elections Clause does not eliminate normal checks and balances against the exercise of state legislative power.

Moore represents a substantial victory for litigants seeking to bring state-law constitutional challenges to maps drawn by their legislatures. That said, the case did leave the door open to further disputes regarding the scope of the Elections Clause. The Court noted in closing that “state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures” by the Elections Clause. In future redistricting cycles, litigants will no doubt explore the precise contours of “ordinary judicial review,” and continue to seek federal review of high-stakes state court decisions that invalidate their favored congressional maps.

For more information about the decision, contact Litigation Partner Edward D. Rogers, who participated in multiple election law and reapportionment cases in the 2020 and 2022 elections (including Carter v. Chapman), or Robert J. Clark, leader of Ballard Spahr’s Government Affairs and Public Policy Group. 

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