Moore v. Harper ( 2023 )

(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MOORE, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE
NORTH CAROLINA HOUSE OF REPRESENTATIVES,
ET AL. v. HARPER ET AL.
CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA
No. 21–1271. Argued December 7, 2022—Decided June 27, 2023
The Elections Clause of the Federal Constitution requires “the Legisla-
ture” of each State to prescribe the rules governing federal elections.
Art. I, §4, cl. 1. This case concerns the claim that the Clause vests
state legislatures with authority to set rules governing federal elec-
tions free from restrictions imposed under state law. Following the
2020 decennial census, North Carolina’s General Assembly drafted a
new federal congressional map, which several groups of plaintiffs chal-
lenged as an impermissible partisan gerrymander in violation of the
North Carolina Constitution. The trial court found partisan gerry-
mandering claims nonjusticiable under the State Constitution, but the
North Carolina Supreme Court reversed. Harper v. Hall, 380 N. C.
317, 868 S. E. 2d 499 (Harper I). While acknowledging that partisan
gerrymandering claims are outside the reach of federal courts, see
Rucho v. Common Cause, 588 U. S. ___, ___, the State Supreme Court
held that such questions were not beyond the reach of North Carolina
courts. The court also rejected the argument that the Federal Elec-
tions Clause vests exclusive and independent authority in state legis-
latures to draw federal congressional maps. The court enjoined the
use of the maps and remanded the case to the trial court for remedial
proceedings. The legislative defendants then filed an emergency ap-
plication in this Court, citing the Elections Clause and requesting a
stay of the North Carolina Supreme Court’s decision. This Court de-
clined to issue a stay, but later granted certiorari.
After this Court granted certiorari, the North Carolina Supreme
Court issued a decision addressing a remedial map adopted by the trial
court. Harper v. Hall, 383 N. C. 89, 125, 881 S. E. 2d 156, 181 (Harper
II). The North Carolina Supreme Court then granted the legislative
2 MOORE v. HARPER
Syllabus
defendants’ request to rehear that remedial decision in Harper II. The
court ultimately withdrew the opinion in Harper II concerning the re-
medial maps and overruled Harper I, repudiating its holding that par-
tisan gerrymandering claims are justiciable under the North Carolina
Constitution. The court dismissed plaintiffs’ claims but did not rein-
state the 2021 congressional plans struck down in Harper I under the
State Constitution. This Court has entertained two rounds of supple-
mental briefing on jurisdictional questions in light of the state court’s
rehearing proceedings.
Held:
1. This Court has jurisdiction to review the judgment of the North
Carolina Supreme Court in Harper I that adjudicated the Federal
Elections Clause issue. A corollary to this Court’s jurisdiction over
“Cases” and “Controversies” is that 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 (internal quotation
marks omitted). The North Carolina Supreme Court’s decision to
withdraw Harper II and overrule Harper I does not moot this case.
Prior to the appeal and rehearing proceedings in Harper II, the court
had already entered the judgment and issued the mandate in Harper
I, and the legislative defendants acknowledged that they would remain
bound by Harper I’s decision enjoining the use of the 2021 plans. When
the North Carolina Supreme Court “overruled” Harper I as part of the
rehearing proceedings, it repudiated Harper I’s conclusion that parti-
san gerrymandering claims are justiciable under the North Carolina
Constitution. But the court did not purport to alter or amend the judg-
ment in Harper I enjoining the use of the 2021 maps. Were this Court
to reverse Harper I, the 2021 plans would again take effect. Because
the legislative defendants’ path to complete relief runs through this
Court, the parties continue to have a “personal stake in the ultimate
disposition of the lawsuit” sufficient to maintain this Court’s jurisdic-
tion. Chafin v. Chafin, 568 U. S. 165, 172 (internal quotation marks
omitted).
This Court also has jurisdiction to review the judgment in Harper I
under 28 U. S. C. §1257(a), which provides that jurisdiction in this
Court extends to “[f]inal judgments . . . rendered by the highest court
of a State in which a decision could be had.” Cox Broadcasting Corp.
v. Cohn, 420 U. S. 469, identified categories of cases in which a deci-
sion of a State’s highest court was considered a final judgment for
§1257(a) purposes despite the anticipation of additional lower court
proceedings, including “cases . . . in which the federal issue, finally de-
cided by the highest court in the State, will survive and require deci-
sion regardless of the outcome of future state-court proceedings.” Id.,
at 480. Harper I is such a case. Because subsequent proceedings have
Cite as: 600 U. S. ____ (2023) 3
Syllabus
neither altered Harper I’s analysis of the federal issue nor negated the
effect of the Harper I judgment striking down the 2021 plans, that is-
sue both has survived and requires decision by this Court. Pp. 6–11.
2. The Elections Clause does not vest exclusive and independent au-
thority in state legislatures to set the rules regarding federal elections.
Marbury v. Madison, 1 Cranch 137, famously proclaimed this
Court’s authority to invalidate laws that violate the Federal Constitu-
tion. But Marbury did not invent the concept of judicial review. State
courts had already begun to impose restraints on state legislatures,
even before the Constitutional Convention, and the practice continued
to mature during the founding era. James Madison extolled judicial
review as one of the key virtues of a constitutional system, and the
concept of judicial review was so entrenched by the time the Court de-
cided Marbury that Chief Justice Marshall referred to it as one of so-
ciety’s “fundamental principles.” Id., at 177..
The Elections Clause does not carve out an exception to that fun-
damental principle. When state legislatures prescribe the rules con-
cerning federal elections, they remain subject to the ordinary exercise
of state judicial review. Pp. 11–26.
(a) In Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, this Court
examined the Elections Clause’s application to a provision of the Ohio
Constitution permitting the State’s voters to reject, by popular vote,
any law enacted by the State’s General Assembly. This Court upheld
the Ohio Supreme Court’s determination that the Federal Elections
Clause did not preclude subjecting legislative acts under the Clause to
a popular referendum, rejecting the contention that “to include the ref-
erendum within state legislative power for the purpose of apportion-
ment is repugnant to §4 of Article I [the Elections Clause].” Id., at 569.
And in Smiley v. Holm, 285 U. S. 355, this Court considered the effect
of a Governor’s veto, pursuant to his authority under the State’s Con-
stitution, of a congressional redistricting plan. This Court held that
the Governor’s veto did not violate the Elections Clause, reasoning
that a state legislature’s “exercise of . . . authority” under the Elections
Clause “must be in accordance with the method which the State has
prescribed for legislative enactments.” Id., at 367. The Court high-
lighted that the Federal Constitution contained no “provision of an at-
tempt 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.
This Court recently reinforced the teachings of Hildebrant and Smi-
ley in Arizona State Legislature v. Arizona Independent Redistricting
Comm’n, 576 U. S. 787, a case concerning the constitutionality of an
Arizona ballot initiative to amend the State Constitution and to vest
redistricting authority in an independent commission. Significantly
4 MOORE v. HARPER
Syllabus
for present purposes, the Court embraced the core principle espoused
in Hildebrant and Smiley: Whatever authority was responsible for re-
districting, that entity remained subject to constraints set forth in the
State Constitution. The Court dismissed the argument that the Elec-
tions Clause divests state constitutions of the power to enforce checks
against the exercise of legislative power.
The basic principle of these cases—reflected in Smiley’s unanimous
command that a state legislature may not “create congressional dis-
tricts independently of” requirements imposed “by the state constitu-
tion with respect to the enactment of laws,” 285 U. S., at 373—com-
mands continued respect. Pp. 15–18.
(b) The precedents of this Court have long rejected the view that
legislative action under the Elections Clause is purely federal in char-
acter, governed only by restraints found in the Federal Constitution.
The argument to the contrary does not account for the Framers’ un-
derstanding that when legislatures make laws, they are bound by the
provisions of the very documents that give them life. Thus, when a
state legislature carries out its federal constitutional power to pre-
scribe rules regulating federal elections, it acts both as a lawmaking
body created and bound by its state constitution, and as the entity as-
signed particular authority by the Federal Constitution. Both consti-
tutions restrain the state legislature’s exercise of power.
This Court’s decision in McPherson v. Blacker, 146 U. S. 1, in which
the Court analyzed the Constitution’s similarly worded Electors
Clause, is inapposite. That decision did not address any conflict be-
tween state constitutional provisions and state legislatures. Nor does
Leser v. Garnett, 258 U. S. 130, which involved a contested vote by a
state legislature to ratify a federal constitutional amendment, help pe-
titioners. That case concerned the power of state legislatures to ratify
amendments to the Federal Constitution. 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. Pp. 18–22.
(c) Petitioners concede that at least some state constitutional pro-
visions can restrain a state legislature’s exercise of authority under
the Elections Clause, but they read Smiley and Hildebrant to differen-
tiate between procedural and substantive constraints. But neither
case drew such a distinction, and petitioners do not in any event offer
a defensible line between procedure and substance in this context. Pp.
22–24.
(d) Historical practice confirms that state legislatures remain
Cite as: 600 U. S. ____ (2023) 5
Syllabus
bound by state constitutional restraints when exercising authority un-
der the Elections Clause. Two state constitutional provisions adopted
shortly after the founding expressly constrained state legislative ac-
tion under the Elections Clause. See Del. Const., Art. VIII, §2 (1792);
Md. Const., Art. XIV (1810). In addition, multiple state constitutions
at the time of the founding regulated the “manner” of federal elections
by requiring that “elections shall be by ballot.” See, e.g., Ga. Const.,
Art. IV, §2. Moreover, the Articles of Confederation—from which the
Framers borrowed—provided that “delegates shall be annually ap-
pointed in such manner as the legislature of each state shall direct.”
Art. V. Around the time the Articles were adopted, multiple States
regulated the appointment of delegates, suggesting that the Framers
did not understand that language to insulate state legislative action
from state constitutional provisions. See, e.g., Del. Const., Art. XI
(1776). Pp. 24–26.
3. Although the Elections Clause does not exempt state legislatures
from the ordinary constraints imposed by state law, federal courts
must not abandon their duty to exercise judicial review. This Court
has an obligation to ensure that state court interpretations of state law
do not evade federal law. For example, States “may not sidestep the
Takings Clause by disavowing traditional property interests.” Phillips
v. Washington Legal Foundation, 524 U. S. 156, 167. While the Court
does not adopt a test by which state court interpretations of state law
can be measured in cases implicating the Elections Clause, 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.
The Court need not decide whether the North Carolina Supreme
Court strayed beyond the limits derived from the Elections Clause, as
petitioners did not meaningfully present the issue in this Court. Pp.
26–29.
380 N. C. 317, 868 S. E. 2d 499, affirmed.
ROBERTS, C. J., delivered the opinion of the Court, in which SO-
TOMAYOR, KAGAN, KAVANAUGH, BARRETT, and JACKSON, JJ., joined.
KAVANAUGH, J., filed a concurring opinion. THOMAS, J., filed a dissenting
opinion in which GORSUCH, J., joined, and in which ALITO, J., joined as to
Part I.
