NOTICE: This opinion is subject to
formal revision before publication in the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal
errors.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1271
_________________
TIMOTHY K. MOORE, in his official capacity as
SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES,
et al., PETITIONERS
v. REBECCA HARPER, et al.
on writ of certiorari to the supreme court of
north carolina
[June 27, 2023]
Chief Justice Roberts delivered the opinion of
the Court.
Several groups of plaintiffs challenged North
Carolina’s congressional districting map as an impermissible
partisan gerrymander. The plaintiffs brought claims under North
Carolina’s Constitution, which provides that “[a]ll elections shall
be free.” Art. I, §10. Relying on that provision, as well as the
State Constitution’s equal protection, free speech, and free
assembly clauses, the North Carolina Supreme Court found in favor
of the plaintiffs and struck down the legislature’s map. The Court
concluded that North Carolina’s Legislature deliberately drew the
State’s congressional map to favor Republican candidates.
In drawing the State’s congressional map, North
Carolina’s Legislature exercised authority under the Elections
Clause of the Federal Constitution, which expressly requires “the
Legislature” of each State to prescribe “[t]he Times, Places and
Manner of ” federal elections. Art. I, §4, cl. 1. We
decide today whether that Clause vests state legislatures with
authority to set rules governing federal elections free from
restrictions imposed under state law.
I
The Elections Clause provides: “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.”
Ibid. The Clause “imposes” on state legislatures
the “duty” to prescribe rules governing federal elections.
Arizona v.
Inter Tribal Council of Ariz., Inc.,
570 U.S.
1, 8 (2013). It also guards “against the possibility that a
State would refuse to provide for the election of representatives”
by authorizing Congress to prescribe its own rules.
Ibid.
A
The 2020 decennial census showed that North
Carolina’s population had increased by nearly one million people,
entitling the State to an additional seat in its federal
congressional delegation. U. S. Census Bureau, 2020 Census
Apportionment Results (2021) (Table A). Following those results,
North Carolina’s General Assembly set out to redraw the State’s
congressional districts.
North Carolina League of Conservation
Voters, Inc. v.
Representative Destin Hall, 21 CVS
015426 etc. (Super. Ct. Wake Cty., N. C., Dec. 3, 2021), App.
to Pet. for Cert. 260a–261a, rev’d and remanded on other grounds,
Harper v.
Hall, 380 N. C. 317, 868 S.E.2d 499
(2022) (
Harper I ). The General Assembly also drafted
new maps for the State’s legislative districts, including the State
House and the State Senate.
Id., at 328–329, 868 S. E.
2d, at 513. In November 2021, the Assembly enacted three new maps,
each passed along party lines.
Id., at 329, 868 S. E.
2d, at 513; see N. C. Gen. Stat. Ann. §120–1 (2021) (State
Senate); §120–2 (State House); §163–201 (U. S. House of
Representatives).
Shortly after the new maps became law, several
groups of plaintiffs—including the North Carolina League of
Conservation Voters, Common Cause, and individual voters—sued in
state court. The plaintiffs asserted that each map constituted an
impermissible partisan gerrymander in violation of the North
Carolina Constitution.
Harper I, 380 N. C., at 329–330,
868 S. E. 2d, at 513–514.[
1] At trial before a three-judge panel of the Wake County
Superior Court, the plaintiffs presented expert testimony and other
evidence to support their claims that North Carolina’s General
Assembly drew state legislative and federal congressional maps to
favor Republican candidates.
Id., at 332, 868 S. E. 2d,
at 515. The trial court agreed, finding that the General Assembly’s
2021 congressional districting map was “a partisan outlier
intentionally and carefully designed to maximize Republican
advantage in North Carolina’s Con- gressional delegation.”
Id., at 345, 868 S. E. 2d, at 522 (internal quotation
marks omitted). But the court denied relief, reasoning that the
partisan gerrymandering claims “amounted to political questions
that are nonjusticiable under the North Carolina Constitution.”
Id., at 348, 868 S. E. 2d, at 524.
The North Carolina Supreme Court reversed,
holding that the legislative defendants violated state law “beyond
a reasonable doubt” by enacting maps that constituted partisan
gerrymanders.
Id., at 353, 868 S. E. 2d, at 528. It
also rejected the trial court’s conclusion that partisan
gerrymandering claims present a nonjusticiable political question.
Ibid. The Court acknowledged our decision in
Rucho v.
Common Cause, which held “that partisan gerrymandering
claims present political questions beyond the reach of the federal
courts.” 588 U. S. ___, ___ (2019) (slip op., at 30); see
Harper I, 380 N. C., at 360–361, 868 S. E. 2d, at
532–533. But “simply because the Supreme Court has concluded
partisan gerrymandering claims are nonjusticiable in federal
courts,” the court explained, “it does not follow that they are
nonjusticiable in North Carolina courts.”
Id., at 361, 868
S. E. 2d, at 533. The State Supreme Court also rejected the
argument that the Elections Clause in the Federal Constitution
vests exclusive and independent authority in state legislatures to
draw congressional maps.
Id., at 390–391, 868 S. E. 2d,
at 551–552.
After holding that the 2021 districting maps
“substantially infringe upon plaintiffs’ fundamental right to equal
voting power,” the Court struck down the maps and remanded the case
to the trial “court to oversee the redrawing of the maps by the
General Assembly or, if necessary, by the court.”
Id., at
403, 868 S. E. 2d, at 559. The Court entered judgment on
February 15, 2022.
Harper v.
Hall, No. 413PA21,
App. to Pet. for Cert. 306–309. Two days later, the General
Assembly adopted a remedial congressional redistricting plan. See
2022 N. C. Sess. Laws p. 3, §2. But the trial court rejected
that plan and adopted in its place interim maps developed by
several Special Masters for use in the 2022 North Carolina
congressional elections.
North Carolina League of Conservation
Voters, Inc. v.
Representative Destin Hall, 21 CVS
015426 etc. (Super. Ct. Wake Cty., N. C., Feb. 23, 2022), App.
to Pet. for Cert. 278a–279a, aff ’d in part, rev’d in part,
and remanded,
Harper v.
Hall, 383 N. C. 89, 881
S.E.2d 156 (2022) (
Harper II ).
On February 25, 2022, the legislative defendants
filed an emergency application in this Court, citing the Elections
Clause and requesting a stay of the North Carolina Supreme Court’s
decision. We declined to issue emergency relief but later granted
certiorari. 597 U. S. ___ (2022).
