What Happened During the U.S. Supreme Court Argument in Moore v. Harper

On Wednesday, Dec. 7, the U.S. Supreme Court heard oral argument in Moore v. Harper, a case out of North Carolina that gives the Court the opportunity to consider the fringe independent state legislature (ISL) theory. You can find a recording of the argument here and find the live play-by-play below.

Live Updates

Wednesday, Dec. 7, 2022

Last updated: 1:14 p.m. EST

• Oral argument concludes.
• The Moore lawyer concludes by rejecting the wider implications of his position that the Harper lawyers and the solicitor general raised throughout the argument.
• The Moore lawyer begins his rebuttal. He argues that state constitutions should be given less deference by a federal court than state statutes when state constitutions and statutes restrict a state legislature because state legislatures can more easily change statutes. Despite conceding multiple times earlier in the argument that he is not disputing the North Carolina Supreme Court’s decision, the Moore lawyer argued that the state court’s decision was improper. “From the founding of the Republic, states have had the opportunity to have two different sets of elections [laws], and they’ve consistently declined that invitation. And there’s no reason to think that they would do so in this context.”
• In response to a question from Jackson, the solicitor general agrees that there’s no need for the Court to determine a test to decide if a court is acting as a court in this case. The solicitor general concludes her argument by stating that the Moore lawyer is ​​”making far more sweeping arguments that would take off the table 233 years of history in this country, state constitutional provisions that have applied under the Articles of Confederation and in the early decades of the Republic and still today.”
• The solicitor general agrees that the same standard should be employed in statutory and constitutional questions but that the amount of deference afforded to state courts may be higher in constitutional questions. Given the fact that constitutional provisions are often more broad and vague than statutes, state judges often employ “additional methodology” to properly interpret them. The solicitor general added: “I think that federal courts should not be in the business of saying that the state courts aren’t giving those…a fair reading.”
  • The solicitor general’s comment was made in reference to the differing position of the Harper state and non-state lawyers where they distinguish between the amount of deference owed to a state court when that court has interpreted its own state laws (statutory interpretation) versus its state constitutional provisions (constitutional interpretation).
• Sotomayor: “At what point has a court acted not as in judicial review, but in legislating?” The solicitor general: “We think the closest analogue to try to track this problem I’ve described — of when a [state] court is not faithfully engaged in judicial review — is to borrow from the adequate and independent state grounds context and specifically the civil rights cases, where the Court has said that if the state court decision is so lacking in any basis, and has no fair or substantial support, and can only be understood as an effort to frustrate federal rights, then the Court can look past that [state court] decision.”
• Alito asks about the interpretation of two federal laws that govern redistricting. The solicitor general: “We think that these statutes add for purposes of this case, just additional confirmation from Congress…that other organs of the state government, including courts, could play a role in the process.”
• Roberts asks about the meaning of an ordinary restraint on a legislature and when a restraint might be considered extraordinary. The solicitor general argues for substantial deference to state courts. “It is not the ordinary case where the Court is second guessing a state court’s interpretation of its own state law. Usually the Court treats the state courts as conclusive expositors of state law because they have way more institutional competence in their own methodologies, which of course may differ from the methodologies this Court would deploy with respect to the [U.S.] Constitution and they have a lot more familiarity with the content of their state law.” 
• Roberts: “I think you have to address the fact that there is…a tension between state power and federal power.” The solicitor general: “I acknowledge that that makes this a case…but I think using all of the traditional tools here, both with respect to text history, precedent, each of those counsels forcefully against drawing this kind of substance procedure distinction.”
• Solicitor general: “A law that violates the [state] constitution is no[t] [a] valid law at all in North Carolina.”
• Kagan asks about the Moore lawyer’s argument that the legislature should be constrained by federal review, but not state constitutional review. The solicitor general argues that the U.S. Supreme Court has already rejected that distinction and that the Framers would have understood that state judicial review and state constitutional constraints would have been involved in federal elections.
