Moore v. Harper

LII note: The U.S. Supreme Court has now decided Moore v. Harper.


Can a state supreme court, without the explicit instruction in its state constitution, void the state legislature’s election law and replace it with judicially-devised election law?

Oral argument: 
December 7, 2022

This case asks the Supreme Court to decide whether the judicial branch has the authority to overrule a state legislature’s redistricting map. In 2021, the North Carolina Legislature created a redistricting map that the North Carolina Supreme Court subsequently struck down for violations of the North Carolina State Constitution. The Elections Clause of the United States Constitution declares that state legislatures shall determine state election laws, but it does not explicitly state whether state courts can review those laws for state constitutional violations. Moore argues that the Elections Clause grants state legislatures the sole authority to regulate the time, place, and manner of elections and, consequently, other branches are prohibited from interfering with this authority. Harper counters that Moore’s reading of the Election Clause is erroneous, as it would allow state legislature to violate their own state constitutions. The United States Supreme Court’s decision could affect voter perception of election integrity, as well as how much power state legislatures have in determining election law.

Questions as Framed for the Court by the Parties 

Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.


On November 4, 2021, the North Carolina Legislature passed new redistricting maps for its congressional elections. Moore v. Harper at 18a. Twelve days later, Plaintiffs North Carolina League of Conservation Voters and several North Carolina Citizens (“NCLCV”) filed a complaint and motion for a preliminary injunction against Defendants, several members of the North Carolina Legislature (collectively “Moore”). Id. at 19a. On November 18, 2021, Plaintiffs Rebecca Harper and other North Carolina citizens filed a separate complaint and motion for a preliminary injunction against the same defendants. Id. at 19a–20a.

Both complaints alleged that the redistricting maps diluted the votes of racial minorities in violation of the North Carolina Constitution. Id. On December 3, 2021, a three-judge panel of the Superior Court, Wake County consolidated the two complaints (collectively “Harper”) and denied the motions for a preliminary injunction.

The Superior Court panel, upon examining the merits of the complaints, found that the redistricting maps were the product of “intentional, pro-Republican partisan redistricting.” Id. at 24a. While the court did not find direct evidence of intent, it nevertheless concluded that the probability of computer algorithms, which produced the maps, creating such partisan maps at random is infinitesimally small. Id. at 34a–35a, 46a. The court did not find evidence of a racial motive in enacting the maps. Id. at 47a. The court ultimately concluded that the redistricting maps did not violate the North Carolina Constitution. Id. at 48a. It reasoned that the North Carolina Constitution does not provide the state’s courts with the authority to adjudicate gerrymandering claims because they are political questions properly addressed to the other branches of government. Id. Therefore, it denied Harper’s claims and lifted the preliminary injunction. Id. at 57a.

Harper appealed the denial of the motions to the North Carolina Court of Appeals, which affirmed the three-judge panel. Id. at 20a. The North Carolina Supreme Court heard the case under discretionary review without waiting for the North Carolina Court of Appeals to hear the appeal; meaning the appeal of the denial of plaintiffs’ claims went directly to the North Carolina Supreme Court, bypassing the Court of Appeals. The North Carolina Supreme Court reversed the three-judge panel’s holding. Id. at 58a. First, it found that North Carolina courts do have the authority to hear gerrymandering questions. Id. The court subsequently held that the redistricting maps violated the free elections clause, equal protection clause, free speech clause, and freedom of assembly clause of the North Carolina Constitution’s Declaration of Rights. Id. at 79a. In particular, the court found that these clauses of the Declaration of Rights together establish principles of democratic and political equality. Id. at 88a. The court then remanded the case to the three-judge panel to either redraw the maps itself or oversee the legislature’s redrawing of the maps. Id. at 142a.