B
Following our grant of certiorari, the North
Carolina Supreme Court heard an appeal concerning the trial court’s
remedial order. In December 2022, the Court issued a decision
affirming in part, reversing in part, and remanding the case. As
relevant, it agreed with the trial court’s determination that the
General Assembly’s remedial congressional plan “fell short” of the
requirements set forth in
Harper I.
Harper II, 383
N. C., at 125, 881 S. E. 2d, at 181.
The legislative defendants sought rehearing,
requesting that the North Carolina Supreme Court “withdraw” its
remedial opinion in
Harper II. Pet. for Rehearing in
Harper v.
Hall, No. 413PA21, p. 25 (Jan.
20, 2023) (Pet. for Rehearing). They also asked the Court to
“overrule” its decision in
Harper I, although they conceded
that doing so would not “negate the force of its order striking
down the 2021 plans.” Pet. for Rehearing 24. The North Carolina
Supreme Court granted rehearing in
Harper II, and we ordered
the parties to submit supplemental briefing concerning our
jurisdiction over this case in light of that decision.
Following the parties’ submission of
supplemental briefs in this Court, the North Carolina Supreme Court
issued a decision granting the requests made by the legislative
defendants. The Court withdrew its opinion in
Harper II,
concerning the remedial maps, and “overruled” its decision in
Harper I. See
Harper v.
Hall, ___ N. C.
___, 886 S.E.2d 393 (2023). Relying on our decision in
Rucho
and on a renewed look at the constitutional provisions at issue,
the Court repudiated
Harper I ’s conclusion that
partisan gerrymandering claims are justiciable under the North
Carolina Constitution. See ___ N. C., at ___, 886 S. E.
2d, at 431.
The North Carolina Supreme Court dismissed the
plaintiffs’ claims with prejudice.
Id., at ___, 886
S. E. 2d, at 401. But it did not reinstate the 2021
congressional plans that
Harper I had struck down under the
North Carolina Constitution. ___ N. C., at ___, 886 S. E.
2d, at 446–448. Instead, the Court provided the General Assembly
with the “opportunity to enact a new set of legislative and
congressional redistricting plans, guided by federal law, the
objective constraints in Article II, Sections 3 and 5 [of the North
Carolina Constitution], and this opinion.”
Id., at ___, 886
S. E. 2d, at 448. The Court did not revisit
Harper
I ’s conclusion that the Federal Elections Clause does not
shield state legislatures from review by state courts for
compliance with state constitutional provisions. ___ N. C., at
___, 886 S. E. 2d, at 422 (“The General Assembly exercises
[redistricting] authority subject to the express limitations in our
constitution and in federal law.”). We invited the parties to
submit additional supplemental briefs addressing the effect of the
Court’s decision on our jurisdiction.
II
Before turning to the merits, we must
“determine as a threshold matter that we have jurisdiction.”
Goodyear Atomic Corp. v.
Miller,
486 U.S.
174, 178 (1988). The Constitution provides for our jurisdiction
over “Cases” and “Controversies.” Art. III, §2. That
constitutional requirement ensures that the parties before us
retain a “personal stake” in the litigation.
Baker v.
Carr,
369 U.S.
186, 204 (1962). As “[a] corollary to this case-or-controversy
requirement,” there must exist a dispute “at all stages of review,
not merely at the time the complaint is filed.”
Genesis
HealthCare Corp. v.
Symczyk,
569 U.S.
66, 71 (2013) (internal quotation marks omitted). Mootness
doctrine “addresses whether an intervening circumstance has
deprived the plaintiff of a personal stake in the outcome of the
lawsuit.”
West Virginia v.
EPA, 597 U. S. ___,
___ (2022) (slip op., at 15) (alterations and internal quotation
marks omitted).
The North Carolina Supreme Court’s decision to
withdraw
Harper II and overrule
Harper I does not
moot this case. The plaintiffs here sought to enjoin the use of the
2021 plans enacted by the legislative defendants.
Harper I
granted that relief, and in doing so rejected the Elections Clause
defense at issue before us. 380 N. C., at 403, 868 S. E.
2d, at 559. Prior to both the appeal and rehearing proceedings in
Harper II, the North Carolina Supreme Court had already
entered the judgment and issued the mandate in
Harper I. See
App. to Pet. for Cert. 306–309. And the time during which the
defendants could seek rehearing as to that judgment had long since
passed. See N. C. Rule App. Proc. 31(a) (2023) (requiring
that a rehearing petition be brought within 15 days of the issuance
of the mandate). Recognizing this reality, the legislative
defendants did not ask the North Carolina Supreme Court to disturb
the judgment in
Harper I as part of the rehearing
proceedings. They instead acknowledged that they would remain bound
by
Harper I ’s decision enjoining the use of the 2021
plans. See Pet. for Rehearing 24 (“[O]verruling
Harper I
will not negate the force of its order striking down the 2021
plans.”).
The North Carolina Supreme Court “overruled”
Harper I, thereby granting the specific relief requested by
the legislative defendants. As a result, partisan gerrymandering
claims are no longer justiciable under the State’s Constitution.
Harper, ___ N. C., at ___, 886 S. E. 2d, at 449.
But although the defendants may now draw new congressional maps,
they agree that the North Carolina Supreme Court overruled only the
“
reasoning of
Harper I ” and did not
“disturb . . . its judgment
nor . . . alter the presently operative
statutes of North Carolina.” Second Supp. Letter Brief for
Petitioners 3. In other words, although partisan gerrymandering
claims are no longer viable under the North Carolina Constitution,
the North Carolina Supreme Court has done nothing to alter the
effect of the judgment in
Harper I enjoining the use of the
2021 maps. As a result, the legislative defendants’ path to
complete relief runs through this Court. Were we to reverse the
judgment in
Harper I—a step not taken by the North Carolina
Supreme Court—the 2021 plans enacted by the legislative defendants
would again take effect. The parties accordingly continue to have a
“personal stake in the ultimate disposition of the lawsuit.”
Chafin v.
Chafin,
568 U.S.
165, 172 (2013) (internal quotation marks omitted).
A North Carolina statute with specific
application to this proceeding confirms that the controversy before
us remains live. Under state law, if “the United States Supreme
Court . . . reverses” the decision in
Harper
I, the 2021 maps will again become “effective.” 2022 N. C.
Sess. Laws p. 10, §2. We have previously found such trigger
provisions—in North Carolina, no less—sufficient to avoid mootness
under Article III. See
Hunt v.