• Gorsuch asks if it’s permissible to set aside the laws that a state legislature creates for federal elections. The solicitor general: “Our theory is that that’s consistent with the Elections Clause under this Court’s precedent because the Framers vested the state legislature with their lawmaking power, and that has always been understood to be subject to state constitutional constraints.”
• Thomas asks if the solicitor general agrees that federal courts have to be highly deferential to state courts. The solicitor general: “The state court is conducting judicial review and it’s interpreting its state constitution…that presents no fundamental conflict with the Elections Clause itself. So the standard would have to be trying to identify those circumstances when a state court isn’t really functioning through the process of ordinary judicial review.”
• U.S. Solicitor General Elizabeth Prelogar begins her argument on behalf of the United States. “[The Moore lawyer’s] theory rejects all of this history and would wreak havoc in the administration of elections across the nation…The Court should adhere to the consistent practice that has governed for more than two centuries, and should reject petitioners atextual, ahistorical and destabilizing interpretation of the Elections Clause.”
• Harper state lawyer: “I think it would be an extraordinary thing to say, as my friends on the other side are saying here, that the Elections Clause requires that all of those provisions and then countless others…be disabled with respect to congressional elections [and] that would be an extraordinary thing to do.”
• Kagan asks how courts can determine when judges “have engaged in policy making rather than law.” The Harper state lawyer states that “it’s ultimately up to the [U.S.] Supreme Court.”
• Sotomayor: “How do we deal with this distinction between procedural and substantive limits and whether [the North Carolina Supreme Court] went too far?” The Harper state lawyer: “There is a limit to…the state court’s ability to enforce state constitutional provisions. That limit is the standard that I articulated twice.” That standard is “that you’d ask whether the state [court] decision is such a sharp departure from the state’s ordinary modes of constitutional interpretation that [it] lacks any fair and substantial basis in state law.”
• Alito suggests that the North Carolina Supreme Court usurped power from the state Legislature. The Harper state lawyer argues that he can’t “see how one could say that that is so far outside the bounds of reasonable interpretive principles that the state court here was acting as a legislature and not a court.”
• Alito continues to ask about the basis of the North Carolina Supreme Court’s decision striking down the Legislature-drawn congressional map. The Harper state lawyer reinforces that the Moore lawyer is not contesting the validity of the state Supreme Court’s decision.
• Alito brings up the English Bill of Rights of 1689 — which was referenced in the North Carolina Supreme Court’s opinion — and asks why it’s relevant to the case. The Harper state lawyer points to the fact that the Free and Fair Elections Clause in the North Carolina Constitution is derived from the English Bill of Rights and that those who drafted the state constitution were concerned about partisan gerrymandering.
• Alito asks for an example that would fail the standard that the Harper state lawyer articulates. The Harper non-state lawyer: “A naked declaration that an act of a legislature under a free and fair elections clause is unfair without any grounding in history or precedent or sound analysis.” 
• The Harper state lawyer departs from the Harper non-state lawyer in arguing that different standards should apply to state statutes and state constitutions. “I don’t think it’s a difference in standard as much as in the application of the standard.”
• Kagan asks what a state could do if it didn’t have the specific laws authorizing judicial review of congressional maps and the state court didn’t give the state legislature a chance to remedy a map. “Are there any limits on this?” The Harper state lawyer points to equitable principles (meaning legal principles that ensure fairness) in the U.S. Constitution.
• Roberts asks if the delegation of power to special masters in redistricting litigation creates an issue. The Harper state lawyer responds that North Carolina has an explicit statutory authorization for a particular three-judge panel to implement a remedial map and special masters can be a part of that.
• Roberts asks about the North Carolina Supreme Court’s opinion in Harper v. Hall, the original redistricting lawsuit from which the appeal to the U.S. Supreme Court arose. The Harper state lawyer notes that no one is contesting the legitimacy of the state Supreme Court’s opinion and supports the state court’s interpretation of the state’s Free Elections Clause.