Cite as: 600 U. S. ____ (2023) 1
Opinion of the Court
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 Caro-
lina’s Legislature deliberately drew the State’s congres-
sional map to favor Republican candidates.
In drawing the State’s congressional map, North Caro-
lina’s Legislature exercised authority under the Elections
Clause of the Federal Constitution, which expressly re-
quires “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 leg-
2 MOORE v. HARPER
Opinion of the Court
islatures with authority to set rules governing federal elec-
tions free from restrictions imposed under state law.
I
The Elections Clause provides: “The Times, Places and
Manner of holding Elections for Senators and Representa-
tives, 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, en-
titling the State to an additional seat in its federal congres-
sional delegation. U. S. Census Bureau, 2020 Census Ap-
portionment Results (2021) (Table A). Following those
results, North Carolina’s General Assembly set out to re-
draw 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 re-
manded 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 As-
sembly 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).
Cite as: 600 U. S. ____ (2023) 3
Opinion of the Court
Shortly after the new maps became law, several groups
of plaintiffs—including the North Carolina League of Con-
servation Voters, Common Cause, and individual voters—
sued in state court. The plaintiffs asserted that each map
constituted an impermissible partisan gerrymander in vio-
lation 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 Assem-
bly 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 As-
sembly’s 2021 congressional districting map was “a parti-
san outlier intentionally and carefully designed to maxim-
ize Republican advantage in North Carolina’s Con-
gressional delegation.” Id., at 345, 868 S. E. 2d, at 522 (in-
ternal quotation marks omitted). But the court denied re-
lief, reasoning that the partisan gerrymandering claims
“amounted to political questions that are nonjusticiable un-
der 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 parti-
san gerrymanders. Id., at 353, 868 S. E. 2d, at 528. It also
rejected the trial court’s conclusion that partisan gerryman-
dering 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);
——————
1 The plaintiffs also asserted that North Carolina’s Legislature dis-
criminated on the basis of race and raised other claims under the North
Carolina Constitution. Harper I, 380 N. C., at 350–352, 868 S. E. 2d, at
526–527. Those claims are not at issue today.
4 MOORE v. HARPER
Opinion of the Court
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 fed-
eral 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 Fed-
eral Constitution vests exclusive and independent author-
ity 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 “substan-
tially infringe upon plaintiffs’ fundamental right to equal
voting power,” the Court struck down the maps and re-
manded 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 en-
tered 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 congres-
sional 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. Rep-
resentative 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, Har-
per 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 Su-
preme Court’s decision. We declined to issue emergency re-
lief but later granted certiorari. 597 U. S. ___ (2022).
Cite as: 600 U. S. ____ (2023) 5
Opinion of the Court
B
Following our grant of certiorari, the North Carolina Su-
preme Court heard an appeal concerning the trial court’s
remedial order. In December 2022, the Court issued a de-
cision affirming in part, reversing in part, and remanding
the case. As relevant, it agreed with the trial court’s deter-
mination that the General Assembly’s remedial congres-
sional plan “fell short” of the requirements set forth in Har-
per 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 re-
medial opinion in Harper II. Pet. for Rehearing in Harper
v. Hall, No. 413PA21, p. 25 (Jan. 20, 2023) (Pet. for Rehear-
ing). 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 de-
fendants. The Court withdrew its opinion in Harper II, con-
cerning 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 re-
newed look at the constitutional provisions at issue, the
Court repudiated Harper I ’s conclusion that partisan ger-
rymandering claims are justiciable under the North Caro-
lina Constitution. See ___ N. C., at ___, 886 S. E. 2d, at 431.
The North Carolina Supreme Court dismissed the plain-
tiffs’ 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 Con-
6 MOORE v. HARPER
Opinion of the Court
stitution. ___ N. C., at ___, 886 S. E. 2d, at 446–448. In-
stead, the Court provided the General Assembly with the
“opportunity to enact a new set of legislative and congres-
sional redistricting plans, guided by federal law, the objec-
tive 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 con-
clusion that the Federal Elections Clause does not shield
state legislatures from review by state courts for compli-
ance with state constitutional provisions. ___ N. C., at ___,
886 S. E. 2d, at 422 (“The General Assembly exercises [re-
districting] authority subject to the express limitations in
our constitution and in federal law.”). We invited the par-
ties 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 Con-
stitution provides for our jurisdiction over “Cases” and
“Controversies.” Art. III, §2. That constitutional require-
ment 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 require-
ment,” 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) (in-
ternal quotation marks omitted). Mootness doctrine “ad-
dresses whether an intervening circumstance has deprived
the plaintiff of a personal stake in the outcome of the law-
suit.” West Virginia v. EPA, 597 U. S. ___, ___ (2022) (slip
op., at 15) (alterations and internal quotation marks omit-
ted).
The North Carolina Supreme Court’s decision to with-
draw Harper II and overrule Harper I does not moot this
Cite as: 600 U. S. ____ (2023) 7
Opinion of the Court
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 re-
hearing as to that judgment had long since passed. See
N. C. Rule App. Proc. 31(a) (2023) (requiring that a rehear-
ing petition be brought within 15 days of the issuance of the
mandate). Recognizing this reality, the legislative defend-
ants did not ask the North Carolina Supreme Court to dis-
turb the judgment in Harper I as part of the rehearing pro-
ceedings. 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 legis-
lative defendants. As a result, partisan gerrymandering
claims are no longer justiciable under the State’s Constitu-
tion. 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 “dis-
turb . . . its judgment nor . . . alter the presently operative
statutes of North Carolina.” Second Supp. Letter Brief for
Petitioners 3. In other words, although partisan gerryman-
dering 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 en-
joining the use of the 2021 maps. As a result, the legislative
defendants’ path to complete relief runs through this Court.
8 MOORE v. HARPER
Opinion of the 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 “per-
sonal stake in the ultimate disposition of the lawsuit.”
Chafin v. Chafin, 568 U. S. 165, 172 (2013) (internal quota-
tion 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 favora-
ble decision of this Court . . . this case is not moot.”).
We also have jurisdiction to review the judgment in Har-
per 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, “recur-
ringly 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 proceed-
ings 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 is-
sue, finally decided by the highest court in the State, will
survive and require decision regardless of the outcome of
Cite as: 600 U. S. ____ (2023) 9
Opinion of the Court
future state-court proceedings.” Id., at 480.
Harper I fits within this second category of cases de-
scribed in Cox Broadcasting. By striking down the 2021
congressional plans enacted by the General Assembly, Har-
per I “finally decided” the “federal issue” whether the Elec-
tions 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 pro-
ceedings have neither altered Harper I ’s analysis of the fed-
eral 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 Har-
per I does not affect the judgment in that case for purposes
of §1257(a). “[T]he res judicata consequences of a final, un-
appealed 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 cor-
rected 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 de-
cided” the Elections Clause issue, which has survived sub-
sequent 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 ob-
10 MOORE v. HARPER
Opinion of the Court
serves that the North Carolina Supreme Court has now dis-
missed 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 opin-
ion). 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 rehear-
ing as to that judgment passed, the legislative defendants
instead sought rehearing with respect to Harper II, a dis-
tinct decision concerning remedies. The defendants stead-
fastly 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 De-
fendants’ 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—“with-
draw[ing]” its decision in Harper II. Harper, ___ N. C., at
___, 886 S. E. 2d, at 449. And mirroring their representa-
tions before the North Carolina Supreme Court, the legis-
lative defendants now maintain in this Court that they con-
tinue to remain bound by the judgment in Harper I.
In an effort to cast doubt on these consistent representa-
tions by the injured party before us, JUSTICE THOMAS con-
tends that the legislative defendants have already received
complete relief because nothing now prevents the imple-
mentation of the 2021 maps. Post, at 15 (dissenting opin-
ion). 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,
Cite as: 600 U. S. ____ (2023) 11
Opinion of the Court
and it did not prevent our granting certiorari. The conces-
sions offered by the legislative defendants as part of the re-
hearing 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 con-
tinues to enjoin the use of the 2021 maps. Following the
dissent’s logic and dismissing this case as moot would fore-
close the one path to full relief available to the legislative
defendants: A decision by this Court reversing the judg-
ment in Harper I.
This Court has before it a judgment issued by a State’s
highest court that adjudicates a federal constitutional is-
sue. The defendants did not ask the North Carolina Su-
preme 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 exer-
cise 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 pro-
ceedings. 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 con-
gressional 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 recog-
nized their duty to evaluate the constitutionality of legisla-
tive acts. We announced our responsibility to review laws
12 MOORE v. HARPER
Opinion of the Court
that are alleged to violate the Federal Constitution in Mar-
bury 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 con-
stitutional limits on the exercise of its authority. “Certainly
all those who have framed written constitutions,” we rea-
soned, “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 legis-
lature, 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 Con-
vention 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. Alt-
hough Rhode Island lacked a written constitution, Varnum
argued that the State nevertheless had a constitution re-
flecting the basic historical rights of the English. And, he
contended, the courts must honor “the principles of the con-
stitution 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 legisla-
ture, which replaced four of the five judges involved. W.
Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev.
Cite as: 600 U. S. ____ (2023) 13
Opinion of the Court
455, 478 (2005). His arguments were published as a pam-
phlet, which “may well have been the most prominent dis-
cussion 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 estab-
lished.” 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 judi-
cial 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 legisla-
ture, 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 judi-
cial 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
14 MOORE v. HARPER
Opinion of the Court
lauded the Rhode Island judges “who refused to execute an
unconstitutional law,” lamenting that the State’s legisla-
ture 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 peo-
ple themselves, would be considered by the Judges as null
& void.” Id., at 93. Elbridge Gerry, a delegate from Massa-
chusetts, 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 “ger-
rymander.”) 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 Ham-
ilton maintained that “courts of justice” have the “duty . . .
to declare all acts contrary to the manifest tenor of the Con-
stitution 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 govern-
ments.” Id., No. 81, at 482.
State cases, debates at the Convention, and writings de-
fending the Constitution all advanced the concept of judicial
review. And in the years immediately following ratifica-
tion, courts grew assured of their power to void laws incom-
patible 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 funda-
mental principles of our society.” 1 Cranch, at 176–177.
Cite as: 600 U. S. ____ (2023) 15
Opinion of the Court
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 re-
view.
