by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
When the US Supreme Court granted cert (agreed to hear the case) to plaintiff petitioners from the North Carolina General Assembly in Moore v. Harper, I noted that there were two likely outcomes of the case:
If the court finds for the General Assembly, it could make a broad ruling that would effectively cut state judiciaries out of the redistricting process entirely or a narrow ruling holding that state judiciaries can hold congressional districts to be unconstitutional under state constitutions but that the actual drawing of maps must be done by state legislatures or bodies state legislatures designate to draw districts.
Now two law professors have explained the legal reasoning behind the “narrow ruling” and held it up as “a sensible middle ground:”
Later this term, the Supreme Court will decide Moore v. Harper, a case that has been pitched as a seismic clash between two troubling positions. One side asks for state legislatures to be freed from the traditional safeguards of state constitutional law, while the other asks the Court to effectively ignore the text of the Constitution. The Court should look beyond these unsupportable positions and take a commonsense middle ground. Fortunately, one is readily available: an approach that maintains the Constitution’s emphasis on state legislatures without divorcing them from their traditional constitutional constraints…
Missing from the debate has been a key principle that points to a sensible middle ground: A state constitution may limit a legislature’s power over federal elections, but it may not give that power to somebody else. We need not an independent-state-legislature doctrine, but a constitutional-state-legislature doctrine…
It means that state constitutional provisions can restrain legislative districting, such as by limiting the use of partisan gerrymandering. The broad challenge to state constitutional law in Moore therefore should fail. But it also means that the North Carolina courts do not have independent constitutional power to adopt their own map.
You may recall that a group of court-appointed special masters drew North Carolina’s current congressional districts earlier this year. Analysis has found that the court-drawn districts are a “Democratic protection plan that will likely spare them from the worst of an expected red wave this fall.”
That “constitutional-state-legislature doctrine” is the most likely outcome of Moore v. Harper and the only outcome that might result in a unanimous decision. Such a decision would affect congressional, but not state legislative, maps.