• Thomas asks the Harper state lawyer what standards allow the federal courts to review a state court decision. Harper state lawyer: “We think the standard is that you’d ask whether the state [court] decision is such a sharp departure from the state’s ordinary modes of constitutional interpretation that [it] lacks any fair and substantial basis in state law.”
• The Harper state lawyer begins his argument. “Today, in addition to the state constitutions that expressly address partisan gerrymandering…absentee voting, voting by the military, voter ID and primary elections and many other aspects of the electoral process…petitioners must repudiate all of that long standing and comprehensive history. It’s a very powerful indication that they are misreading the Elections Clause.”
• Jackson: “I guess what I’m a little worried about is the suggestion that when the legislature is acting is exercising legislative authority in this context, it does not have to adhere to any state constitutional constraints on its power when it’s the state constitution that gives it its power and tells us when it is appropriately acting as the legislature not just with respect to the issue of elections.” Harper non-state lawyer: “That’s 100% right.”
• Jackson: “I’m wondering whether the answer about why a state constitution is different in this context is because the state constitution is the front of authority for all the relevant parties in terms of this dispute…Am I wrong in thinking about it that way? Harper non-state lawyer: “We think you’re absolutely right.”
• Barrett piggybacks off Kavanaugh’s question and asks when a state court would violate the Elections Clause. The Harper non-state lawyer: “The ultimate test is, use the court you know, have such little legal reasoning that it can only be understood as seizing the policymaking apparatus that would otherwise exist…If it’s ordinary judicial review, as it has been for 233 years, we don’t think there’d be a violation.”
• Kavanaugh asks about the Harper non-state lawyer’s understanding of the Bush v. Gore decision. The Harper non-state lawyer affirms that “state constitutions are at the apex of sovereignty” and that federal court review of state constitutions requires a higher standard than federal court review of state statutes, which is what was at issue in Bush v. Gore.
• Harper non-state lawyer: “If you adopt [the Moore lawyer’s view], about abstract clauses or things like that, I don’t know what is abstract and what isn’t abstract. Every clause is going to have open ended stuff in it and you’re opening Pandora’s box.”
• Kagan asks the Harper non-state lawyer about Rehnquist’s concurrence from Bush v. Gore. “Your view…is that the Rehnquist concurrence isn’t implicated here.” Harper non-state lawyer: “Correct.”
• Following a question from Sotomayor, the Harper non-state lawyer rebuts the two main historical examples put forward by the Moore lawyer: Leser dealt with the federal constitutional amendments so that “certainly doesn’t bear on the original meaning of the Elections Clause.” With respect to Virginia’s 1830 constitutional debate, the Harper non-state lawyer pushed back that 1830 was “not the Bruen time period of the founding,” referencing the Bruen opinion’s focus on the time of the founding. “I am not aware of a decision by this Court that invalidates early state constitutional provisions as being federally unconstitutional in the way that this theory does.”
• Alito: “The standard is incredibly high, but doesn’t go up to the stratosphere…[your position] sounds like no standard at all…What is the check on an appointed state Supreme Court?” The Harper non-state lawyer points to the amendment process, federal constitutional review and Congress and describes the only check offered by the Moore lawyer as federal constitutional review.
• Alito asks about instances where federal courts don’t have to defer to a state Supreme Court’s interpretation of state law. The Harper non-state lawyer: “We don’t doubt that there is some review by this court in the most extreme circumstances, it’s just that the standard is incredibly high.”
• Thomas: “I’d like you to just tell me what is the source of the authority for the… North Carolina Supreme Court to be involved in a federal election?” The Harper non-state lawyer repeats that the authority comes from the Elections Clause of the U.S. Constitution. “The question is whether or not they have misread it or not. And so I think that’s the source of the substantive, alleged substantive violation here. I think you’re absolutely right, the spirit of your question. For 233 years, this Court’s never gotten involved and said, ‘Hey, we’re going to you know…say the North Carolina [Supreme] Court, got it wrong or their provision was too abstract for enforcement or anything like that.’”
