On Tuesday, Michael McConnell and I published a piece in The Atlantic about the Supreme Court’s pending case of Moore v. Harper, currently headlined The Supreme Court Has A Perfectly Good Option in Its Most Divisive Case.
It begins:
Later this term, the Supreme Court will decide Moore v. Harper, a case that has been pitched as a seismic clash between two troubling positions. One side asks for state legislatures to be freed from the traditional safeguards of state constitutional law, while the other asks the Court to effectively ignore the text of the Constitution. The Court should look beyond these unsupportable positions and take a commonsense middle ground. Fortunately, one is readily available: an approach that maintains the Constitution’s emphasis on state legislatures without divorcing them from their traditional constitutional constraints.
and continues:
Missing from the debate has been a key principle that points to a sensible middle ground: A state constitution may limit a legislature’s power over federal elections, but it may not give that power to somebody else. We need not an independent-state-legislature doctrine, but a constitutional-state-legislature doctrine.
and more specifically:
What does this principle mean for concrete cases?
It means that state constitutional provisions can restrain legislative districting, such as by limiting the use of partisan gerrymandering. The broad challenge to state constitutional law in Moore therefore should fail. But it also means that the North Carolina courts do not have independent constitutional power to adopt their own map.
There is much more at the link.
Now, if you agree with our core points (which would be great) there is much more to say about how to approach the remedy when a legislature draws a legally impermissible map. Some have pointed to a recent redistricting standoff in Ohio, others to the many decades in which the Minnesota legislature has apparently refused to draw maps, happy to let the courts do the hard work.
I think it might be premature to get into these weeds, and I certainly can’t speak for my co-author about any of this. But I thought I’d offer a few modest observations for now.
The piece notes that Congress retains power to solve standoffs over congressional redistricting. It is also worth mentioning that Congress has in fact enacted some legislation on this subject already, codified in 2 U.S.C. 2a through 2c. These statutes are somewhat old, and therefore somewhat complicated to apply today, but an amicus brief by Jonathan Mitchell and Adam Mortara argues that these statutory provisions could resolve Moore.
Additionally, there might be the possibility of state legislation that authorizes a fallback approach for unconstitutional redistricting. This possibility triggers another constitutional question. Some might see such legislation as simply an instance of the state legislature exercising its constitutional power. Others might see such legislation as subject to a sort of non-delegation doctrine. The Atlantic piece doesn’t explicitly address this question, and depending on the answer, one might resolve Moore by turning to various provisions of North Carolina law that the parties dispute.
In the absence of any specific legislative response, what to do when the enacted law tries to require something unconstitutional is a severability problem, something I’ve written about recently in Severability First Principles: when a legislative enactment is not the law because it is unconstitutional, what is the law instead? These questions can be intricate and technical in particular cases, but I am not convinced they are generally intractable.
For instance, the federal statutes mentioned above might point toward either at-large elections (as provided in 2a(c)) or “hewing as closely as possible” to an older legislative map (or both, as the Mitchell/Mortara brief above argues). Other statutes or severability principles might point to something similar. Or to a starker remedy like nullity, refusing to recognize a valid method of election until one is passed that complies with the law.
Again, these issues all seem slightly premature to me, and they would deserve further study once the more basic principles are determined, but I don’t think they are mysterious.
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