A
We first considered the interplay between state constitu-
tional provisions and a state legislature’s exercise of au-
thority 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 Gen-
eral Assembly.” Id., at 566. In 1915, the Ohio General As-
sembly 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. Da-
vis 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 apportion-
ment 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, con-
sidered the effect of a Governor’s veto of a state redistricting
16 MOORE v. HARPER
Opinion of the Court
plan. 285 U. S. 355, 361 (1932). Following the 15th decen-
nial 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 never-
theless began to implement the legislature’s map for up-
coming elections. A citizen sued, contending that the legis-
lature’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. Smi-
ley 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 pre-
scribed 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. (cit-
ing provisions in Massachusetts and New York). Subjecting
state legislatures to such a limitation “was no more incon-
gruous with the grant of legislative authority to regulate
congressional elections than the fact that the Congress in
Cite as: 600 U. S. ____ (2023) 17
Opinion of the Court
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 ex-
ecutive 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 Hilde-
brant and Smiley in a case considering the constitutionality
of an Arizona ballot initiative. Voters “amended Arizona’s
Constitution to remove redistricting authority from the Ar-
izona Legislature and vest that authority in an independent
commission.” Arizona State Legislature v. Arizona Inde-
pendent 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 ‘legis-
lature,’ ” id., at 813–814, and concluded that the people of
Arizona retained the authority to create “an alternative leg-
islative process” by vesting the lawmaking power of redis-
tricting 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 ordinar-
ily exercise lawmaking power. States, the Court explained,
18 MOORE v. HARPER
Opinion of the Court
“retain autonomy to establish their own governmental pro-
cesses.” Id., at 816.
The significant point for present purposes is that the
Court in Arizona State Legislature recognized that what-
ever authority was responsible for redistricting, that entity
remained subject to constraints set forth in the State Con-
stitution. 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 refer-
endum 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 constitu-
tions of the power to enforce checks against the exercise of
legislative power: “Nothing in [the Elections] Clause in-
structs, 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 opin-
ion).
The reasoning we unanimously embraced in Smiley com-
mands our continued respect: A state legislature may not
“create congressional districts independently of ” require-
ments 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 legisla-
tures 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
Cite as: 600 U. S. ____ (2023) 19
Opinion of the Court
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 de-
scribed. 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 dis-
sent 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. Leg-
islatures, the Framers recognized, “are the mere creatures
of the State Constitutions, and cannot be greater than their
creators.” 2 Farrand 88. “What are Legislatures? Crea-
tures of the Constitution; they owe their existence to the
Constitution: they derive their powers from the Constitu-
tion: 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 under-
mines it. When a state legislature carries out its constitu-
tional 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 author-
ity 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]
20 MOORE v. HARPER
Opinion of the Court
Number of Electors.” Art. II, §1, cl. 2. McPherson consid-
ered 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 Presi-
dential electors, the Clause “leaves it to the legislature ex-
clusively 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 Con-
stitution 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 un-
der 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 in-
valid because state constitutional provisions “render[ed] in-
operative the alleged ratifications by their legislatures.”
258 U. S., at 137. We rejected that position, holding that
when state legislatures ratify amendments to the Constitu-
tion, they carry out “a federal function derived from the
Federal Constitution,” which “transcends any limitations
Cite as: 600 U. S. ____ (2023) 21
Opinion of the Court
sought to be imposed by the people of a State.” Ibid.But the legislature in Leser performed a ratifying func-
tion rather than engaging in traditional lawmaking. The
provisions at issue in today’s case—like the provisions ex-
amined in Hildebrant and Smiley—concern a state legisla-
ture’s exercise of lawmaking power. And as we held in Smi-
ley, 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” un-
der 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 (provid-
ing for the direct election of Senators).
By fulfilling their constitutional duty to craft the rules
governing federal elections, state legislatures do not con-
sent, ratify, or elect—they make laws. Elections are com-
plex affairs, demanding rules that dictate everything from
the date on which voters will go to the polls to the dimen-
sions and font of individual ballots. Legislatures must “pro-
vide a complete code for congressional elections,” including
regulations “relati[ng] to notices, registration, supervision
22 MOORE v. HARPER
Opinion of the Court
of voting, protection of voters, prevention of fraud and cor-
rupt practices, counting of votes, duties of inspectors and
canvassers, and making and publication of election re-
turns.” Smiley, 285 U. S., at 366. In contrast, a simple up-
or-down vote suffices to ratify an amendment to the Consti-
tution. Providing consent to the purchase of land or elect-
ing Senators involves similarly straightforward exercises of
authority. But fashioning regulations governing federal
elections “unquestionably calls for the exercise of lawmak-
ing 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 fed-
eral 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 re-
strain 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.). Smi-
ley, in their view, stands for the proposition that state con-
stitutions 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 sub-
stantive 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
Cite as: 600 U. S. ____ (2023) 23
Opinion of 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., at569–570.
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 lim-
its” on the legislature’s exercise of power under the Elec-
tions 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 mean-
ing 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 legisla-
tures 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
24 MOORE v. HARPER
Opinion of the Court
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 capa-
ble 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 ‘sub-
stance’ and ‘procedure’ precisely describe very little except
a dichotomy.”). Procedure, after all, is often used as a vehi-
cle 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 re-
straint 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 re-
straints 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 histor-
ical 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 repre-
sentatives “shall be voted for at the same places where rep-
resentatives in the State legislature are voted for, and in
the same manner.” Art. VIII, §2. Even though the Elec-
tions Clause stated that the “Places” and “Manner” of fed-
eral elections shall be “prescribed” by the state legislatures,
the Delaware Constitution expressly enacted rules govern-
Cite as: 600 U. S. ____ (2023) 25
Opinion of the Court
ing the “places” and “manner” of holding elections for fed-
eral office. An 1810 amendment to the Maryland Constitu-
tion 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 Con-
gress 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 Del-
aware, multiple state constitutions at the time of the found-
ing regulated federal elections by requiring that “[a]ll elec-
tions 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 legisla-
ture of each state shall direct.” Art. V. The two provisions
26 MOORE v. HARPER
Opinion of the Court
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 con-
stitutional 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 Massa-
chusetts to amend the Commonwealth’s Constitution. Af-
ter 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 pro-
vision would run afoul of the Elections Clause by “as-
sum[ing] a control over the Legislature, which the constitu-
tion 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 Found-
ing 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 im-
posed 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”
Cite as: 600 U. S. ____ (2023) 27
Opinion of the Court
of each State, a deliberate choice that this Court must re-
spect. As in other areas where the exercise of federal au-
thority or the vindication of federal rights implicates ques-
tions 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 de-
fining 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 ex-
isting rules or understandings that stem from an independ-
ent source such as state law”). At the same time, the Fed-
eral 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 be-
come a dead letter, we are bound to decide for ourselves
whether a contract was made.” Ibid.; see also General Mo-
tors Corp. v. Romein, 503 U. S. 181, 187 (1992).
Cases raising the question whether adequate and inde-
pendent grounds exist to support a state court judgment in-
volve a similar inquiry. We have in those cases considered
whether a state court opinion below adopted novel reason-
ing to stifle the “vindication in state courts of . . . federal
28 MOORE v. HARPER
Opinion of the Court
constitutional rights.” NAACP v. Alabama ex rel. Patter-
son, 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 defer-
ence 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 Su-
preme 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 re-
quires this Court to undertake an independent, if still def-
erential, 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 inter-
pretation “transcends the limits of reasonable statutory in-
terpretation 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 im-
plicating the Elections Clause. The questions presented in
Cite as: 600 U. S. ____ (2023) 29
Opinion of the Court
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 elec-
tions.
B
We decline to address whether the North Carolina Su-
preme Court strayed beyond the limits derived from the
Elections Clause. The legislative defendants did not mean-
ingfully present the issue in their petition for certiorari or
in their briefing, nor did they press the matter at oral argu-
ment. 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 dis-
claimed 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 Caro-
lina’s Supreme Court did not fairly interpret its State Con-
stitution, counsel reiterated that such an argument was
“not our position in this Court.” Id., at 54. Although coun-
sel attempted to expand the scope of the argument in rebut-
tal, 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 sub-
stance for rebuttal.”).
* * *
State courts retain the authority to apply state constitu-
tional restraints when legislatures act under the power con-
ferred upon them by the Elections Clause. But federal
30 MOORE v. HARPER
Opinion of the Court
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 re-
served 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.
——————
2 As noted, supra, at 5–6, the North Carolina Supreme Court withdrew
the opinion in Harper II, which addressed both the remedial maps devel-
oped by the General Assembly and an order by the trial court implement-
ing an interim plan for the 2022 elections. The remedial order, having
been withdrawn, is not before us, and our decision today does not pass
on the constitutionality of any particular map adopted by the state
courts.
Cite as: 600 U. S. ____ (2023) 1
KAVANAUGH, J., concurring
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]
JUSTICE KAVANAUGH, concurring.
I join the Court’s opinion in full. The Court today
correctly concludes that state laws governing federal
elections are subject to ordinary state court review,
including for compliance with the relevant state
constitution. Ante, at 15, 26, 29. But because the Elections
Clause assigns authority respecting federal elections to
state legislatures, the Court also correctly concludes that
“state courts do not have free rein” in conducting that
review. Ante, at 26. Therefore, a state court’s
interpretation of state law in a case implicating the
Elections Clause is subject to federal court review. Ante, at
26–30; see also Bush v. Palm Beach County Canvassing
Bd., 531 U. S. 70, 76–78 (2000) (unanimously concluding
that a state court’s interpretation of state law in a federal
election case presents a federal issue); cf. Democratic
National Committee v. Wisconsin State Legislature, 592
U. S. ___, ___, n. 1 (2020) (KAVANAUGH, J., concurring in
denial of application to vacate stay) (slip op., at 9, n. 1).
Federal court review of a state court’s interpretation of
state law in a federal election case “does not imply a
disrespect for state courts but rather a respect for the
constitutionally prescribed role of state legislatures.” Bush
2 MOORE v. HARPER
KAVANAUGH, J., concurring
v. Gore, 531 U. S. 98, 115 (2000) (Rehnquist, C. J.,
concurring).
The question, then, is what standard a federal court
should employ to review a state court’s interpretation of
state law in a case implicating the Elections Clause—
whether Chief Justice Rehnquist’s standard from Bush v.
Gore; Justice Souter’s standard from Bush v. Gore; the
Solicitor General’s proposal in this case; or some other
standard.
Chief Justice Rehnquist’s standard is straightforward:
whether the state court “impermissibly distorted” state law
“beyond what a fair reading required.” Ibid. As I
understand it, Justice Souter’s standard, at least the
critical language, is similar: whether the state court
exceeded “the limits of reasonable” interpretation of state
law. Id., at 133 (dissenting opinion). And the Solicitor
General here has proposed another similar approach:
whether the state court reached a “truly aberrant”
interpretation of state law. Brief for United States as
Amicus Curiae 27.
As I see it, all three standards convey essentially the
same point: Federal court review of a state court’s
interpretation of state law in a federal election case should
be deferential, but deference is not abdication.1 I would
adopt Chief Justice Rehnquist’s straightforward standard.
As able counsel for North Carolina stated at oral argument,
the Rehnquist standard “best sums it up.” Tr. of Oral Arg.