• Thomas asks if the Harper non-state lawyer would be making the same argument if the North Carolina Supreme Court had overturned a map that was “generous to minority voters.” The Harper non-state lawyer says he would.
• Thomas: “You said that this Court doesn’t normally second guess state court interpretations of their own constitution. Would you say that in the case of Baker v. Carr?” In Baker, the Court held that state legislative redistricting was a justiciable issue before the U.S. Supreme Court and that federal courts can consider federal Constitution violations in state-level redistricting. In the case before the Court today, the focus is on North Carolina’s federal congressional map, not a state legislative map. Harper non-state lawyer: “Sovereignty was at its apex when you’re talking about state constitutions and interpretations by state courts.”
• The Harper non-state lawyer rejects the need for the U.S. Supreme Court to correct the North Carolina Supreme Court’s interpretation of the North Carolina Constitution.  
• Roberts: “Do you think the phrase ‘fair and free elections’ is providing standards and guidelines?” The Harper non-state lawyer says “yes” and distinguishes state court review of partisan gerrymandering from federal court review of partisan gerrymandering. 
• Alito: “Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected [state] Supreme Courts where the candidates are permitted, by state law, to campaign on the issue of districting?” The Harper non-state lawyer says that there are a number of ways in which permitting state courts to regulate federal elections furthers democracy and that the Moore lawyer’s argument could have catastrophic consequences. The Harper non-state lawyer adds that “this Court has never second guessed a state court interpretation of its own [state] constitution in any context.”
• Alito asks the Harper non-state lawyer about the limits of his argument. “Suppose the state constitution says that congressional districts will be determined by the state Supreme Court exercising legislative power. Is that consistent with the Elections Clause?” The Harper non-state lawyer says it would not be. “There may be some redefinition of the legislature…but that isn’t what we are arguing here. We’re talking about ordinary checks and balances like judicial review.”
• Alito points out that Smiley was decided on a narrow ground to permit vetoes. The Harper non-state lawyer agrees that the veto is a legislative power, but the overall point is to “take legislatures as you find them.”
• Thomas asks the Harper non-state lawyer where state involvement in federal elections comes from. The Harper non-state lawyer affirms that the authority comes from the Elections Clause and lists four pieces of historical evidence that support state court involvement in elections:
  • The U.S. Constitution and Articles of Confederation, since they both refer to the word “legislature” in the same way
  • The fact that, after the U.S. Constitution was ratified, states such as Delaware and Maryland and Mississippi expressly regulated federal elections
  • The veto of a federal elections bill in New York in 1792 because it was “repugnant to the state constitution”
  • The historical content within the Federalist Papers
• The Harper non-state lawyer continues: “Finally, the blast radius from their theory would sow elections chaos, forcing a confusing two-track system with one set of rules for federal elections and another for state [elections]. Case after case would wind up in this Court with a political party on either side of the ‘v’ that will put this Court in a difficult position instead of leaving it to the 50 states.”
• The Harper non-state lawyer begins his argument. “For 233 years, states have not read the Elections Clause the way you just heard.” In the opening statement, the lawyer adds the second reason why the Court should affirm the North Carolina Supreme Court’s decision: “North Carolina statutes authorized what the North Carolina Court did. All focus on the first petitioners’ idea that state legislatures created by state constitutions are independent to them is wrong. It is rejected.”
• Jackson: “Do you agree with me that the Elections Clause doesn’t take any position as to who is the entity in the state that qualifies as the legislature?” The Moore lawyer responds, “We think the dissent in Arizona [State Legislature v. Arizona Independent Redistricting Commission] was correct.” Jackson responds, “I read the Elections Clause as essentially giving the entity, whoever it is, the legislature the power to make the decision, but not taking a position as to who the legislature is.” The Moore lawyer rejects the premise of Jackson’s follow up.