On February 25, 2022, Moore applied to the United States Supreme Court for a stay of the North Carolina Supreme Court’s order. Emergency Application for Stay at 1. Moore sought to keep the existing maps until the United States Supreme Court could itself decide the case on the merits. Id. By this point, two more groups had joined the proceeding as NCLCV—Common Cause and several state legislators. Moore v. Harper at 4a–5a. While the Court denied the application, it granted Moore’s petition for a writ of certiorari on June 30, 2022. Emergency Application for Stay at 1. The Supreme Court will continue to consolidate the Harper and NCLCV case although both parties filed separate briefs (“Harper” and “the state legislators”).



Moore, opposed to the adoption of the court-designed election map, posits that because the Elections Clause of the U.S. Constitution states that federal election rules in each state shall be determined by the “Legislature thereof,” state legislatures are the only governmental body permitted to set states’ election rules. Brief for Petitioner, Timothy K. Moore at 13. Conversely, Moore argues, state courts lack the authority to set states’ election rules. Id. at 13. Moore contends that the U.S. Constitution’s framers intended to assign this exclusive authority to state legislatures. Id. at 15-17. Moore also points to the Constitution’s distinctions between delegating power to state governments or to their individual bodies, contending that its specificity in assigning election rulemaking to state legislatures indicates that power is not shared by another body of state government. Id. at 18-19. Moore also contends that this division of authority is consistent with the founders’ view of the election rulemaking as best suited to democratically accountable legislatures instead of unelected judges. Id. at 19-20.

On the other hand, Harper argues that “Legislature” more broadly describes a body empowered by the people to create laws. Brief for Respondent-Non-State at 19-20. Harper and the state legislators note that several founders expressed their belief that state legislatures cannot exceed the authority granted to them by their state constitutions. Id. at 22-23, 30; Brief for Respondent-State at 27-28. Therefore, Harper and the state legislators argue that judicial review, in which a government’s judicial branch reviews the actions of its legislative branch to ensure constitutional lawfulness, would serve to enforce those limits, including those on legislatures’ election rulemaking. Id. at 22-23, 30; Brief for Respondent-State at 27-28. The state legislators further argue that no historical evidence suggests the framers intended to exempt state legislatures from the separation of powers that is otherwise abundant in the Constitution. Brief for Respondent-State at 37. To the contrary, the state legislators note that, shortly before and after the U.S. Constitution’s enactment, several states enacted constitutional provisions regulating federal elections, suggesting that the founders intended to permit these limits in the Elections Clause. Id. at 38; Brief for Respondent-Non-State at 29, 31-33. In fact, Harper contends, Congress has expressly required that state legislatures comply with their state constitutions in election rulemaking and authorized state courts to draw election maps under 2 U.S.C. §§ 2(a) and 2(c). Brief for Respondent-Non-State at 65-66.


Moore argues that, because senators and representatives hold federal office, state governments’ power to pass laws governing their elections is limited to that granted in the Elections Clause and cannot be expanded by state constitutions. Brief for Petitioner at 22, 41-42. Moore distinguishes limits on state legislatures’ procedural and substantive rulemaking power, noting that while state constitutions may regulate the procedural aspects of state legislatures’ election rulemaking, they cannot limit the legislatures’ substantive power prescribed by the U.S. Constitution. Id. at 24. In support of this interpretation, Moore points to two state legislatures’ founding-era debates, in which legislators expressed that they could not regulate senators’ nominations more than permitted by the Elections Clause of the U.S. Constitution. Id. at 33-34. Moore additionally maintains that state constitutions’ restrictions on legislatures’ election rulemaking only applied to state elections, not federal elections. Id. at 39.