131. Chief Justice Rehnquist’s standard should apply not
——————
1 I doubt that there would be a material difference in application
among the standards formulated by Chief Justice Rehnquist, Justice
Souter, and the Solicitor General, given the similarities in the three
standards, at least as described above. To be sure, different judges may
reach different conclusions in an individual case about whether a
particular state court interpretation is impermissible under the chosen
standard. But I doubt that the precise formulation of the standard—
assuming it is Chief Justice Rehnquist’s, Justice Souter’s, or the Solicitor
General’s—would be the decisive factor in any such disagreement.
Cite as: 600 U. S. ____ (2023) 3
KAVANAUGH, J., concurring
only to state court interpretations of state statutes, but also
to state court interpretations of state constitutions. And in
reviewing state court interpretations of state law, “we
necessarily must examine the law of the State as it existed
prior to the action of the [state] court.” Bush, 531 U. S., at
114 (Rehnquist, C. J., concurring).
Petitioners here, however, have disclaimed any argument
that the North Carolina Supreme Court misinterpreted the
North Carolina Constitution or other state law. See ante,
at 29.2 For now, therefore, this Court need not, and
ultimately does not, adopt any specific standard for our
review of a state court’s interpretation of state law in a case
implicating the Elections Clause. See ante, at 28 (“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”). Instead, the Court today says
simply that “state courts do not have free rein” and “hold[s]
only that state courts may not transgress the ordinary
bounds of judicial review.” Ante, at 26, 29. In other words,
the Court has recognized and articulated a general
principle for federal court review of state court decisions in
federal election cases. In the future, the Court should and
presumably will distill that general principle into a more
specific standard such as the one advanced by Chief Justice
Rehnquist.
With those additional comments, I agree with the Court’s
conclusions that (i) state laws governing federal elections
are subject to ordinary state court review, and (ii) a state
court’s interpretation of state law in a case implicating the
Elections Clause is in turn subject to federal court review.
——————
2 Instead, petitioners make the broader argument, which the Court
today properly rejects, that the Elections Clause bars state courts from
reviewing state laws for compliance with the relevant state constitution.
Cite as: 600 U. S. ____ (2023) 1
THOMAS, J., dissenting
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]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
and with whom JUSTICE ALITO joins as to Part I, dissenting.
This Court sits “to resolve not questions and issues but
‘Cases’ or ‘Controversies.’ ” Arizona Christian School Tui-
tion Organization v. Winn, 563 U. S. 125, 132 (2011); see
U. S. Const., Art. III, §1. As a corollary of that basic consti-
tutional principle, the Court “is without power to decide
moot questions or to give advisory opinions which cannot
affect the rights of the litigants in the case before it.” St.
Pierre v. United States, 319 U. S. 41, 42 (1943) (per curiam).
To do so would be to violate “the oldest and most consistent
thread in the federal law of justiciability.” Flast v. Cohen,
392 U. S. 83, 96 (1968) (internal quotation marks omitted).
The opinion that the Court releases today breaks that
thread. It “affirms” an interlocutory state-court judgment
that has since been overruled and supplanted by a final
judgment resolving all claims in petitioners’ favor. The is-
sue on which it opines—a federal defense to claims already
dismissed on other grounds—can no longer affect the judg-
ment in this litigation in any way. As such, the question is
indisputably moot, and today’s majority opinion is plainly
advisory. Because the writ of certiorari should be dis-
missed, I respectfully dissent.
2 MOORE v. HARPER
THOMAS, J., dissenting
I
Here is the case before us in a nutshell: A group of plain-
tiffs sued various state officials under state law. The de-
fendants raised both state-law and federal-law defenses. In
the interlocutory judgment below, the State Supreme Court
rejected both defenses and remanded for further proceed-
ings. We granted review to consider the defendants’ federal
defense. But then, in subsequent proceedings, the state
court revisited defendants’ alternative state-law defense
and held that it was meritorious. As a result, the court fi-
nally adjudicated the whole case in the defendants’ favor,
dismissing the plaintiffs’ claims with prejudice.
This is a straightforward case of mootness. The federal
defense no longer makes any difference to this case—
whether we agree with the defense, disagree with it, or say
nothing at all, the final judgment in this litigation will be
exactly the same. The majority does not seriously contest
that fact. Even so, it asserts jurisdiction to decide this free-
floating defense that affects no live claim for relief, reason-
ing that a justiciable case or controversy exists as long as
its opinion can in any way “alter the presently operative
statutes of ” a State. Ante, at 7 (internal quotation marks
omitted). By its own lights, the majority “is acting not as
an Article III court,” Uzuegbunam v. Preczewski, 592 U. S.
___, ___ (2021) (ROBERTS, C. J., dissenting) (slip op., at 3),
but as an ad hoc branch of a state legislature. That is em-
phatically not our job. Compare U. S. Const., Art. III, §1,
with N. C. Const., Art. II, §1.
A
To review the history of this case is to demonstrate that
the question presented is moot. In 2021, the North Carolina
General Assembly passed an Act to redistrict the State for
elections to the U. S. House of Representatives. Plaintiffs-
respondents filed an action in state court, seeking to enjoin
state elections officials (defendants-respondents here) from
Cite as: 600 U. S. ____ (2023) 3
THOMAS, J., dissenting
conducting elections in accord with the Act.1 They based
their claim for relief on the North Carolina Constitution,
which they argued prohibits excessive partisan gerryman-
ders.
Petitioners, state legislators representing North Caro-
lina’s interest in the enforcement of the Act, see N. C. Gen.
Stat. Ann. §1–72.2 (2021); Berger v. North Carolina State
Conference of the NAACP, 597 U. S. ___, ___, ___–___ (2022)
(slip op., at 2, 8–9), raised defenses under both state and
federal law. As relevant here, they argued: (1) that
partisan-gerrymandering claims are not justiciable under
the North Carolina Constitution; and (2) that the State
Constitution cannot restrict the General Assembly’s con-
gressional districting legislation under the federal Elec-
tions Clause, U. S. Const., Art. I, §4, cl. 1.
Initially, a three-judge trial court endorsed petitioners’
state-law defense and entered a final judgment dismissing
plaintiffs-respondents’ claims with prejudice. But, on ap-
peal, the North Carolina Supreme Court reversed that
judgment. See Harper v. Hall, 380 N. C. 317, 868 S. E. 2d
499 (2022) (Harper I). In Harper I, the court held that the
2021 Act violated the State Constitution, enjoined its im-
plementation, and remanded the case to the trial court for
remedial proceedings. In doing so, Harper I rejected both
petitioners’ state-law justiciability defense and their fed-
eral Elections Clause defense.
Petitioners then sought this Court’s review of Harper I
insofar as it rejected their federal defense. From the start,
they faced a significant jurisdictional question. Our appel-
——————
1 Technically, there were two state-court actions below. These actions
have been consolidated at every stage and can be regarded as one action
for all relevant purposes. For simplicity, I will use the singular. Also for
simplicity, I focus here on plaintiffs-respondents’ challenge to the 2021
congressional districting map, putting aside their parallel challenges to
the Assembly’s 2021 State House and State Senate maps.
4 MOORE v. HARPER
THOMAS, J., dissenting
late jurisdiction over state courts is limited to “[f]inal judg-
ments or decrees rendered by the highest court of a State in
which a decision could be had.” 28 U. S. C. §1257(a). But
Harper I was “a classic example of non-finality”; it was an
order that resolved the issue of liability and remanded for
remedial proceedings. Taylor v. Board of Ed. of City School
Dist. of New Rochelle, 288 F. 2d 600, 602 (CA2 1961)
(Friendly, J.). Thus, under the normal rules, Harper I
would not be “reviewable by this Court.” Jefferson v. City
of Tarrant, 522 U. S. 75, 81 (1997).
Nonetheless, this Court’s precedents have recognized “a
limited set of situations” in which “finality as to [a] federal
issue” permits our review, even in the absence of a final
judgment as to the case. O’Dell v. Espinoza, 456 U. S. 430(1982) (per curiam) (emphasis added). In granting certio-
rari, we relied on one of those doctrinal exceptions, prem-
ised on the assumption that “the federal issue” in this case
would “survive and require decision regardless of the out-
come of future state-court proceedings.” Cox Broadcasting
Corp. v. Cohn, 420 U. S. 469, 480 (1975).
As it turned out, that assumption was wrong. After Har-
per I, on remand, the trial court adopted a remedial district-
ing plan for the 2022 elections. Petitioners then appealed
that order, taking the case to the North Carolina Supreme
Court for a second time. Initially, the North Carolina Su-
preme Court released an opinion applying Harper I and af-
firming the trial court’s decree. Harper v. Hall, 383 N. C.
89, 881 S. E. 2d 156 (2022) (Harper II ). But then, after
granting petitioners’ request for rehearing, the court “re-
visit[ed] the crucial issue in this case: whether claims of
partisan gerrymandering are justiciable under the state
constitution.” Harper v. Hall, ___ N. C. ___, ___, 886 S. E.
2d 393, 399 (2023) (Harper III ). After reexamining “the
fundamental premises underlying the decisions in both
Harper II and Harper I,” the court “h[e]ld that partisan ger-
Cite as: 600 U. S. ____ (2023) 5
THOMAS, J., dissenting
rymandering claims present a political question that is non-
justiciable under the North Carolina Constitution.” Id., at
___–___, 886 S. E. 2d, at 400–401. It concluded:
“This Court’s opinion in Harper I is overruled. We
affirm the three-judge panel’s [original] 11 January
2022 Judgment concluding, inter alia, that claims of
partisan gerrymandering present nonjusticiable, polit-
ical questions and dismissing all of plaintiffs’ claims
with prejudice. This Court’s opinion in Harper II is
withdrawn and superseded by this opinion. The three-
judge panel’s 23 February 2022 order addressing the
Remedial Plans is vacated. Plaintiffs’ claims are dis-
missed with prejudice.” Id., at ___, 886 S. E. 2d, at 449.
In short, this case is over, and petitioners won. The trial
court’s original final judgment in favor of petitioners, af-
firmed by the State Supreme Court in Harper III, repre-
sents “the final determination of the rights of the parties”
in this case. N. C. Rule Civ. Proc. 54(a) (2023). Harper I
has been overruled, and plaintiffs-respondents’ claims for
relief have been dismissed on adequate and independent
state-law grounds. As a result, petitioners’ alternative
Elections Clause defense to those claims no longer requires
decision; the merits of that defense simply have no bearing
on the judgment between the parties in this action. That is
the definition of mootness for an issue.
It follows that no live controversy remains before this
Court. For any case or controversy to exist here, petitioners
must be injured by the judgment below, and we must be
able to redress that injury by acting upon that judgment.
See, e.g., Food Marketing Institute v. Argus Leader Media,
588 U. S. ___, ___ (2019) (slip op., at 4); see also Ex parte
Bollman, 4 Cranch 75, 86 (1807) (“The criterion [of] appel-
late . . . jurisdiction, is that it revises and corrects the deci-
sions of another tribunal”). But petitioners are not injured
by the judgment of Harper I at all, nor could we redress any
6 MOORE v. HARPER
THOMAS, J., dissenting
injury to petitioners by doing anything to it. Whether we
accept or reject petitioners’ Elections Clause defense,
plaintiffs-respondents’ claims remain dismissed. As far as
this case is concerned, there simply is nothing this Court
could decide that could make any difference to who wins or
what happens next in any lower court. That is the defini-
tion of mootness for an appellate proceeding.
