by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
North Carolina Gov. Roy Cooper wrote an opinion piece in the New York Times in which he mentioned the U.S. Constitution in passing. Still, he spent most of the article making attacks against his political opponents. Let’s take a different tack and examine what the Constitution says about who can draw congressional districts, relying on competing views of Supreme Court justices in a recent case: Arizona State Legislature v. Arizona Independent Redistricting Commission (ASL v. AIRC, 2015).
The power to regulate elections is granted to state legislators, with backstop power for Congress, in Article I, Section 4 (known as the “Elections Clause” ):
The 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.
A plain reading of the clause would lead to the conclusion that the plaintiffs are correct: that the power to regulate elections, including redistricting, rests with state legislatures. It may be slightly more complicated than that, however.
Writing for a 5-4 majority in the 2015 ASL v. AIRC, Justice Ruth Bader Ginsburg asserted that “legislature” in the clause means the lawmaking function, which can include governor’s vetoes (as established by the Supreme Court in 1932 in Smiley v. Holm).
Notably, the North Carolina State Constitution does not allow the governor to veto redistricting bills (Article II, Section 22).
According to Ginsburg, the lawmaking function can also include the people through ballot initiatives, such as the one that created Arizona’s redistricting commission (page 33 of the majority decision):
The people, in several States, functioning as the lawmaking body for the purpose at hand, have used the initiative to install a host of regulations governing the “Times, Places and Manner” of holding federal elections.
Only Justices Sonia Sotomayor and Elena Kagan remain from that 2015 majority.
While Supreme Court dissents do not carry the same precedential weight as rulings, one of the dissents in ASL v. AIRC requires close attention for several reasons. First, Chief Justice John Roberts wrote it. He was joined by Justices Clarence Thomas and Samuel Alito, meaning that more justices who dissented in ASL v. AIRC heard Moore v. Harper than those who signed onto the majority opinion. In addition, the court now has a 6-3 majority of justices inclined to take the words of the Constitution literally (if not consistently so, in the case of Roberts).
The Elections Clause both imposes a duty on States and assigns that duty to a particular state actor: In the absence of a valid congressional directive to the contrary, States must draw district lines for their federal representatives. And that duty “shall” be carried out “in each State by the Legislature thereof.”
Both sides agreed that redistricting is a “legislative function” to be carried out by those with legislative authority. In North Carolina, the only body with legislative authority to draw legislative and congressional districts is the General Assembly.
One could argue that the General Assembly invited the judiciary into redistricting by granting them authority to “impose an interim districting plan” by statute. That law, however, grants courts such authority only if the General Assembly does not draw remedial maps. In this case, the legislature had drawn a remedial map, but a lower court rejected it and imposed its own.
So in this case, the North Carolina Supreme Court and a lower court usurped the authority of legislators (no matter how defined) to prescribe the “Times, Places and Manner of holding Elections” by drawing a congressional map and imposing it on the General Assembly in violation of North Carolina’s legislative process for redistricting. In doing so, the state courts violated the Election Clause.
Does that mean there can be no state limits on the legislative authority to draw congressional maps?
While the Elections Clause is specific in that only state legislatures have the authority to draw congressional districts, it is silent on any restrictions legislatures may operate under when drawing those districts. That opens the door to a middle-ground decision in which “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.”
That sensible middle ground is also consistent with both interpretations in ASL v. AIRC of what the Constitution means by “state legislature.” As such, it even opens the possibility of a 7-2, 8-1, or even unanimous decision. That would be an unexpected but welcome development for such a divisive case.
While the case may have long-term, if narrow, impacts across the country, it will likely have little-to-no effect on North Carolina’s congressional districts in the 2024 election. The “interim” map used in 2022 is already destined to be scrapped in the next session of the General Assembly. A newly elected Republican majority to the North Carolina Supreme Court is another factor. They are likely not to take as sweeping a view of their power to redraw congressional districts as their departing Democratic colleagues did, meaning that the congressional map the General Assembly draws will likely be safe from the kind of judicial overkill the 2021 map faced.
For all the sound and fury surrounding Moore v. Harper, a narrow, consensus decision that could have no bearing on North Carolina’s next congressional district map would be a satisfyingly ironic conclusion.