Cromartie,
526 U.S.
541, 546, n. 1 (1999) (“Because the State’s 1998 law
provides that the State will revert to the 1997 districting plan
upon a favorable decision of this
Court . . . this case is not moot.”).
We also have jurisdiction to review the judgment
in
Harper I under 28 U. S. C. §1257(a). That
statute provides for this Court’s exercise of jurisdiction over
“[f]inal judgments or decrees rendered by the highest court of a
State in which a decision could be had.”
Ibid. We have,
however, “recurringly encountered situations in which the highest
court of a State has finally determined the federal issue present
in a particular case, but in which there are further proceedings in
the lower state courts to come.”
Cox Broadcasting Corp. v.
Cohn,
420 U.S.
469, 477 (1975).
Cox Broadcasting delineated “at least
four categories of such cases in which the Court has treated the
decision on the federal issue as a final judgment for the purposes
of 28 U. S. C. §1257,” despite “additional proceedings
anticipated in the lower state courts.”
Ibid. As relevant,
the second category includes those
“cases . . . in which the federal issue,
finally decided by the highest court in the State, will survive and
require decision regardless of the outcome of future statecourt
proceedings.”
Id., at 480.
Harper I fits within this second category
of cases described in
Cox Broadcasting. By striking down the
2021 congressional plans enacted by the General Assembly,
Harper
I “finally decided” the “federal issue” whether the Elections
Clause insulates state legislatures from review by state courts for
compliance with state law. See 380 N. C., at 390–391, 868
S. E. 2d, at 551–552. That issue both has survived and
requires decision because subsequent proceedings have neither
altered
Harper I ’s analysis of the federal issue nor
negated the effect of its judgment striking down the 2021 plans. In
its decision “overruling”
Harper I, the North Carolina
Supreme Court in fact reaffirmed that it retains the authority to
review congressional districting plans for compliance with state
law.
Harper, ___ N. C., at ___, 886 S. E. 2d, at
422.
That the North Carolina Supreme Court overruled
Harper I does not affect the judgment in that case for
purposes of §1257(a). “[T]he res judicata consequences of a final,
unappealed judgment on the merits” are not “altered by the fact
that the judgment may have been wrong or rested on a legal
principle subsequently overruled in another case.”
Federated
Department Stores, Inc. v.
Moitie,
452 U.S.
394, 398 (1981). The North Carolina Supreme Court has said much
the same.
East Carolina Lumber Co. v.
West, 247
N. C. 699, 701, 102 S. E. 2d, 248, 249 (1958) (“An
erroneous or irregular judgment binds the parties thereto until
corrected in a proper manner.”). That Court did not purport to
alter or amend in any way the judgment in
Harper I. In
short, the record before us shows that
Harper I “finally
decided” the Elections Clause issue, which has survived subsequent
proceedings in the North Carolina Supreme Court such that it
continues to “require decision” by this Court.
Cox
Broadcasting, 420 U. S., at 480.
Justice Thomas sees it differently. He correctly
observes that the North Carolina Supreme Court has now dismissed
the plaintiffs’ claims with prejudice. He posits, therefore, that
the legislative defendants “are not injured by the judgment of
Harper I.”
Post, at 5 (dissenting opinion). But the
record before us belies that notion.
Harper I enjoined the
use of the 2021 maps in subsequent elections in North Carolina.
Well after the time for seeking rehearing as to that judgment
passed, the legislative defendants instead sought rehearing with
respect to
Harper II, a distinct decision concerning
remedies. The defendants steadfastly maintained in rehearing
proceedings before the North Carolina Supreme Court that
“overruling
Harper I [would] not negate the force of its
order striking down the 2021 plans.” Pet. for Rehearing 24; see
also Legislative Defendants’ Supp. Brief on Rehearing in
Harper v.
Hall, No. 413PA21–2, p. 56
(N. C., Feb. 17, 2023) (“[T]he Court’s dictate that the 2021
plans may not be used ‘in any future elections’ would not be
vacated.”). With those concessions on the record, the North
Carolina Supreme Court issued its decision “overruling”
Harper
I, and—by contrast—“withdraw[ing]” its decision in
Harper
II.
Harper, ___ N. C., at ___, 886 S. E. 2d,
at 449. And mirroring their representations before the North
Carolina Supreme Court, the legislative defendants now maintain in
this Court that they continue to remain bound by the judgment in
Harper I.
In an effort to cast doubt on these consistent
representations by the injured party before us, Justice Thomas
contends that the legislative defendants have already received
complete relief because nothing now prevents the implementation of
the 2021 maps.
Post, at 15 (dissenting opinion). For the
reasons stated above, that would come as a surprise to both the
legislative defendants and the North Carolina Supreme Court. The
dissent also emphasizes that several of the plaintiffs contest our
jurisdiction.
Post, at 6. But that has been their position
from the very beginning, and it did not prevent our granting
certiorari. The concessions offered by the legislative defendants
as part of the rehearing proceedings, the recent opinion issued by
the North Carolina Supreme Court, and the legislative defendants’
briefing in this Court all tell the same story:
Harper I
continues to enjoin the use of the 2021 maps. Following the
dissent’s logic and dismissing this case as moot would foreclose
the one path to full relief available to the legislative
defendants: A decision by this Court reversing the judgment in
Harper I.
This Court has before it a judgment issued by a
State’s highest court that adjudicates a federal constitutional
issue. The defendants did not ask the North Carolina Supreme Court
to vacate that judgment, that court did not purport to do so, and
the defendants now concede that they remain bound by it.
Cox
Broadcasting considered our exercise of jurisdiction where the
“federal issue . . . will survive and require
decision regardless of the outcome of future state-court
proceedings.” 420 U. S., at 480. Unlike cases in which we must
anticipate what the future might hold, we now know the resolution
of the anticipated state court proceedings. The record shows that
Harper I finally decided the Elections Clause question, the
judgment in that case continues to bind the parties before us, and
the 2021 congressional maps would again take effect in North
Carolina were we to reverse. Accordingly, we have jurisdiction
under both Article III and §1257(a).
III
The question on the merits is whether the
Elections Clause insulates state legislatures from review by state
courts for compliance with state law.
Since early in our Nation’s history, courts have
recognized their duty to evaluate the constitutionality of
legislative acts. We announced our responsibility to review laws
that are alleged to violate the Federal Constitution in
Marbury v.
Madison, proclaiming that “[i]t is
emphatically the province and duty of the judicial department to
say what the law is.” 1 Cranch 137, 177 (1803).