The United States understands this. See Supplemental
Letter Brief for United States as Amicus Curiae 3 (May 11,
2023) (“[T]he question this Court granted certiorari to de-
cide is now moot because the Court’s resolution of that ques-
tion could not affect the disposition of this case”). So do the
elections officials whose conduct Harper I once enjoined.
Supplemental Brief for State Respondents 1 (May 11, 2023)
(“[T]his case is moot”). So, too, do the plaintiffs-respondents
who started this case in the first place. See Letter Brief for
North Carolina League of Conservation Voters, Inc., et al.
2 (May 11, 2023) (“The North Carolina Supreme Court’s
February 2022 judgment reversing the same January 11,
2022 trial-court judgment that the North Carolina Supreme
Court just affirmed is now a nullity”); Supplemental Letter
Brief for Rebecca Harper et al. 1 (May 11, 2023) (“Petition-
ers have won a full victory in state court”). As one group of
plaintiffs-respondents put it, “there is no non-frivolous ba-
sis for jurisdiction here.” Ibid.B
The majority does not contest that the Elections Clause
issue in this case was only a defense to plaintiffs-
respondents’ claims for relief. Nor does it deny that Harper
III overruled Harper I and affirmed the very same trial-
court judgment that Harper I had reversed. And it concedes
that, as a result, plaintiffs-respondents’ claims have been
dismissed in full on state-law nonjusticiability grounds.
Thus, the majority does not contend that its opinion on the
Cite as: 600 U. S. ____ (2023) 7
THOMAS, J., dissenting
Elections Clause issue could make any difference to the fi-
nal judgment “adjudicating all the claims and the rights
and liabilities of all the parties” in this case. N. C. Rule Civ.
Proc. 54(b). That should be the end of the discussion. Be-
cause the question presented “cannot affect the rights of
[the] litigants in the case before [us],” we “are without
power to decide” it. North Carolina v. Rice, 404 U. S. 244,
246 (1971) (per curiam).
Nonetheless, the majority finds that the judgment below
still presents a live Article III case or controversy; it then
further concludes that the question presented has survived
and requires decision under Cox Broadcasting.2 See ante,
at 6–11. In doing so, it relies extensively on petitioners’
“representations” that they “remain bound by the judgment
in Harper I.” Ante, at 10; see also ante, at 5, 7, 11. But, of
course, parties’ mere representations that they are injured
never carry their “burden of demonstrating that they have
standing” in this Court. TransUnion LLC v. Ramirez, 594
U. S. ___, ___ (2021) (slip op., at 15) (emphasis added). Nor
can such representations affect our “independent obligation
to assure ourselves that jurisdiction is proper before pro-
ceeding to the merits.” Plains Commerce Bank v. Long
Family Land & Cattle Co., 554 U. S. 316, 324 (2008).
To ensure that it has jurisdiction here, the majority must
explain how petitioners’ federal defense could still affect
“the rights of [the] litigants in th[is] case.” Rice, 404 U. S.,
at 246. It fails to do so. Instead, it mostly points to irrele-
——————
2 In this case, these two inquiries are identical, making the majority’s
bifurcated analysis somewhat artificial. To say that an issue “will sur-
vive and require decision,” as Cox Broadcasting uses the phrase, simply
means that it will not become moot, generally through some other issue
independently resolving the case (precisely what happened here). See,
e.g., Pierce County v. Guillen, 537 U. S. 129, 141, n. 5 (2003); Florida v.
Thomas, 532 U. S. 774, 779 (2001); Jefferson v. City of Tarrant, 522 U. S.
75, 82–83 (1997); Cox Broadcasting, 420 U. S., at 478, 480–481, and n. 9.
8 MOORE v. HARPER
THOMAS, J., dissenting
vant facts about the procedural history of this case and mis-
applies civil-procedure rules as if Harper I and Harper III
did not involve the same case. But the error that actually
drives the majority’s conclusion is much deeper. The ma-
jority evidently thinks that when Harper I held the 2021
Act unconstitutional, it entered a “judgment” affecting the
2021 Act as a statute, independent of its application to the
legal rights of the litigants in this case. And the majority
thinks that to reverse Harper I ’s “judgment” would “negate
the force of its order striking down” the Act, thus “alter[ing]
the presently operative statutes of North Carolina.” Ante,
at 7 (internal quotation marks omitted). But, of course, the
judicial power does not “operate on legal rules in the ab-
stract”; it operates on the rights and liabilities of contend-
ing parties with adverse legal interests. California v.
Texas, 593 U. S. ___, ___ (2021) (slip op., at 8) (internal quo-
tation marks omitted). The majority’s reasoning cannot be
squared with the judicial power vested by the Constitution,
the case-or-controversy requirement, or the nature of judi-
cial review.
I start by clearing away some of the brush. True, Harper
III did not expressly “revisit” the Elections Clause issue,
ante, at 6; true as well, petitioners did not obtain rehearing
of Harper I, see ante, at 7. But none of that matters because
Harper III ’s final judgment mooted the Elections Clause is-
sue in this case by dismissing plaintiffs-respondents’ claims
on alternative state-law grounds.3 Likewise, the idea that
——————
3 Incidentally, the majority seriously errs when it says that Harper III
“reaffirmed” Harper I ’s Elections Clause holding, ante, at 9, apparently
referencing Harper III ’s statement that “[t]he General Assembly exer-
cises [redistricting] authority subject to the express limitations in our
constitution and in federal law,” ___ N. C., at ___, 886 S. E. 2d, at 422;
see also ante, at 6. The only “express limitations” Harper III meant were
“Article II, Sections 3 and 5,” of the State Constitution, which address
only state-legislative districts. ___ N. C., at ___, 886 S. E. 2d, at 422. As
Harper III acknowledged, “there is no provision in the state constitution
Cite as: 600 U. S. ____ (2023) 9
THOMAS, J., dissenting
Harper III did not “alter or amend in any way the judgment
in Harper I,” ante, at 9, is both irrelevant and incorrect. It
is irrelevant because our jurisdiction requires a case, and
this case is over no matter what becomes of the empty husk
of Harper I ’s interlocutory judgment. It is incorrect because
Harper I ’s judgment—reversing the trial court’s original
judgment and remanding the case—was completely ne-
gated by Harper III ’s affirmance of the same trial-court
judgment.
In the same vein, the majority’s suggestion that Harper I
has any “res judicata consequences” is completely inappo-
site. Ante, at 9 (internal quotation marks omitted). Res
judicata is the principle that “[a] final judgment on the mer-
its of an action” bars relitigation “in [a] second action” of the
same claim or of issues actually litigated and necessary to
the judgment in the first action. Federated Department
Stores, Inc. v. Moitie, 452 U. S. 394, 398 (1981); see also
Taylor v. Sturgell, 553 U. S. 880, 892 (2008). Harper I was
not a final judgment (as the majority concedes by applying
Cox Broadcasting), so res judicata simply has nothing to do
with it. Nothing decided by Harper I was res judicata in the
second state-court appeal, see Southern R. Co. v. Clift, 260
U. S. 316, 319 (1922), nor would Harper I ’s interlocutory
Elections Clause holding have any res judicata effect in a
future action between these parties, see Restatement (Sec-
ond) of Judgments §27, and Comment h, and Illus. 13 and
14 (1980) (only issue determinations essential to a final
——————
regarding redistricting of congressional districts.” Id., at ___, 886 S. E.
2d, at 419. To the extent that Harper III suggests any view about
whether such provisions would be binding if they existed, it seems to
suggest agreement with petitioners. See ibid. (“The Federal Constitu-
tion . . . commits drawing of congressional districts to the state legisla-
tures subject to oversight by the Congress of the United States”). But, of
course, Harper III had no need to decide that question, because its state-
law justiciability holding fully determined the judgment in this action,
thus mooting petitioners’ alternative Elections Clause defense.
10 MOORE v. HARPER
THOMAS, J., dissenting
judgment have preclusive effect; if a defendant obtains a fi-
nal judgment based on one defense, the court’s rejection of
alternative defenses is not preclusive in a later action). At
the risk of belaboring the obvious, the clearest proof that
Harper I was not a final judgment is Harper III—which “re-
visit[ed]” Harper I ’s determination of a “crucial issue in this
case,” ___ N. C., at ___, 886 S. E. 2d, at 399; overruled Har-
per I ’s determination of that issue; and affirmed the very
same final judgment for petitioners that Harper I had re-
versed.4
How could petitioners still be injured, and what more
could this Court possibly do for them? The majority sug-
gests that the interlocutory injunction issued in Harper I
still harms petitioners, see ante, at 7, 10–11, but that idea
is untenable. To start, the majority overlooks that the in-
junction only ran against the conduct of defendants-
respondents—the state officials who actually implement
election laws—not petitioners as legislators. See Berger,
597 U. S., at ___ (slip op., at 2). Next, the majority fails to
consider what it would mean if the injunction is still bind-
ing: that defendants-respondents are liable to “be held in
contempt and put in jail” if they ever implement the 2021
Act, Richmond Cty. Bd. of Ed. v. Cowell, 254 N. C. App. 422,
426, 803 S. E. 2d 27, 30–31 (2017), even though Harper III
dismissed this suit’s challenge to the Act as “beyond the
reach of [North Carolina’s] courts,” ___ N. C., at ___, 886
S. E. 2d, at 431 (internal quotation marks omitted). That
——————
4 These facts refute the majority’s dismissive reference to Harper III as
“a distinct decision concerning remedies,” as well as any suggestion that
Harper III was “another case” than Harper I for res judicata purposes.
Ante, at 9–10 (internal quotation marks omitted). Harper I and Harper
III involved exactly the same case, and there is “only one final judgment
per case.” Chaka v. Lane, 894 F. 2d 923, 924 (CA7 1990) (Easterbrook,
J.); see also Insurance Co. v. Dunn, 19 Wall. 214, 225 (1874) (“To say that
there can be two final judgments upon the same pleadings, in the same
cause, in the same court, . . . involves a solecism”). In this case, it was
not Harper I.
Cite as: 600 U. S. ____ (2023) 11
THOMAS, J., dissenting
idea defies both common sense and civil procedure. A court
simply does not go on enforcing an interlocutory injunc-
tion—and imposing contempt sanctions for disobedience—
after reaching a final judgment dismissing every relevant
claim for relief. Rather, the interlocutory injunction (like
all interlocutory orders) merges into the final judgment
fully “adjudicating all the claims and the rights and liabil-
ities of all the parties” to the case. N. C. Rule Civ. Proc.