Harper and the state legislators counter that state legislatures can only execute the federal power granted to them in the Elections Clause by passing state laws and are therefore subject to the constraints of their state constitutions in doing so. Brief for Respondent-Non-State at 55-56; Brief for Respondent-State at 33. Harper and the state legislators argue that the Elections Clause does not shield state legislatures from review under their state constitutions, pointing to the lack of any debate over that question prior to the enactment of the U.S. Constitution. Brief for Respondent-State at 35. Harper and the state legislators further contend that the Supreme Court has never recognized a distinction between procedural and substantive limits on state legislatures’ election rulemaking, and that many state constitutions contain both. Brief for Respondent-Non-State at 51; Brief for Respondent-State at 52. Harper also asserts that the Tenth Amendment, which grants the states all authority not expressly addressed in the U.S. Constitution, allows states to structure their own governments, including their legislatures’ election rulemaking. Brief for Respondent-Non-State at 27-28.


Moore argues that, because the Elections Clause specifically authorizes Congress to change states’ federal election rules, states may not create additional checks on legislatures’ election rulemaking. Brief for Petitioner at 17-18. Pointing to states’ failure to enact founding-era proposals for limits on state legislatures’ election rulemaking and courts’ refusal to strike down any election map before 1932, Moore argues that permitting judicial review of their decisions would render the Elections Clause meaningless. Id. at 21, 25-26, 29. Moore further maintains that the minor restraints on state legislatures’ election rulemaking enacted in some states are not significant enough to overcome the Elections Clause’s explicit mandate of exclusive authority to the state legislatures for election rulemaking. Id. at 38.

Moore also asserts that under North Carolina’s state constitution the state’s legislative, executive, and judicial functions are separate, and the state judiciary is neither part of the state legislature nor delegated any of its power over election rulemaking. Brief for Petitioner at 44-45. Moore contends that the only North Carolina statutes delegating power to its courts related to election rulemaking concern procedures for challenging election rules and do not convey any substantive authority to the courts regarding the rules themselves. Id. at 47. Moreover, Moore argues, state legislatures may only delegate their power to the executive branch, not the judiciary. Id. at 46. Regardless, Moore maintains that the intricate policymaking that North Carolina courts took up in crafting election maps is an undelegated legislative power. Id. Accordingly, Moore asserts that, of those provisions of North Carolina’s state constitution that ostensibly delegate the legislature’s power over elections, they only apply to elections for state office. Id. at 48.

Noting that state legislatures’ election rulemaking falls squarely within their traditional legislative role, Harper and the state legislators counter that the standard constraints on legislative action apply to election rulemaking, including judicial review of their compliance with state constitutions. Brief for Respondent-Non-State at 22; Brief for Respondent-State at 26. The state legislators further maintain that it would be inconsistent with the enforcement practice associated with federal constitutional doctrines, such as the Equal Protection Clause, to suggest that state courts cannot interpret and apply the Elections Clause of the U.S. Constitution. Brief for Respondent-State at 20. The state legislators also point to the similarity between Congress’s and state legislatures’ power under the Elections Clause to suggest that state legislatures are subject to judicial review in their state courts just as Congress is in the federal courts. Id. at 31-32; Brief for Respondent-Non-State at 25. Harper additionally contends that legislatures may delegate non-adjudicative functions to their states’ judicial branches. Brief for Respondent-Non-State at 63. The state legislators point to states’ post-1820 laws and Congress’s constraints on state legislatures’ power under the Elections Clause to argue that the Elections Clause has long been widely understood to permit limitations on state legislatures’ election rulemaking power. Brief for Respondent-State at 47.

Additionally, Harper and the state legislators argue that North Carolina’s legislature delegated a judicial, not legislative, power to the state’s courts in empowering them to review election rules’ constitutionality. Brief for Respondent-Non-State at 62-63; Brief for Respondent-State at 12, 14. Harper and the state legislators note that the North Carolina courts correctly followed the procedures in those statutes in adjudicating all stages of this litigation. Id. The state legislators further maintain that the history of North Carolina’s election statutes’ enactment and subsequent use, as well as their inclusion of the phrase “all elections,” indicate that they apply to both state and federal elections. Brief for Respondent-Non-State at 33; Brief for Respondent-State at 15-16, 41. Lastly, Harper and the state legislators emphasize that the Supreme Court lacks jurisdiction to hear a challenge to the court-drawn election map because it is presently part of an ongoing appeal in the North Carolina state courts. Brief for Respondent-Non-State at 67-73; Brief for Respondent-State at 22, 24. Even if the Supreme Court could hear the challenge, Harper and the state legislators maintain that the courts utilize the equitable power inherent in their judicial role when they draw an election map to remedy a constitutional violation. Brief for Respondent-Non-State at 67-73; Brief for Respondent-State at 22, 24.