Marbury
confronted and rejected the argument that Congress may exceed
constitutional limits on the exercise of its authority. “Certainly
all those who have framed written constitutions,” we reasoned,
“contemplate them as forming the fundamental and paramount law of
the nation, and consequently the theory of every such government
must be, that an act of the legislature, repugnant to the
constitution, is void.”
Ibid.
Marbury proclaimed our authority to
invalidate laws that violate the Federal Constitution, but it did
not fashion this concept out of whole cloth. Before the
Constitutional Convention convened in the summer of 1787, a number
of state courts had already moved “in isolated but important cases
to impose restraints on what the legislatures were enacting as
law.” G. Wood, The Creation of the American Republic 1776–1787,
pp. 454–455 (1969). Although judicial review emerged
cautiously, it matured throughout the founding era. These state
court decisions provided a model for James Madison, Alexander
Hamilton, and others who would later defend the principle of
judicial review.
In the 1786 case
Trevett v.
Weeden, for example, lawyer James Varnum challenged a Rhode
Island statute on the ground that it failed to provide the right to
a jury trial. Although Rhode Island lacked a written constitution,
Varnum argued that the State nevertheless had a constitution
reflecting the basic historical rights of the English. And, he
contended, the courts must honor “the principles of the
constitution in preference to any acts of the General Assembly.” J.
Varnum,
The Case, Trevett
v. Weeden, reprinted in 1
B. Schwartz, The Bill of Rights: A Documentary History 424 (1971).
Varnum won, to the dismay of the State’s legislature, which
replaced four of the five judges involved. W. Treanor, Judicial
Review Before
Marbury, 58 Stan. L. Rev. 455, 478
(2005). His arguments were published as a pamphlet, which “may well
have been the most prominent discussion of judicial review at the
time of the Philadelphia Constitutional Convention.”
Id., at
477.
The North Carolina Supreme Court played its own
part in establishing judicial review. In
Bayard v.
Singleton, the court considered the constitutionality of a
1785 Act by the State’s General Assembly that prevented British
loyalists from challenging property seizures before a jury. 1 Mort.
48 (1787). The court held the Act “abrogated and without any
effect,” for “it was clear” that the legislature could not pass an
Act that “could by any means repeal or alter the constitution.”
Id., at 50. Otherwise, the legislature “would at the same
instant of time, destroy their own existence as a Legislature, and
dissolve the government thereby established.”
Ibid. James
Iredell, who would later serve as an inaugural Justice of this
Court, penned at the time an open letter “To the Public” expounding
a robust concept of judicial review. 2 Life and Correspondence of
James Iredell 145 (1846). “[T]he power of the Assembly,” he wrote,
“is limited and defined by the constitution.”
Id., at 146.
The legislature, after all, “is a
creature of the
constitution.”
Ibid.
North Carolina and Rhode Island did not stand
alone. See,
e.g.,
Holmes v.
Walton (N. J.
1780), described in A. Scott,
Holmes vs.
Walton: The
New Jersey Precedent, 4 Am. Hist. Rev. 456 (1899);
State v.
Parkhurst, 9 N. J. L. 427, 444 (1802) (citing
Holmes as holding that a statute providing for a six-person
jury was “unconstitutional”). All told, “[s]tate courts in at least
seven states invalidated state or local laws under their State
constitutions before 1787,” which “laid the foundation for judicial
review.” J. Sutton, 51 Imperfect Solutions 13 (2018).
The Framers recognized state decisions
exercising judicial review at the Constitutional Convention of
1787. On July 17, James Madison spoke in favor of a federal council
of revision that could negate laws passed by the States. He lauded
the Rhode Island judges “who refused to execute an unconstitutional
law,” lamenting that the State’s legislature then “displaced” them
to substitute others “who would be willing instruments of the
wicked & arbitrary plans of their masters.” 2 Records of the
Federal Convention of 1787, p. 28 (M. Farrand ed. 1911). A
week later, Madison extolled as one of the key virtues of a
constitutional system that “[a] law violating a constitution
established by the people themselves, would be considered by the
Judges as null & void.”
Id., at 93. Elbridge Gerry, a
delegate from Massachusetts, also spoke in favor of judicial
review. (Known for drawing a contorted legislative district that
looked like a salamander, Gerry later became the namesake for the
“gerrymander.”) At the Convention, he noted that “[i]n some States
the Judges had [actually] set aside laws as being agst. the
Constitution.” 1
id., at 97 (alteration in original by James
Madison). Such judicial review, he noted, was met “with general
approbation.”
Ibid.
Writings in defense of the proposed Constitution
echoed these comments. In the Federalist Papers, Alexander Hamilton
maintained that “courts of justice” have the “duty . . .
to declare all acts contrary to the manifest tenor of the
Constitution void.” The Federalist No. 78, p. 466 (C. Rossiter ed.
1961). “[T]his doctrine” of judicial review, he also wrote, was
“equally applicable to most if not all the State governments.”
Id., No. 81, at 482.
State cases, debates at the Convention, and
writings defending the Constitution all advanced the concept of
judicial review. And in the years immediately following
ratification, courts grew assured of their power to void laws
incompatible with constitutional provisions. See Treanor, 58 Stan.
L. Rev., at 473, 497–498. The idea that courts may review
legislative action was so “long and well established” by the time
we decided
Marbury in 1803 that Chief Justice Marshall
referred to judicial review as “one of the fundamental principles
of our society.” 1 Cranch, at 176–177.
IV
We are asked to decide whether the Elections
Clause carves out an exception to this basic principle. We hold
that it does not. The Elections Clause does not insulate state
legislatures from the ordinary exercise of state judicial
review.
A
We first considered the interplay between
state constitutional provisions and a state legislature’s exercise
of authority under the Elections Clause in
Ohio ex rel.
Davis v.
Hildebrant,
241 U.S.
565 (1916). There, we examined the application to the Elections
Clause of a provision of the Ohio Constitution permitting the
State’s voters “to approve or disapprove by popular vote any law
enacted by the General Assembly.”
Id., at 566. In 1915, the
Ohio General Assembly drew new congressional districts, which the
State’s voters then rejected through such a popular referendum.
Asked to disregard the referendum, the Ohio Supreme Court refused,
explaining that the Elections Clause—while “conferring the power
therein defined upon the various state legislatures”—did not
preclude subjecting legislative Acts under the Clause to “a popular
vote.”
State ex rel. Davis v.