54(b) (emphasis added). “With the entry of [Harper III ’s]
final judgment, the life of [Harper I ’s] injunction came to an
end, and it no longer ha[s] a binding effect on any one.”
Madison Square Garden Boxing, Inc. v. Shavers, 562 F. 2d
141, 144 (CA2 1977).
In any event, the majority’s analysis plainly does not turn
on the belief that any defendant remains liable to potential
contempt sanctions and jail time. Instead, its animating
idea (uncritically borrowed from petitioners) is that Harper
I ’s “judgment” operated against the 2021 Act as a statute.
The majority describes Harper I ’s “judgment” interchange-
ably as “enjoining the use of the 2021 ma[p]” and “striking
down the 2021 pla[n].” Ante, at 7, 9. It then reasons that
reversing that “judgment” would “negate the force of its or-
der striking down the 2021 pla[n],” thus “alter[ing] the
presently operative statutes of North Carolina” such that
the 2021 Act would “again take effect.” Ante, at 7–8 (inter-
nal quotation marks omitted). The majority regards this
aspect of Harper I ’s “judgment” as entirely independent of
Harper III ’s final resolution of the claims in this case. See
ante, at 5–8, 10–11. And it finds its theory “confirm[ed]” by
a proviso in a remedial redistricting Act, passed immedi-
ately after Harper I, stating that the 2021 Act would “again
become effective” if this Court reversed Harper I. Ante, at
8 (internal quotation marks omitted). In short, the “case or
controversy” that the majority thinks is still before us has
nothing to do with the parties’ rights and liabilities on the
claims asserted in this action; rather, it is simply whether
12 MOORE v. HARPER
THOMAS, J., dissenting
a particular legislative Act, which Harper I supposedly
made inoperative, will again be “operative” or “effective” as
a state statute. Ante, at 7–8 (internal quotation marks
omitted).
This reasoning bears no connection to the judicial power
of this Court or the court below. Judicial power is the power
to adjudicate “definite and concrete” disputes “touching the
legal relations of parties having adverse legal interests,”
Rice, 404 U. S., at 246 (internal quotation marks omitted),
by “determin[ing] the respective rights and liabilities or du-
ties” of the parties before a court in a particular case, Ni-
cholson v. State Ed. Assistance Auth., 275 N. C. 439, 447,
168 S. E. 2d 401, 406 (1969). Thus, a judgment binds the
rights of the parties in that case, see Taylor, 553 U. S., at892–893, and it awards remedies that “operate with respect
to [those] specific parties,” California, 593 U. S., at ___ (slip
op., at 8) (internal quotation marks omitted). In deciding
any case, the court must “ascertai[n] and declar[e] the law
applicable to the controversy”; this duty, in turn, implies
“the negative power to disregard an unconstitutional enact-
ment” in deciding the case. Massachusetts v. Mellon, 262
U. S. 447, 488 (1923); accord, Nicholson, 275 N. C., at 447,
168 S. E. 2d, at 406; Marbury v. Madison, 1 Cranch 137,
176–178 (1803). But this negative power of judicial review
is not a “power per se to review and annul acts of [legisla-
tion] on the ground that they are unconstitutional,” Mellon,
262 U. S., at 488; “to change or to repeal statutes,” Person
v. Doughton, 186 N. C. 723, 725, 120 S. E. 481, 483 (1923);
or to issue orders that “operate on legal rules in the ab-
stract,” California, 593 U. S., at ___ (slip op., at 8) (internal
quotation marks omitted). Courts of law simply do not ren-
der “judgments” that toggle statutes from “operative” to “in-
operative” and back again, as if judicial review were some
sort of in rem jurisdiction over legislative Acts.
Indeed, such a conception would contradict the most basic
Cite as: 600 U. S. ____ (2023) 13
THOMAS, J., dissenting
premise of judicial review itself. “[A]n unconstitutional pro-
vision is never really part of the body of governing law,” for
“the Constitution automatically displaces [it] from the mo-
ment of [its] enactment.” Collins v. Yellen, 594 U. S. ___,
___ (2021) (slip op., at 35) (emphasis added). Thus, when a
court holds a statute unconstitutional, it is emphatically
not depriving it of any legal force that it previously pos-
sessed as an Act. The court is only deciding “a particular
case” “conformably to the constitution, disregarding” a stat-
ute that cannot “govern the case” because it is already
“void.” Marbury, 1 Cranch, at 178; accord, Bayard v. Sin-
gleton, 1 N. C. 5, 7 (1787) (holding that the unconstitutional
“act on which [a party’s] motion was grounded . . . must of
course, in that instance, stand as abrogated and without
any effect”). “That is the classic explanation for the basis of
judicial review” set forth in Marbury and Bayard, and it re-
mains “from that day to this the sole continuing rationale
for the exercise of this judicial power.” Mackey v. United
States, 401 U. S. 667, 678 (1971) (Harlan, J., concurring in
judgment in part and dissenting in part).
The majority’s theory thus fails twice over, both as a de-
scription of Harper I ’s “judgment” and as an explanation of
how any justiciable controversy could exist in this Court.
The only power that the North Carolina courts exercised at
any stage of this case was that of “determin[ing] the respec-
tive rights and liabilities or duties of litigants in [the] con-
troversy” before them. Nicholson, 275 N. C., at 447, 168
S. E. 2d, at 406. Harper I ’s judgment line did not read:
“Stricken down,” referring to the 2021 Act, but instead: “Re-
versed and remanded,” referring to the lower court judg-
ment and the case between these parties. 380 N. C., at 404,
868 S. E. 2d, at 560 (some capitalization deleted). The ju-
dicial power operates upon parties and cases, not statutes,
14 MOORE v. HARPER
THOMAS, J., dissenting
and Harper I was no exception.5
Even if it were, we would still have no case or controversy
in front of us. A freestanding “judgment” of statutory inval-
idation—neutralizing the 2021 Act in some manner trans-
cending the final determination of the parties’ respective
rights in this case—would not be a judicial action within the
meaning of Article III, and it could not be reviewed in this
Court. See Prentis v. Atlantic Coast Line Co., 211 U. S. 210,
226–227 (1908). “We sit as a court of law, not a council of
revision,” and “[o]ur powers of judicial review are judicial,
not legislative, in nature.” Mackey, 401 U. S., at 697 (opin-
ion of Harlan, J.). The only power that we ever could have
exercised here was to modify the adjudicated rights and li-
abilities of the parties with respect to the claims in this ac-
tion. Because we plainly cannot do so, no matter what we
think about the Elections Clause, this proceeding is moot.
——————
5 Nor did Harper III, despite agreeing with petitioners in all other re-
spects, anywhere endorse their belief that some “order striking down the
2021 [Act]” would survive a decision overruling Harper I and dismissing
this lawsuit with prejudice. Ante, at 5 (internal quotation marks omit-
ted). To the extent that the majority imputes that idea to Harper III, it
again seriously misreads that decision. See n. 3, supra. The majority
states that Harper III “did not reinstate the 2021 congressional pla[n]
that Harper I had struck down.” Ante, at 5 (citing Harper III, ___ N. C.,
at ___–___, 886 S. E. 2d, at 446–448). But the part of Harper III that the
majority cites had nothing to do with North Carolina’s congressional
plan. Instead, it considered whether two state-constitutional provisions,
which require that state-legislature districting plans “remain unaltered”
until the next census after they have become “established,” N. C. Const.,
Art. II, §§3(4) and 5(4), prevented the Assembly from revising the 2021
state plans that Harper I had rejected. See Harper III, ___ N. C., at ___–
___, 886 S. E. 2d, at 446–448. In determining that the 2021 state plans
were never “established,” Harper III did not mean that Harper I some-
how still restrains those plans; rather, it indicated that those plans them-
selves do not restrain the Assembly going forward. Absolutely nothing
in Harper III suggests that the North Carolina Supreme Court’s judg-
ments act directly upon legislative enactments—“striking them down”
today and “reinstating” them tomorrow—or that the 2021 congressional
map remains subject to any restraint left over from Harper I.
Cite as: 600 U. S. ____ (2023) 15
THOMAS, J., dissenting
And the idea that we could still decide petitioners’ moot fed-
eral defense because it could “alter the presently operative
statutes of North Carolina”—even if it cannot affect the ul-
timate judgment in this action—is wholly foreign to Article
III. Ante, at 7 (internal quotation marks omitted).
In that light, the post-Harper I remedial Act and its “trig-
ger provisio[n]” plainly can make no difference to our juris-
diction or lack thereof. Ante, at 8. When passed, that Act
was essentially a change in the State’s conduct under judi-
cial constraint (the result of Harper I ), but with the de-
clared intention of resuming the original conduct if that
constraint were removed. That declaration kept the contro-
versy alive while the constraint still existed, as in Hunt v.
Cromartie, 526 U. S. 541, 545, n. 1 (1999). But, after Har-
per III, there is no more constraint in this case. Harper I
has been overruled, and plaintiffs-respondents’ claims have
been dismissed in a final judgment. Nothing about this
case prevents the State from either enacting or implement-
ing any districting plan. If “the presently operative statutes
of North Carolina” need to be “alter[ed],” that is the General
Assembly’s job, not ours. Ante, at 7 (internal quotation
marks omitted). Regardless, petitioners have fully pre-
vailed in this case, and plaintiffs-respondents have not ob-
tained any enforceable relief that could affect the conduct
of future elections.
Indeed, to the extent the trigger provision adds anything
to the majority’s analysis, it only underscores the absence
of a justiciable case or controversy.6 A state legislature is
——————
6 I assume here that the majority is reading the provision correctly,
though it is far from clear that this is actually the case. As relevant, the
provision stated that the remedial redistricting plan “is effective contin-
gent upon its approval or adoption by the [trial court],” “unless the
United States Supreme Court or any other federal court reverses or stays
[Harper I ] . . . (or [Harper I ] is otherwise enjoined, made inoperable, or
ineffective), and in such case [the 2021 Act] is again effective.” 2022 N. C.
16 MOORE v. HARPER
THOMAS, J., dissenting
free to condition the effectiveness of a change in state law
on external events, including this Court’s actions in cases
properly before it. But, as should be obvious, such a trigger
provision cannot be the entire basis of an Article III case or
controversy. Where, as here, the Court cannot affect the
adjudicated rights and liabilities of the parties in the case
below, a state legislature cannot manufacture a justiciable
controversy by providing that state law will change in some
way depending on how this Court answers a moot question.
That would simply be a roundabout way of asking this
Court to render an advisory opinion. But “federal courts
cannot give answers simply because someone asks.” Uzueg-
bunam, 592 U. S., at ___ (ROBERTS, C. J., dissenting) (slip
op., at 12). That is true when the request comes from Con-
gress, see Muskrat v. United States, 219 U. S. 346, 360–361
(1911), and it is equally true when the request comes from
a state legislature.7
——————
Sess. Laws 3, p. 10, §2. The majority’s reading is based on three suppo-
sitions that it does not justify. The first is that this provision has any
reference at all to events after the 2022 elections, to which the remedial
Act was exclusively directed. The second is that the dependent clause
following “unless” is applicable even though, under the main clause, the
remedial plan was never “adopt[ed]” by the trial court and thus never
became “effective.” The third is that Harper III did not “otherwise . . .
ma[ke]” Harper I “inoperable, or ineffective.”