Arkansas and twelve other states (“States”), in support of Moore, contend that allowing state courts to override the legislature’s election laws detracts from the will of the people. Brief of Amici Curiae Arkansas et al., in Support of Petitioner at 3–4. In other words, the States argue that the North Carolina Supreme Court improperly acted as a law-making body and usurped the people’s power in limiting the legislature from creating its own redistricting maps. Id. at 6.

Pennsylvania State Senator Kim Ward and the Republican Caucus of the Pennsylvania Senate (“Pennsylvania Senators”), also in support of Moore, posit that state court judges are not accountable to the people in the same manner as the other branches of government. Brief of Amici Curiae Senator Kim Ward et al., in Support of Petitioner at 12. In addition, the Pennsylvania Senators assert that the legislative process is more open and involves a deliberative process of negotiations and compromise. Id. at 12–13. With an open process, Pennsylvania Senators add, voters are more easily able to hold legislators accountable for actions that do not match the desires of their constituents. Id.

Former California Governor Arnold Schwarzenegger, in support of Harper, counters that state constitutions themselves are enacted by the people and so state judges are ensuring that legislators follow the people’s wishes. Brief of Amicus Curiae Governor Arnold Schwarzenegger, in Support of Respondent at 10–11. Schwarzenegger further states that there is no proper distinction between judicial review of election-related constitutional provisions and other provisions of state constitutions. Id. at 11. As such, Schwarzenegger asserts, if people accept that the courts should ensure state actors follow the state constitution in other contexts, this context is no different. Id.

Scholars of State Constitutional Law (“Scholars”), also in support of Harper, emphasize that judicial review is a necessary check on legislative power and therefore protects the people’s constitutional rights. Brief of Amici Curiae Scholars of State Constitutional Law, in Support of Respondent at 31. Scholars add that legislators are agents of the people, and the courts act as a governance mechanism to ensure that the people’s intentions override the agents’ intentions. Id. at 30–31.


America’s Future, Inc., in support of Moore, expresses its fear that allowing state courts to strike down state election laws so close to election day will undermine confidence in elections. Brief of Amicus Curiae America’s Future, Inc., in Support of Petitioner at 23–24. America’s Future argues that elections will become a battle between lawyers litigating in the state courts rather than about the will of the voters. Id. at 29. Lawyers Democracy Fund and State Legislators (“Legislators”), also in support of Moore, posit that allowing the courts to create election law will create partisan battles in the court system. Brief of Amici Curiae Lawyers Democracy Fund and State Legislators, in Support of Petitioner at 16. The Legislators maintain that regardless of the content of a state’s constitution, partisan activists twist its meaning to ensure election laws that favor their party. Id. at 20–21.

The Anti-Defamation League and other religious organizations (“ADL”), in support of Harper, counter that rather than undermine confidence in elections, state courts ensure that there is no discrimination against minority groups. Brief of Amici Curiae Anti-Defamation League, in Support of Respondent at 6–7. The ADL fears that the will of the majority could overcome state legislatures and erase the ability of minority groups to vote. Id. Human Rights Watch (HRW), in support of Harper, contends that gerrymandering itself reduces confidence in elections. Brief of Amicus Curiae Human Rights Watch, in Support of Respondent at 4. HRW contends that gerrymandering undermines the will of the people, and courts should be able to ensure voter confidence in election integrity and fairness. Id. at 4.



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