Among the Supreme Court cases decided this year, none has been more misunderstood than Moore v. Harper (pdf).
The Moore case illustrates how difficult some of the court’s work can be. It also illustrates the ignorance and partisanship of many legal commentators and the foolishness behind the ubiquitous claim that the court has a “6–3 conservative bloc.”
Here are some striking aspects of Moore v. Harper and how the case was publicized:
- Because the principal defendant was the Republican-controlled state legislature of North Carolina, liberal commentators dismissed the defendant’s arguments as extreme and unprecedented. In fact, the North Carolina legislature’s arguments were very mainstream, based on a line of precedent dating back to 1798.
- Because the Republicans lost the case, the dominant media hailed the result as a liberal victory. Yet the court’s ruling is probably consistent with the Constitution’s original meaning. Normally, the media would call such a result “conservative.”
- Although the court’s opinion probably reached the right conclusion, it did so while largely ignoring evidence of the Constitution’s original meaning.
- More seriously, the opinion contains language that may prove troublesome the next time America faces another disputed presidential election.
- The so-called six-justice “conservative bloc” once again proved not to be a bloc at all. Three of the six agreed with the supposedly liberal result. One thought the case shouldn’t have been decided. Only two disagreed on the merits.
It would have been more accurate, although not entirely so, to say the court has a three-justice liberal bloc.
The Constitutional Background
The Constitution assigns tasks and responsibilities to officers of the federal government. But it also assigns specific tasks to persons and assemblies that aren’t part of the federal government. For example, presidential electors aren’t federal officials, but the Constitution grants them power to elect the president and vice president.
In like manner, the Constitution gives specific tasks to state governors, state and federal conventions, federal juries, and state legislatures.
The courts call these specific tasks “federal functions.”
Law school courses almost entirely ignore federal functions. So do law professors’ writings. The first academic article surveying federal functions wasn’t published until 2020, by the University of Pennsylvania Journal of Constitutional Law. I was the author (pdf).
The neglect of this field helps explain why so many commentators misunderstood the central issue in the case.
Now let’s examine that issue.
The Two Constitutional Meanings of ‘Legislature’
The Constitution delegates several federal functions to the national legislature (Congress) and to state legislatures. Depending on the context, the Constitution may mean “Congress” or “state legislature” in either of two ways:
(1) the entire law-making apparatus, including passage by both houses, signature by the president or governor, and review by the courts; or
(2) the legislative assembly acting alone and independently. (Commentators on the Moore case sometimes called this the “independent legislature doctrine.”)
Here are some illustrations of legislatures acting alone and independently:
Before the 17th Amendment (1913), the Constitution charged state legislatures with electing U.S. senators. They did so independently. The governor couldn’t veto a legislative resolution electing senators.
In 1798, the Supreme Court ruled that when Congress proposes a constitutional amendment, it acts independently. The proposal isn’t subject to the president’s veto.
Since that time, the courts have applied the same principle to state legislatures acting in the constitutional amendment procedure. State legislatures act independently. The governor may not veto a legislative resolution ratifying a constitutional amendment or proposing an amendments convention. Nor (in the amendment procedure) is the legislature subject to state law. It’s governed only by federal constitutional law (pdf).
Finally, the Constitution grants to each state legislature the federal function of determining the “Manner” of choosing its presidential electors. In the early republic, state legislatures often chose the electors themselves, or they adopted other methods, such as popular election. Either way, they could do so by simple resolution rather than by a formal state law. This understanding was cemented in the 1892 Supreme Court case of McPherson v. Blacker (pdf).
The Times, Places, and Manner Clause
The Constitution also provides:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof … ” (Article I, Section 4, Clause 1).
The Supreme Court calls this the Elections Clause, which is confusing because the Constitution has several other “elections clauses.” I prefer a more traditional name: The Times, Places, and Manner Clause.
The Founding-era record tells us that the power to prescribe the “Places” for members of the U.S. House of Representatives includes the power to draw congressional districts. The Constitution lodges this authority in the state “Legislature.” But does that mean the “Legislature” (1) acting alone or (2) as part of the wider law-making apparatus—including the governor, initiative and referendum, and the courts?
That was the central issue in Moore v. Harper.
Why the Case Was Politically Charged
As you can see, Moore centered on a very technical interpretation of the Constitution. But the case became politically charged. Here’s why:
Most states have Republican legislatures. This is likely to remain so during the foreseeable future. Republican legislatures tend to draw congressional districts to favor Republican candidates.
So for several years, liberal activists have tried to pull the district-drawing process away from the legislatures and into agencies more likely to be controlled by Democrats: the executive branch, the courts, and “independent” redistricting commissions.
Recall that liberal commentators branded the position of the North Carolina legislature as extreme and unprecedented. But if Democrats controlled most state legislatures, you can bet they would have told us that the same position wasn’t only correct but prescribed by the Founders!
The Court’s Decision
Chief Justice John Roberts’s opinion for the court spent some time dancing around the main issue. Much of the opinion was devoted to discussing the virtues of judicial review of laws. But the main issue was, “Does the Times, Places, and Manner Clause empower state legislatures to act by independent resolution instead of by standing laws?” If so, then judicial review of laws was irrelevant.
Ultimately, the opinion concluded that in the Times, Places, and Manner Clause the term “Legislature” means the entire legislative apparatus of the state. The legislative assembly can’t act alone. It must draw congressional districts with formal laws subject to the state constitution, as interpreted by the state courts.
In reaching this conclusion, Roberts’s opinion largely disregarded the Constitution’s original meaning. Instead, it focused on case precedents decided long after the Constitution was adopted. The dissenters also said little about the Constitution’s original meaning.
Yet there’s some pretty good evidence of what the Founders intended. The standard procedure for drawing legislative districts—both in England and America—was to do so by ordinary election laws (pdf). This is what the South Carolina legislature did in 1788, for example, when it drew its first state congressional districts.
Thus, Roberts’s conclusion probably was correct even if his method was flawed.
The Bad Part of the Case
As noted above, the traditional understanding has been that when a state legislature decides how its state’s presidential electors are chosen, the legislature acts alone and independently.
This isn’t only good constitutional law but also good practical law as well. It assures that if there’s doubt about the outcome of the state’s presidential popular vote in early November, the legislature has the flexibility to craft a remedy before the presidential electors cast their own ballots in mid-December.
However, Chief Justice Roberts’s opinion needlessly—and, fortunately, in non-binding language—cast doubt upon this traditional understanding. He quoted a passage from the McPherson case saying that a state’s legislative authority is “limited by the constitution of the state.” While that’s true, it ignores the fact that if the legislative assembly can act alone and independently, then it isn’t exercising state “legislative authority.” Rather, it’s exercising another kind of responsibility entirely: a federal function mandated by the U.S. Constitution.
Roberts’s language may create confusion the next time a state has a contested presidential election. Some are likely to use this language to prolong the uncertainty or induce the governor and state courts to intervene.
Without a fast legislative solution, the state’s chief election officer will be able to decide unilaterally (via certification) how his state’s electoral votes are cast.
That’s far too much power to vest in any one person.
This essay was first published in the July 13, 2023 Epoch Times.
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