7 The idea of deciding an issue to determine whether a statute shall be
effective is not unprecedented, but the precedents do not aid the major-
ity. At times, state legislatures have enacted laws contingent on state-
court opinions approving their constitutionality—in fact, such legislation
produced the first two opinions addressing the Elections Clause question
here (which both reached the opposite conclusion from today’s majority).
See Act No. 5, 1863 Vt. Acts & Resolves p. 7, approved, Opinion of
Judges, 37 Vt. 665 (1864); 1864 N. H. Laws p. 3061, approved, In re Opin-
ions of Justices, 45 N. H. 595 (1864); see also In re Plurality Elections, 15
R. I. 617, 8 A. 881 (1887) (similar situation and conclusion). Those opin-
ions have always been understood as “advisory opinions.” See, e.g., In re
Constitutionality of House Bill 88, 115 Vt. 524, 528–529, 64 A. 2d 169,
171–172 (1949); Goodell v. Judith Basin County, 70 Mont. 222, 231, 224
Cite as: 600 U. S. ____ (2023) 17
THOMAS, J., dissenting
In sum, there is no issue before this Court that can affect
the judgment in this action. As such, the question pre-
sented is moot, and the writ of certiorari should be dis-
missed.
II
I would gladly stop there. The majority’s views on the
merits of petitioners’ moot Elections Clause defense are of
far less consequence than its mistaken belief that Article
III authorizes any merits conclusion in this case, and I do
not wish to belabor a question that we have no jurisdiction
to decide. Nonetheless, I do not find the majority’s merits
reasoning persuasive.
The Elections Clause of the Constitution provides that
“[t]he 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.” Art. I, §4, cl. 1. The
question presented was whether the people of a State can
place state-constitutional limits on the times, places, and
manners of holding congressional elections that “the Legis-
lature” of the State has the power to prescribe. Petitioners
said no. Their position rests on three premises, from which
the conclusion follows.
The first premise is that “the people of a single State” lack
any ability to limit powers “given by the people of the
United States” as a whole. McCulloch v. Maryland, 4
Wheat. 316, 429 (1819). This idea should be uncontrover-
sial, as it is “the unavoidable consequence of th[e] suprem-
acy” of the Federal Constitution and laws. Id., at 436. As
the Court once put it (in a case about the Article V ratifying
power of state legislatures), “a federal function derived from
the Federal Constitution . . . transcends any limitations
——————
P. 1110, 1112 (1924). Such advisory opinions may be authorized by some
state constitutions, but Article III gives this Court no such power.
18 MOORE v. HARPER
THOMAS, J., dissenting
sought to be imposed by the people of a State.” Leser v.
Garnett, 258 U. S. 130, 137 (1922).
The second premise is that regulating the times, places,
and manner of congressional elections “ ‘is no original pre-
rogative of state power,’ ” so that “such power ‘had to be del-
egated to, rather than reserved by, the States.’ ” Cook v.
Gralike, 531 U. S. 510, 522 (2001) (first quoting 1 J. Story,
Commentaries on the Constitution of the United States
§627 (3d ed. 1858) (Story); then quoting U. S. Term Limits,
Inc. v. Thornton, 514 U. S. 779, 804 (1995)). This premise
is firmly supported by this Court’s precedents, which have
also held that the Elections Clause is “the exclusive delega-
tion of ” such power, as “[n]o other constitutional provision
gives the States authority over congressional elections.”
Cook, 531 U. S., at 522–523; see also United States v. Clas-
sic, 313 U. S. 299, 315 (1941) (“While, in a loose sense, the
right to vote for representatives in Congress is sometimes
spoken of as a right derived from the states, this statement
is true only in the sense that the states are authorized by
the Constitution, to legislate on the subject as provided by
[the Elections Clause]” (citations omitted)).
The third premise is that “the Legislature thereof ” does
not mean the people of the State or the State as an undif-
ferentiated body politic, but, rather, the lawmaking power
as it exists under the State Constitution. This premise com-
ports with the usual constitutional meanings of the words
“State” and “Legislature,” as well as this Court’s prece-
dents. “A state, and the legislature of a state, are quite dif-
ferent political beings.” Story §628. “A state, in the ordi-
nary sense of the Constitution, is a political community of
free citizens . . . organized under a government sanctioned
and limited by a written constitution.” Texas v. White, 7
Wall. 700, 721 (1869). “ ‘Legislature,’ ” on the other hand,
generally means “ ‘the representative body which ma[kes]
the laws of the people.’ ” Smiley v. Holm, 285 U. S. 355, 365
(1932) (quoting Hawke v. Smith, 253 U. S. 221, 227 (1920)).
Cite as: 600 U. S. ____ (2023) 19
THOMAS, J., dissenting
To be sure, the precise constitutional significance of the
word “Legislature” depends on “the function to be per-
formed” under the provision in question. Smiley, 285 U. S.,
at 365. Because “the function contemplated by” the Elec-
tions Clause “is that of making laws,” id., at 366, this
Court’s Elections Clause cases have consistently looked to
a State’s written constitution to determine the constitu-
tional actors in whom lawmaking power is vested. See Ar-
izona State Legislature v. Arizona Independent Redistrict-
ing Comm’n, 576 U. S. 787, 795–796, 814 (2015); Smiley,
285 U. S., at 363; Ohio ex rel. Davis v. Hildebrant, 241 U. S.
565, 566–568 (1916).8 The definitions that most precisely
explain this Court’s holdings were given in a state-court
case that anticipated Hildebrant and Smiley by several
years: “[T]he word ‘Legislature,’ as used in [the Elections
Clause] means the lawmaking body or power of the state,
as established by the state Constitution,” or, put differently,
“that body of persons within a state clothed with authority
——————
8 The only complications with this approach have arisen where a State
Constitution did not vest the legislative power wholly in a single repre-
sentative body, as the Federal Constitution appears to presuppose.
Thus, in Hildebrant, the Court rejected as nonjusticiable an argument
“that to include the referendum within state legislative power for the
purpose of apportionment” was “repugnant to” the Elections Clause. 241
U. S., at 569. Somewhat similarly, in Arizona State Legislature, the
Court faced a State Constitution “in which the people of a State exercise
legislative power coextensive with the authority of an institutional legis-
lature,” 576 U. S., at 819, with the majority “see[ing] no constitutional
barrier to a State’s empowerment of its people by embracing that form of
lawmaking,” id., at 808–809. As relevant to identifying the State’s “Leg-
islature,” the majority opinion emphasized that Arizona’s written Con-
stitution “ ‘establishes the electorate of Arizona as a coordinate source of
legislation’ on equal footing with the representative legislative body,” id.,
at 795 (alteration omitted), and thus held that “lawmaking power in Ar-
izona includes the initiative process,” id., at 793; see also id., at 814. No
such complications exist in North Carolina, where the State Constitution
simply provides that “[t]he legislative power of the State shall be vested
in the General Assembly.” Art. II, §1.
20 MOORE v. HARPER
THOMAS, J., dissenting
to make the laws.” State ex rel. Schrader v. Polley, 26 S. D.
5, 10–11, 127 N. W. 848, 850–851 (1910).
If these premises hold, then petitioners’ conclusion fol-
lows: In prescribing the times, places, and manner of con-
gressional elections, “the lawmaking body or power of the
state, as established by the state Constitution,” id., at 10,
127 N. W., at 850, performs “a federal function derived from
the Federal Constitution,” which thus “transcends any lim-
itations sought to be imposed by the people of a State,” Le-
ser, 258 U. S., at 137. As shown, each premise is easily sup-
ported and consistent with this Court’s precedents.
Petitioners’ conclusion also mirrors the Court’s interpreta-
tion of parallel language in the Electors Clause9 in McPher-
son v. Blacker, 146 U. S. 1 (1892): “[T]he words, ‘in such
manner as the legislature thereof may direct,’ ” “operat[e]
as a limitation upon the State in respect of any attempt to
circumscribe the legislative power.” Id., at 25.10
The majority rejects petitioners’ conclusion, but seem-
ingly without rejecting any of the premises from which that
conclusion follows. Its apparent rationale—that Hilde-
brant, Smiley, and Arizona State Legislature have already
foreclosed petitioners’ argument—is untenable, as it re-
quires disregarding a principled distinction between the is-
sues in those cases and the question presented here. In
those cases, the relevant state-constitutional provisions ad-
dressed the allocation of lawmaking power within each
——————
9 The Electors Clause provides that “[e]ach State shall appoint, in such
Manner as the Legislature thereof may direct, a Number of Electors” for
the election of the President and Vice President. Art. II, §1, cl. 2.
10 Contrary to the majority’s suggestion of ambiguity, see ante, at 20,
this statement can only have meant that the state legislature’s power to
direct the manner of appointing electors may not be limited by the state
constitution. No other “limitation upon the State” is possible, for, as the
McPherson Court said just a few sentences earlier, “the constitution of
the State” is the only “authority” that ordinarily “limit[s]” “[t]he legisla-
tive power.” 146 U. S., at 25.
Cite as: 600 U. S. ____ (2023) 21
THOMAS, J., dissenting
State; they defined what acts, performed by which constitu-
tional actors, constituted an “exercise of the lawmaking
power.” Smiley, 285 U. S., at 364; cf. U. S. Const., Art. I, §7,
cl. 2 (describing the processes upon completion of which a
bill “become[s] a Law”). In other words, those cases ad-
dressed how to identify “the Legislature” of each State. But,
nothing in their holdings speaks at all to whether the peo-
ple of a State can impose substantive limits on the times,
places, and manners that a procedurally complete exercise
of the lawmaking power may validly prescribe. These are
simply different questions: “There is a difference between
how and what.” J. Kirby, Limitations on the Power of State
Legislatures Over Presidential Elections, 27 Law & Con-
temp. Prob. 495, 503 (1962).
This is not an arbitrary distinction, but one rooted in the
logic of petitioners’ argument. No one here contends that
the Elections Clause creates state legislatures or defines
“the legislative process” in any State. Smiley, 285 U. S., at
369. Thus, while the Elections Clause confers a lawmaking
power, “the exercise of th[at] authority must” follow “the
method which the State has prescribed for legislative en-
actments.” Id., at 367. But, if the power in question is not
original to the people of each State and is conferred upon
the constituted legislature of the State, then it follows that
the people of the State may not dictate what laws can be
enacted under that power—precisely as they may not dic-
tate what constitutional amendments their legislatures can
ratify under Article V. See Leser, 258 U. S., at 137.11 Ac-
——————
11 The majority states that Smiley “already distinguished” Leser as in-
volving a nonlawmaking function. Ante, at 21. But Smiley distinguished
the “electoral,” “ratifying,” and “consenting” functions of state legisla-
tures from their “lawmaking” function under the Elections Clause, 285
U. S., at 365–366, only to explain why the last function must be “exer-
22 MOORE v. HARPER
THOMAS, J., dissenting
cordingly, if petitioners’ premises hold, then state constitu-
tions may specify who constitute “the Legislature” and pre-
scribe how legislative power is exercised, but they cannot
control what substantive laws can be made for federal elec-
tions.