Hildebrant, 94
Ohio St. 154, 163, 114 N.E. 55, 58 (1916).
We unanimously affirmed, rejecting as “plainly
without substance” the contention that “to include the referendum
within state legislative power for the purpose of apportionment is
repugnant to §4 of Article I [the Elections Clause].”
Hildebrant, 241 U. S., at 569; see also
Hawke v.
Smith,
253 U.S.
221, 230–231 (1920) (describing
Hildebrant as holding
that “the referendum provision of the state constitution when
applied to a law redistricting the State with a view to
representation in Congress was not unconstitutional”).
Smiley v.
Holm, decided 16 years
after
Hildebrant, considered the effect of a Governor’s veto
of a state redistricting plan.
285 U.S.
355, 361 (1932). Following the 15th decennial census in 1930,
Minnesota lost one seat in its federal congressional delegation.
The State’s legislature divided Minnesota’s then nine congressional
districts in 1931 and sent its Act to the Governor for his
approval. The Governor vetoed the plan pursuant to his authority
under the State’s Constitution. But the Minnesota Secretary of
State nevertheless began to implement the legislature’s map for
upcoming elections. A citizen sued, contending that the
legislature’s map “was a nullity in that, after the Governor’s
veto, it was not repassed by the legislature as required by law.”
Id., at 362. The Minnesota Supreme Court disagreed. In its
view, “the authority so given by” the Elections Clause “is
unrestricted, unlimited, and absolute.”
State ex rel.
Smiley v.
Holm, 184 Minn. 228, 242, 238 N.W. 494, 501
(1931). The Elections Clause, it held, conferred upon the
legislature “the exclusive right to redistrict” such that its
actions were “beyond the reach of the judiciary.”
Id., at
243, 238 N. W., at 501.
We unanimously reversed. A state legislature’s
“exercise of . . . authority” under the Elections Clause,
we held, “must be in accordance with the method which the State has
prescribed for legislative enactments.”
Smiley, 285
U. S., at 367. Nowhere in the Federal Constitution could we
find “provision of an attempt to endow the legislature of the State
with power to enact laws in any manner other than that in which the
constitution of the State has provided that laws shall be enacted.”
Id., at 368.
Smiley relied on founding-era provisions,
constitutional structure, and historical practice, each of which we
found persuasive. Two States at the time of the founding provided a
veto power, restrictions that were “well known.”
Ibid.
(citing provisions in Massachusetts and New York). Subjecting state
legislatures to such a limitation “was no more incongruous with the
grant of legislative authority to regulate congressional elections
than the fact that the Congress in making its regulations under the
same provision would be subject to the veto power of the
President.”
Ibid.; see also
Wesberry v.
Sanders,
376 U.S.
1, 6 (1964) (Congress does not have “exclusive authority” under
the Elections Clause, independent of other federal constitutional
provisions). And “long and continuous interpretation” as evidenced
by “the established practice in the states” provided further
support.
Smiley, 285 U. S., at 369. We noted that many
state constitutions had adopted provisions allowing for executive
vetoes, “and that the uniform practice . . . has been to
provide for congressional districts by the enactment of statutes
with the participation of the Governor wherever the state
constitution provided for such participation.”
Id., at
370.
This Court recently reinforced the teachings of
Hildebrant and
Smiley in a case considering the
constitutionality of an Arizona ballot initiative. Voters “amended
Arizona’s Constitution to remove redistricting authority from the
Arizona Legislature and vest that authority in an independent
commission.”
Arizona State Legislature v.
Arizona
Independent Redistricting Comm’n, 576 U.S. 787, 792 (2015). The
Arizona Legislature challenged a congressional map adopted by the
commission, arguing that the Elections “Clause precludes resort to
an independent commission . . . to accomplish
redistricting.”
Ibid. A divided Court rejected that
argument. The majority reasoned that dictionaries of “the founding
era . . . capaciously define[d] the word
‘legislature,’ ”
id., at 813–814, and concluded that
the people of Arizona retained the authority to create “an
alternative legislative process” by vesting the lawmaking power of
redistricting in an independent commission,
id., at 817. The
Court ruled, in short, that although the Elections Clause expressly
refers to the “Legislature,” it does not preclude a State from
vesting congressional redistricting authority in a body other than
the elected group of officials who ordinarily exercise lawmaking
power. States, the Court explained, “retain autonomy to establish
their own governmental processes.”
Id., at 816.
The significant point for present purposes is
that the Court in
Arizona State Legislature recognized that
whatever authority was responsible for redistricting, that entity
remained subject to constraints set forth in the State
Constitution. The Court embraced the core principle espoused in
Hildebrant and
Smiley “that redistricting is a
legislative function, to be performed in accordance with the
State’s prescriptions for lawmaking, which may include the
referendum and the Governor’s veto.” 576 U. S., at 808; see
also
id., at 840–841 (Roberts, C. J., dissenting)
(recognizing that
Hildebrant and
Smiley support the
imposition of “some constraints on the legislature”). The Court
dismissed the argument that the Elections Clause divests state
constitutions of the power to enforce checks against the exercise
of legislative power: “Nothing in [the Elections] Clause instructs,
nor has this Court ever held, that a state legislature may
prescribe regulations on the time, place, and manner of holding
federal elections in defiance of provisions of the State’s
constitution.” 576 U. S., at 817–818 (majority opinion).
The reasoning we unanimously embraced in
Smiley commands our continued respect: A state legislature
may not “create congressional districts independently of ”
requirements imposed “by the state constitution with respect to the
enactment of laws.” 285 U. S., at 373.
B
The legislative defendants and the dissent
both contend that, because the Federal Constitution gives state
legislatures the power to regulate congressional elections, only
that Constitution can restrain the exercise of that power.
Brief for Petitioners 22;
post, at 17 (opinion of Thomas,
J.). The legislative defendants cite for support Federalist
No. 78, which explains that the wielding of legislative power
is constrained by “the tenor of the commission under which it is
exercised.” The Federalist No. 78, at 466; see Tr. of Oral Arg.
4.
This argument simply ignores the precedent just
described.
Hildebrant,
Smiley, and
Arizona State
Legislature each rejected the contention that the Elections
Clause vests state legislatures with exclusive and independent
authority when setting the rules governing federal elections.