• Barrett discusses the difficulty in applying different legal standards and tests to adjudicate federal election challenges; such standards might include a novelty test, whether there has been an egregious departure or the distinction between substance and procedure, noting, “Those are kind of all notoriously difficult lines to draw.” Barrett added, “Setting up the line between substance and procedure…I can tell you is a hard line to draw.”
• Kavanaugh: “Nearly all state constitutions regulate federal elections in some way and some of the early constitutions did that. What do we do with that historical practice?” The Moore lawyer points to the 2022 U.S. Supreme Court case, New York State Rifle Association & Pistol Association v. Bruen, to argue that only historical examples close to the founding are applicable. 
• Gorsuch and the Moore lawyer highlight a few instances where states defied state constitutional limits on federal elections and suggest that this allows adaptability to changing circumstances.
• Justice Neil Gorsuch asks why the Founders would have been concerned about state constitutions limiting state legislatures. The Moore lawyer points to two historical examples and a single commentary from former Justice Joseph Story.
• Kagan asks the Moore lawyer to think about the consequences of his position on checks and balances. “It would say that legislators could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution in fact prohibits. It might allow the legislatures to insert themselves and to give themselves a role in the certification of elections, and the way election results are calculated. So in all these ways, I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country.” The Moore lawyer argues that checks and balances “come from the federal Constitution and the panoply of federal laws like the Voting Rights Act,” notably a law that has been gutted in recent years by the Court.
• Sotomayor points out that many state constitutional provisions lack such specific standards. “I take your answer to mean that there are no judicially enforceable standards to interpret the freedom of speech, freedom of assembly and equal protection clauses of the [U.S.] Constitution, because they, on their face, would appear to be as unmanageable or broad and yet we routinely let federal and state courts review those acts.”
• Roberts asks the Moore lawyer about a narrower ground to decide the case. “Could you articulate exactly what you think that is?” The Moore lawyer says if the state constitution has specific standards, like a prohibition of an efficiency gap of more than 7%, that would be permissible under the U.S. Constitution and, if North Carolina had a provision like that, it would be allowed.
• Justice Brett Kavanaugh suggests that the Moore lawyer’s position goes further than Chief Justice William Rehnquist’s concurrence in Bush v. Gore (2000) and asks why courts shouldn’t defer to state court review of state law.
• The Moore lawyer says his argument doesn’t involve statutory interpretation, so Alito asks the Moore lawyer what would happen if all the provisions that the state Supreme Court relied on were statutory. The Moore lawyer suggests that if the court relied on a statute, rather than the state constitution, then that would be permissible.
• Justice Samuel Alito points out that there are always questions about the meaning of statutes enacted by the legislature to govern elections. “Isn’t it inevitable that the state courts are going to have to interpret those provisions?”
• Roberts asks the Moore lawyer about the constitutional provision that the North Carolina Supreme Court used to overturn the congressional map for gerrymandering. The Moore lawyer argues the North Carolina Supreme Court used the state constitution to “[take] legislative power” and did not use “manageable and discoverable standards” that Rucho requires.
• Jackson: “What I don’t understand is how you can cut the state constitution out of the equation when it is giving the state legislature the authority to exercise legislative power.” Jackson continues: “A legislature only gets its authority from [the state constitution].”
• Sotomayor asks the Moore lawyer a series of questions to clarify the difference between a procedural limit and a substantive limit. The Moore lawyer argues that the difference is that a substantive limit changes the contents of a map or of a law from what the legislature originally enacted.
• The Moore lawyer argues that the North Carolina Republican legislators’ position doesn’t contradict Rucho v. Common Cause, the 2019 case that held that state courts, but not federal courts, could review partisan gerrymandering claims.