The majority indicates that it does not perceive this dis-
tinction between “substantive” and “procedural” rules, see
ante, at 23–24,12 illustrating its doubts with a rhetorical
question: “When a governor vetoes a bill because of a disa-
greement with its policy consequences, has the governor ex-
ercised a procedural or substantive restraint on lawmak-
ing?” Ante, at 24. The answer is straightforward: The
power of approving or vetoing bills is “a part of the legisla-
tive process” because it is “a part in the making of state
laws.” Smiley, 285 U. S., at 368–369; see also INS v.
Chadha, 462 U. S. 919, 933, 951, 954, 957, n. 22, 958 (1983)
(repeatedly referring to bicameralism and presentment as
——————
cise[d] . . . in accordance with the [State’s] method . . . for legislative en-
actments,” id., at 367, including “the participation of the Governor wher-
ever the state constitution provided for such participation as part of the
process of making laws,” id., at 370. Nothing in Smiley even hints that
a federally delegated power fails to “transcen[d] limitations sought to be
imposed by the people of a State” simply because it is a lawmaking func-
tion. Leser, 258 U. S., at 137.
12 This admission carries troubling implications for other fields, as
comparable “distinction[s] between procedure and substance [are] not
unknown in the law.” United States v. Kras, 409 U. S. 434, 463, n. 6
(1973) (Marshall, J., dissenting). For example, our habeas corpus juris-
prudence has long distinguished “substantive” constitutional rules from
“procedural” ones. Schriro v. Summerlin, 542 U. S. 348, 352, 353 (2004).
Our sentencing appellate review jurisprudence similarly recognizes a
distinction between the “procedura[l] sound[ness]” of a sentencing deci-
sion and “the substantive reasonableness of the sentence imposed.” Gall
v. United States, 552 U. S. 38, 51 (2007). And, no less essential a statute
than the Rules Enabling Act presupposes a meaningful distinction be-
tween “rules of practice and procedure” and matters of “substantive
right.” 28 U. S. C. §§2072(a) and (b). Indeed, the constitutionality of the
Act rests upon this very distinction. See Hanna v. Plumer, 380 U. S. 460,
470–472 (1965); Sibbach v. Wilson & Co., 312 U. S. 1, 9–10 (1941).
Cite as: 600 U. S. ____ (2023) 23
THOMAS, J., dissenting
the “procedure” or “procedures” of lawmaking). A Gover-
nor’s motives for vetoing a certain bill are irrelevant to the
effect of the veto as part of the legislative process, just as
the motives that may lead one house of the legislature to
reject a bill passed by the other house are irrelevant to the
effect of its doing so. Put simply, when this power is con-
ferred on the Governor of a State, it “makes him in effect a
third branch of the legislature.” T. Cooley, General Princi-
ples of Constitutional Law 50 (1880) (emphasis added); ac-
cord, Arizona State Legislature, 576 U. S., at 833 (ROBERTS,
C. J., dissenting) (noting that “approving [and] vetoing
bills” are “legislative functions”); Chadha, 462 U. S., at 947(explaining that “lawmaking” is “a power . . . shared by both
Houses and the President”); La Abra Silver Mining Co. v.
United States, 175 U. S. 423, 453 (1899) (noting that Presi-
dential approval “is legislative in its nature”); cf. 1 W.
Blackstone, Commentaries on the Laws of England 150
(1765) (“[T]he king is himself a part of the parliament”).
This is a question of who, not what, and thus is “a matter of
state polity” as far as the Elections Clause is concerned.
Smiley, 285 U. S., at 368.
But substantive constraints on what the lawmaking
power can do (gubernatorial approval included) demand an
entirely different justification—one that the majority never
provides. It does not overrule Cook and Thornton to hold
that the power to prescribe times, places, and manners for
congressional elections is an original power of the people of
each State. Nor does it hold that the people are themselves
“the Legislature” to which the Federal Constitution dele-
gates that power. See ante, at 17–18. Indeed, the majority
devotes little attention to the source and recipient of the
power described in the Elections Clause, notwithstanding
their direct relevance to the question presented.
Instead, the majority focuses on the power of state courts
to exercise “judicial review” of Elections Clause legislation.
See ante, at 11–15, 26–30. But that power sheds no light
24 MOORE v. HARPER
THOMAS, J., dissenting
on the question presented. In every case properly before it,
any court—state or federal—must ascertain and apply the
substantive law that properly governs that case. Thus, the
court naturally must apply the Federal Constitution rather
than any statute in conflict with it. The court must also
apply the state constitution over any conflicting statute en-
acted under a power limited by that constitution. Petition-
ers’ argument, however, is that legislation about the times,
places, and manner of congressional elections is not limited
by state constitutions—because the power to regulate those
subjects comes from the Federal Constitution, not the peo-
ple of the State. Right or wrong, this question has nothing
to do with whether state courts have the power to conduct
judicial review in the first place. To say that “state judicial
review” authorizes applying state constitutions over con-
flicting Elections Clause legislation, ante, at 15, is simply to
assume away petitioners’ argument.
III
The majority opinion ends with some general advice to
state and lower federal courts on how to exercise “judicial
review” “in cases implicating the Elections Clause.” Ante,
at 28. As the majority offers no clear rationale for its inter-
pretation of the Clause, it is impossible to be sure what the
consequences of that interpretation will be. However, judg-
ing from the majority’s brief sketch of the regime it envi-
sions, I worry that today’s opinion portends serious troubles
ahead for the Judiciary.
The majority uses the separate writings in Bush v. Gore,
531 U. S. 98 (2000) (per curiam), as a loose touchstone for
the kind of judicial review that it apparently expects federal
courts to conduct in future cases like this one. On its face,
this is an awkward analogy, for there is a significant differ-
ence between Bush and Harper I. In Bush, the state court’s
judgment was based on an interpretation of state statutory
law, enacted by the state legislature. Thus, the relevant
Cite as: 600 U. S. ____ (2023) 25
THOMAS, J., dissenting
Electors Clause question was whether, in doing so, the state
court had departed from “the clearly expressed intent of the
legislature,” 531 U. S., at 120 (Rehnquist, C. J., concur-
ring), “impermissibly distort[ing]” the legislature’s enact-
ments “beyond what a fair reading required,” id., at 115. In
Harper I, by contrast, there was no doubt that the state
court departed from the clearly expressed intent of the leg-
islature; it rejected the legislature’s enactment as unconsti-
tutional.
By doing so, today’s majority concludes, Harper I did not
commit per se error, as the Elections Clause permits state
courts to apply substantive state-constitutional provisions
to the times, places, and manner of federal elections. At the
same time, state courts are warned that they operate under
federal-court supervision, lest they “transgress the ordi-
nary bounds of judicial review such that they arrogate to
themselves the power vested in state legislatures to regu-
late federal elections.” Ante, at 29. Thus, under the major-
ity’s framework, it seems clear that the statutory-
interpretation review forecast in Bush (or some version of
it) is to be extended to state constitutional law.
In this way, the majority opens a new field for Bush-style
controversies over state election law—and a far more un-
certain one. Though some state constitutions are more
“proli[x]” than the Federal Constitution, it is still a general
feature of constitutional text that “only its great outlines
should be marked.” McCulloch, 4 Wheat., at 407. When “it
is a constitution [courts] are expounding,” ibid., not a de-
tailed statutory scheme, the standards to judge the fairness
of a given interpretation are typically fewer and less defi-
nite.
Nonetheless, the majority’s framework appears to de-
mand that federal courts develop some generalized concept
of “the bounds of ordinary judicial review,” ante, at 28; ap-
ply it to the task of constitutional interpretation within
each State; and make that concept their rule of decision in
26 MOORE v. HARPER
THOMAS, J., dissenting
some of the most politically acrimonious and fast-moving
cases that come before them. In many cases, it is difficult
to imagine what this inquiry could mean in theory, let alone
practice. For example, suppose that we were reviewing
Harper I under this framework. Perhaps we could have de-
termined that reading justiciable prohibitions against par-
tisan gerrymandering into the North Carolina Constitution
exceeded the bounds of ordinary judicial review in North
Carolina; perhaps not. If not, then, in order to ensure that
Harper I had not “arrogate[d]” the power of regulating fed-
eral elections, ante, at 29, we would presumably have
needed to ask next whether it exceeded the bounds of ordi-
nary judicial review in North Carolina to find that the spe-
cific congressional map here violated those prohibitions. Af-
ter all, in constitutional judgments of this kind, it can be
difficult to separate the rule from the fact pattern to which
the rule is applied. We have held, however, that federal
courts are not equipped to judge partisan-gerrymandering
questions at all. Rucho v. Common Cause, 588 U. S. ___,
___ (2019) (slip op., at 30). It would seem to follow, a forti-
ori, that they are not equipped to judge whether a state
court’s partisan-gerrymandering determination surpassed
“the bounds of ordinary judicial review.”
Even in cases that do not involve a justiciability mis-
match, the majority’s advice invites questions of the most
far-reaching scope. What are “the bounds of ordinary judi-
cial review”? What methods of constitutional interpreta-
tion do they allow? Do those methods vary from State to
State? And what about stare decisis—are federal courts to
review state courts’ treatment of their own precedents for
some sort of abuse of discretion? The majority’s framework
would seem to require answers to all of these questions and
more.
In the end, I fear that this framework will have the effect
of investing potentially large swaths of state constitutional
law with the character of a federal question not amenable
Cite as: 600 U. S. ____ (2023) 27
THOMAS, J., dissenting
to meaningful or principled adjudication by federal courts.
In most cases, it seems likely that the “the bounds of or-
dinary judicial review” will be a forgiving standard in
practice, and this federalization of state constitutions will
serve mainly to swell federal-court dockets with state-
constitutional questions to be quickly resolved with generic
statements of deference to the state courts. On the other
hand, there are bound to be exceptions. They will arise hap-
hazardly, in the midst of quickly evolving, politically
charged controversies, and the winners of federal elections
may be decided by a federal court’s expedited judgment that
a state court exceeded “the bounds of ordinary judicial re-
view” in construing the state constitution.
I would hesitate long before committing the Federal Ju-
diciary to this uncertain path. And I certainly would not do
so in an advisory opinion, in a moot case, where “the only
function remaining to the court is that of announcing the
fact and dismissing the cause.” Ex parte McCardle, 7 Wall.
506, 514 (1869).
I respectfully dissent.