The argument advanced by the defendants and the
dissent also does not account for the Framers’ understanding that
when legislatures make laws, they are bound by the provisions of
the very documents that give them life. Legislatures, the Framers
recognized, “are the mere creatures of the State Constitutions, and
cannot be greater than their creators.” 2 Farrand 88. “What are
Legislatures? Creatures of the Constitution; they owe their
existence to the Constitution: they derive their powers from the
Constitution: It is their commission; and, therefore, all their
acts must be conformable to it, or else they will be void.”
Vanhorne’s Lessee v.
Dorrance, 2 Dall. 304, 308 (Pa.
1795).
Marbury confirmed this understanding, 1 Cranch, at
176–177, and nothing in the text of the Elections Clause undermines
it. When a state legislature carries out its constitutional power
to prescribe rules regulating federal elections, the “commission
under which” it exercises authority is two-fold. The Federalist No.
78, at 467. The legislature acts both as a lawmaking body created
and bound by its state constitution, and as the entity assigned
particular authority by the Federal Constitution. Both
constitutions restrain the legislature’s exercise of power.
Turning to our precedents, the defendants quote
from our analysis of the Electors Clause in
McPherson v.
Blacker,
146 U.S. 1
(1892). That Clause—similar to the Elections Clause—provides that
“Each State shall appoint, in such Manner as the Legislature
thereof may direct, a [specified] Number of Electors.”
Art. II, §1, cl. 2.
McPherson considered a
challenge to the Michigan Legislature’s decision to allocate the
State’s electoral votes among the individual congressional
districts, rather than to the State as a whole. We upheld that
decision, explaining that in choosing Presidential electors, the
Clause “leaves it to the legislature exclusively to define the
method of effecting the object.” 146 U. S., at 27.
Our decision in
McPherson, however, had
nothing to do with any conflict between provisions of the Michigan
Constitution and action by the State’s legislature—the issue we
confront today.
McPherson instead considered whether
Michigan’s Legislature itself directly violated the Electors Clause
(by taking from the “State” the power to appoint and vesting that
power in separate districts), the Fourteenth Amendment (by allowing
voters to vote for only one Elector rather than “Electors”), and a
particular federal statute.
Id., at 8–9 (argument for
plaintiffs in error). Nor does the quote highlighted by petitioners
tell the whole story. Chief Justice Fuller’s opinion for the Court
explained that “[t]he legislative power is the supreme authority
except as limited by the constitution of the State.”
Id., at 25 (emphasis added); see also
ibid. (“What is
forbidden or required to be done by a State is forbidden or
required of the legislative power under state constitutions as they
exist.”).
The legislative defendants and Justice Thomas
rely as well on our decision in
Leser v.
Garnett,
258 U.S.
130 (1922), but it too offers little support. See
post,
at 17, 20–21.
Leser addressed an argument that the
Nineteenth Amendment—providing women the right to vote—was invalid
because state constitutional provisions “render[ed] inoperative the
alleged ratifications by their legislatures.” 258 U. S., at
137. We rejected that position, holding that when state
legislatures ratify amendments to the Constitution, they carry out
“a federal function derived from the Federal Constitution,” which
“transcends any limitations sought to be imposed by the people of a
State.”
Ibid.
But the legislature in
Leser performed a
ratifying function rather than engaging in traditional lawmaking.
The provisions at issue in today’s case—like the provisions
examined in
Hildebrant and
Smiley—concern a state
legislature’s exercise of lawmaking power. And as we held in
Smiley, when state legislatures act pursuant to their
Elections Clause authority, they engage in lawmaking subject to the
typical constraints on the exercise of such power. 285 U. S.,
at 367. We have already distinguished
Leser on those
grounds.
Smiley, 285 U. S., at 365–366. In addition,
Leser cited for support our decision in
Hawke v.
Smith, which sharply separated ratification “from
legislative action” under the Elections Clause. 253 U. S., at
228. Lawmaking under the Elections Clause,
Hawke explained,
“is entirely different from the requirement of the Constitution as
to the expression of assent or dissent to a proposed amendment to
the Constitution.”
Id., at 231.
Hawke and
Smiley delineated the
various roles that the Constitution assigns to state legislatures.
Legislatures act as “Consent[ing]” bodies when the Nation purchases
land, Art. I, §8, cl. 17; as “Ratif[ying]” bodies when they agree
to proposed Constitutional amendments, Art. V; and—prior to
the passage of the Seventeenth Amendment—as “electoral” bodies when
they choose United States Senators,
Smiley, 285 U. S.,
at 365; see also Art. I, §3, cl. 1; Amdt. 17 (providing for
the direct election of Senators).
By fulfilling their constitutional duty to craft
the rules governing federal elections, state legislatures do not
consent, ratify, or elect—they make laws. Elections are complex
affairs, demanding rules that dictate everything from the date on
which voters will go to the polls to the dimensions and font of
individual ballots. Legislatures must “provide a complete code for
congressional elections,” including regulations “relati[ng] to
notices, registration, supervision of voting, protection of voters,
prevention of fraud and corrupt practices, counting of votes,
duties of inspectors and canvassers, and making and publication of
election returns.”
Smiley, 285 U. S., at 366. In
contrast, a simple up-or-down vote suffices to ratify an amendment
to the Constitution. Providing consent to the purchase of land or
electing Senators involves similarly straightforward exercises of
authority. But fashioning regulations governing federal elections
“unquestionably calls for the exercise of lawmaking authority.”
Arizona State Legislature, 576 U. S., at 808,
n. 17. And the exercise of such authority in the context of
the Elections Clause is subject to the ordinary constraints on
lawmaking in the state constitution.
In sum, our precedents have long rejected the
view that legislative action under the Elections Clause is purely
federal in character, governed only by restraints found in the
Federal Constitution.
C
Addressing our decisions in
Smiley and
Hildebrant, both the legislative defendants and Justice
Thomas concede that at least some state constitutional provisions
can restrain a state legislature’s exercise of authority under the
Elections Clause. But they read those cases to differentiate
between procedural and substantive constraints. Brief for
Petitioners 24;
post, at 21–22 (opinion of Thomas, J.).
Smiley, in their view, stands for the proposition that state
constitutions may impose only procedural hoops through which
legislatures must jump in crafting rules governing federal
elections. This concededly “formalistic” approach views the
Governor’s veto at issue in
Smiley as one such procedural
restraint. Tr. of Oral Arg. 62. But when it comes to substantive
provisions, their argument goes, our precedents have nothing to
say.