• Referencing a 2015 Arizona lawsuit, Arizona State Legislature v. Arizona Independent Redistricting Commission, Kagan notes, “Nothing in the Elections Clause instructs, and this Court has never held, that a state legislature may prescribe regulations on the time, place and manner of holding federal elections in defiance of the state’s constitution.”
• Kagan suggests the Court’s precedent causes, specifically three recent cases, may present problems for the Moore lawyer’s argument. “I would think that our precedent gives you a lot of problems…In all recent cases, we’ve said, of course state courts applying state constitutions typically constrains state legislatures when they redistrict, when they enact election laws.”
• Justice Elena Kagan points out that Smiley takes the system as it existed, subject to constraints like a veto. “We take the constraint of the governor as we find it, why not the constraint of the courts?” The Moore lawyer suggests that only federal law applied by the courts constrains state legislatures. “That’s the ordinary constraint.”
• Jackson: “What procedural limitations can a state constitution impose on a legislature?” The Moore lawyer offers a governor’s veto as an example of a procedural limitation.
• The Moore lawyer argues the power to regulate federal elections is a delegation of power from the federal government. “It’s a federal function [and] there can’t be a limit on the power because it’s a federal function.”
• Barrett asks the Moore lawyer if the power to regulate elections only comes from the U.S. Constitution. “Would the baseline assumption have been that the states possess the power to regulate elections for federal office anyway? Because if so, I don’t see how it’s a delegation, as opposed to a clause that clips state authority perhaps by saying it must be exercised by the legislature and by giving Congress the power of override, but I wouldn’t describe that as a delegation if the states had the baseline power to start.”
• The Moore lawyer argues that provisions that regulate all elections in early state constitutions refer only to “offices that were created by that constitution.”
• The Moore lawyer disputes the history of state constitutions regulating elections and Sotomayor accuses the Moore lawyer of “rewriting history.”
• Justice Sonia Sotomayor points out that state constitutions have “regulated time, place, and manner” of federal elections since the founding. “There is no substantive limitation in the [U.S.] Constitution…and if there’s no substantive limitation in the Elections Clause, I don’t know how we could read one in.”
• Justice Ketanji Brown Jackson asks the Moore lawyer why a legislature isn’t a “creature of state constitutional law.” “In order for us to have a thing called the legislature, we have to look at the state constitution to determine…what that entity’s powers are, how they can be exercised.”
• The Moore lawyer: “We certainly have tried to craft an argument that is consistent with all of the Court’s precedents. But we think that there are good reasons why there would be a substantive limitation even if not a procedural limitation.”
• Justice Amy Coney Barrett asks the Moore lawyer if their formalistic test “is just a way of trying to deal with our precedent or are you rooting that in the [U.S.] Constitution itself because you do have a problem with explaining why these procedural limitations are okay, but substantive limitations are not?”
• Roberts: “Why do you say it’s procedural?” The Moore lawyer, in response to Roberts’ question, states they are proposing a formalistic test to determine if a limit is procedural or substantive.
• The Moore lawyer argues that a gubernatorial veto is a procedural limit, not a substantive limit. Substantive law establishes the rights and obligations that govern people and organizations; it includes all laws of general and specific applicability. Procedural law establishes the legal rules by which substantive law is created, applied and enforced.
• Chief Justice John Roberts points out that a governor is not part of the legislature, yet can still wield a veto over federal election law. Roberts suggests a 1932 Supreme Court case, Smiley v. Holm, undermines the Moore lawyer’s argument.
• The Moore lawyer states that the case is about the Elections Clause.
• Justice Clarence Thomas asks the Moore lawyer to clarify the decision the court is reviewing. Thomas points out that the U.S. Supreme Court normally doesn’t review state Supreme Court interpretations of state constitutions. “What is the jurisdiction for this case?”
• The Moore lawyer begins his opening statement, stating that “states lack the authority to restrict the legislature’s substantive discretion” when regulating federal elections. “It is federal law alone that places substantive restrictions on states’ legislatures performing the task assigned to them by the federal constitution.”
• Oral argument begins.