This argument adopts too cramped a view of our
decision in
Smiley. Chief Justice Hughes’s opinion for the
Court drew no distinction between “procedural” and “substantive”
restraints on lawmaking. It turned on the view that state
constitutional provisions apply to a legislature’s exercise of
lawmaking authority under the Elections Clause, with no concern
about how those provisions might be categorized. 285 U. S., at
367–368; see also
Hildebrant, 241 U. S., at
569–570.
The same goes for the Court’s decision in
Arizona State Legislature. The defendants attempt to cabin
that case by arguing that the Court did not address substantive
limits on the regulation of federal elections. But as in
Smiley, the Court’s decision in
Arizona State
Legislature discussed no difference between procedure and
substance.
The dissent reads
Smiley and
Arizona
State Legislature in a different light. Justice Thomas thinks
those cases say nothing about whether a State can impose
“substantive limits” on the legislature’s exercise of power under
the Elections Clause.
Post, at 21. But in
Smiley, we
addressed whether “the conditions which attach to the making of
state laws” apply to legislatures exercising authority under the
Elections Clause. 285 U. S., at 365. We held that they do.
“Much that is urged in argument with regard to the meaning of the
term ‘Legislature,’ ” we explained, “is beside the point.”
Ibid. And we concluded in straightforward terms that
legislatures must abide by “restriction[s] imposed by state
constitutions . . . when exercising the
lawmaking power” under the Elections Clause.
Id., at 369.
Arizona State Legislature said much the same, emphasizing
that, by its text, nothing in the Elections Clause offers state
legislatures
carte blanche to act “in defiance of provisions
of the State’s constitution.” 576 U. S., at 818.
The defendants and Justice Thomas do not in any
event offer a defensible line between procedure and substance in
this context. “The line between procedural and substantive law is
hazy.”
Erie R. Co. v.
Tompkins,
304 U.S.
64,
92 (1938)
(Reed, J., concurring in part); see also
Shady Grove Orthopedic
Associates, P. A. v.
Allstate Ins. Co.,
559 U.S.
393, 419–420 (2010) (Stevens, J., concurring in part and
concurring in judgment). Many rules “are rationally capable of
classification as either.”
Hanna v.
Plumer,
380 U.S.
460, 472 (1965); see also
Sun Oil Co. v.
Wortman,
486 U.S.
717, 726 (1988) (“Except at the extremes, the terms ‘substance’
and ‘procedure’ precisely describe very little except a
dichotomy.”). Procedure, after all, is often used as a vehicle to
achieve substantive ends. When a governor vetoes a bill because of
a disagreement with its policy consequences, has the governor
exercised a procedural or substantive restraint on lawmaking?
Smiley did not endorse such murky inquiries into the nature
of constitutional restraints, and we see no neat distinction
today.
D
Were there any doubt, historical practice
confirms that state legislatures remain bound by state
constitutional restraints when exercising authority under the
Elections Clause. We have long looked to “settled and established
practice” to interpret the Constitution.
The Pocket Veto
Case,
279 U.S.
655, 689 (1929). And we have found historical practice
particularly pertinent when it comes to the Elections and Electors
Clauses.
Smiley, 285 U. S., at 369 (Elections Clause);
Chiafalo v.
Washington, 591 U. S. ___, ___–___
(2020) (slip op., at 12–14) (Electors Clause).
Two state constitutional provisions adopted
shortly after the founding offer the strongest evidence. Delaware’s
1792 Constitution provided that the State’s congressional
representatives “shall be voted for at the same places where
representatives in the State legislature are voted for, and in the
same manner.” Art. VIII, §2. Even though the Elections Clause
stated that the “Places” and “Manner” of federal elections shall be
“prescribed” by the state legislatures, the Delaware Constitution
expressly enacted rules governing the “places” and “manner” of
holding elections for federal office. An 1810 amendment to the
Maryland Constitution likewise embodied regulations falling within
the scope of the Elections and Electors Clauses. Article XIV
provided that every qualified citizen “shall vote, by
ballot, . . . for electors of the President and
Vice-President of the United States, [and] for Representatives of
this State in the Congress of the United States.” If the Elections
Clause had vested exclusive authority in state legislatures,
unchecked by state courts enforcing provisions of state
constitutions, these clauses would have been unenforceable from the
start.
Besides the two specific provisions in Maryland
and Delaware, multiple state constitutions at the time of the
founding regulated federal elections by requiring that “[a]ll
elections shall be by ballot.” Ga. Const., Art. IV, §2 (1789); see
also,
e.g., Pa. Const., Art. III, §2 (1790); Ky. Const.,
Art. III, cl. 2 (1792); Tenn. Const., Art. III, §3 (1796); Ohio
Const., Art. IV, §2 (1803); La. Const., Art. VI, §13 (1812). These
provisions directed the “manner” of federal elections within the
meaning of the Elections Clause, as Madison himself explained at
the Constitutional Convention. See 2 Farrand 240 (“Whether the
electors should vote by ballot or vivâ voce” falls within the
“great latitude” of “regulating the times places & manner of
holding elections”).
The legislative defendants discount this
evidence. They argue that those “by ballot” provisions spoke only
“to the offices that were created by” state constitutions, and not
to the federal offices to which the Elections Clause applies. Tr.
of Oral Arg. 18. We find no textual hook for that strained reading.
“All” meant then what it means now.
In addition, the Framers did not write the
Elections Clause on a blank slate—they instead borrowed from the
Articles of Confederation, which provided that “delegates shall be
annually appointed in such manner as the legislature of each state
shall direct.” Art. V. The two provisions closely parallel.
And around the time the Articles were adopted by the Second
Continental Congress, multiple States regulated the “manner” of
“appoint[ing] delegates,”
ibid., suggesting that the Framers
did not understand that language to insulate state legislative
action from state constitutional provisions. See Del. Const., Art.
XI (1776); Md. Const., Art. XXVII (1776); Va. Const., cls. 3–4
(1776); Pa. Const., §11 (1776); N. C. Const., Art. XXXVII (1776);
Ga. Const., Art. XVI (1777); N. Y. Const., Art. XXX (1777);
S. C. Const., Art. XXII (1778); Mass. Const., pt. 2, ch. IV
(1780); N. H. Const., pt. II (1784).
The defendants stress an 1820 convention held in
Massachusetts to amend the Commonwealth’s Constitution. After a
Boston delegate proposed a provision regulating the manner of
federal elections, Joseph Story—then a Justice of this Court—nixed
the effort. In Story’s view, such a provision would run afoul of
the Elections Clause by “assum[ing] a control over the Legislature,
which the constitution of the United States does not justify.”
Journal of the Debates and Proceedings in the Convention of
Delegates 110 (1853). But Story’s comment elicited little
discussion, and reflects the views of a jurist who, although “a
brilliant and accomplished man, . . . was not a member of
the Founding generation.”
U. S. Term Limits, Inc. v.
Thornton,
514 U.S.
779, 856 (1995) (Thomas, J., dissenting).
V
A
Although we conclude that the Elections Clause
does not exempt state legislatures from the ordinary constraints
imposed by state law, state courts do not have free rein. “State
courts are the appropriate tribunals . . . for the
decision of questions arising under their local law, whether
statutory or otherwise.”
Murdock v.
Memphis, 20 Wall.
590, 626 (1875). At the same time, the Elections Clause expressly
vests power to carry out its provisions in “the Legislature” of
each State, a deliberate choice that this Court must respect. As in
other areas where the exercise of federal authority or the
vindication of federal rights implicates questions of state law, we
have an obligation to ensure that state court interpretations of
that law do not evade federal law.
State law, for example, “is one important
source” for defining property rights.
Tyler v.
Hennepin
County, 598 U. S. ___, ___ (2023) (slip op., at 5); see
also
Board of Regents of State Colleges v.
Roth,
408 U.S.
564, 577 (1972) (property rights “are created and their
dimensions are defined by existing rules or understandings that
stem from an independent source such as state law”). At the same
time, the Federal Constitution provides that “private property”
shall not “be taken for public use, without just compensation.”
Amdt. 5. As a result, States “may not sidestep the Takings Clause
by disavowing traditional property interests.”
Phillips v.
Washington Legal Foundation,
524 U.S.
156, 164 (1998); see also
Webb’s Fabulous Pharmacies,
Inc. v.
Beckwith,
449 U.S.
155, 164 (1980) (holding that States may not, “by
ipse
dixit, . . . transform private property into public
property without compensation”).
A similar principle applies with respect to the
Contracts Clause, which provides that “[n]o state shall
. . . pass any . . . Law impairing the
Obligation of Contracts.” Art. I, §10, cl. 1. In that context “we
accord respectful consideration and great weight to the views of
the State’s highest court.”
Indiana ex rel. Anderson v.
Brand,
303 U.S.
95, 100 (1938). Still, “in order that the constitutional
mandate may not become a dead letter, we are bound to decide for
ourselves whether a contract was made.”
Ibid.; see also
General Motors Corp. v.
Romein,
503 U.S.
181, 187 (1992).
Cases raising the question whether adequate and
independent grounds exist to support a state court judgment involve
a similar inquiry. We have in those cases considered whether a
state court opinion below adopted novel reasoning to stifle the
“vindication in state courts of . . . federal
constitutional rights.”
NAACP v.
Alabama ex rel.
Patterson,
357 U.S.
449, 457–458 (1958).
Running through each of these examples is the
concern that state courts might read state law in such a manner as
to circumvent federal constitutional provisions. Therefore,
although mindful of the general rule of accepting state court
interpretations of state law, we have tempered such deference when
required by our duty to safeguard limits imposed by the Federal
Constitution.
Members of this Court last discussed the outer
bounds of state court review in the present context in
Bush
v.
Gore,
531 U.S.
98 (2000) (
per curiam). Our decision in that case
turned on an application of the Equal Protection Clause of the
Fourteenth Amendment.
Id., at 104–105. In separate writings,
several Justices addressed whether Florida’s Supreme Court, in
construing provisions of Florida statutory law, exceeded the bounds
of ordinary judicial review to an extent that its interpretation
violated the Electors Clause.
Chief Justice Rehnquist, joined in a concurring
opinion by Justice Thomas and Justice Scalia, acknowledged the
usual deference we afford state court interpretations of state law,
but noted “areas in which the Constitution requires this Court to
undertake an independent, if still deferential, analysis of state
law.”
Id., at 114. He declined to give effect to
interpretations of Florida election laws by the Florida Supreme
Court that “impermissibly distorted them beyond what a fair reading
required.”
Id., at 115. Justice Souter, for his part,
considered whether a state court interpretation “transcends the
limits of reasonable statutory interpretation to the point of
supplanting the statute enacted by the ‘legislature’ within the
meaning of Article II.”
Id., at 133 (Souter, J., joined by
Stevens, Ginsburg, and Breyer, JJ., dissenting).
We do not adopt these or any other test by which
we can measure state court interpretations of state law in cases
implicating the Elections Clause. The questions presented in this
area are complex and context specific. We hold only that state
courts may not transgress the ordinary bounds of judicial review
such that they arrogate to themselves the power vested in state
legislatures to regulate federal elections.
B
We decline to address whether the North
Carolina Supreme Court strayed beyond the limits derived from the
Elections Clause. The legislative defendants did not meaningfully
present the issue in their petition for certiorari or in their
briefing, nor did they press the matter at oral argument. See
Bay Area Laundry and Dry Cleaning Pension Trust Fund v.
Ferbar Corp. of Cal.,
522 U.S.
192, 206–208 (1997); see also
California v.
Texas, 593 U. S. ___, ___ (2021) (slip op., at 10).
Counsel for the defendants expressly disclaimed the argument that
this Court should reassess the North Carolina Supreme Court’s
reading of state law. Tr. of Oral Arg. 7 (“We’re not asking this
Court to second-guess or reassess. We say take the North Carolina
Supreme Court’s decision on face value and as fairly reflecting
North Carolina law . . . .”). When pressed whether
North Carolina’s Supreme Court did not fairly interpret its State
Constitution, counsel reiterated that such an argument was “not our
position in this Court.”
Id., at 54. Although counsel
attempted to expand the scope of the argument in rebuttal, such
belated efforts do not overcome prior failures to preserve the
issue for review. See this Court’s Rule 28 (“[C]ounsel making the
opening argument shall present the case fairly and completely and
not reserve points of substance for rebuttal.”).
* * *
State courts retain the authority to apply
state constitutional restraints when legislatures act under the
power conferred upon them by the Elections Clause. But federal
courts must not abandon their own duty to exercise judicial review.
In interpreting state law in this area, state courts may not so
exceed the bounds of ordinary judicial review as to
unconstitutionally intrude upon the role specifically reserved to
state legislatures by Article I, Section 4, of the Federal
Constitution. Because we need not decide whether that occurred in
today’s case, the judgment of the North Carolina Supreme Court is
affirmed.[
2]
It is so ordered.
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