Moore v. Harper
Oral argument transcript · No. 21-1271 · October Term 2022 · argued December 7, 2022 · the respondent won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- David H. Thompson, Washington, D.C., for the petitioner
- Neal K. Katyal, Washington, D.C., for the respondent
- Donald B. Verrilli Jr., Washington, D.C., for the respondent
- Elizabeth B. Prelogar, Solicitor General of the United States, amicus curiae supporting the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument this morning in Case 21-1271, Moore versus Harper. Mr. Thompson. ORAL ARGUMENT OF DAVID H. THOMPSON ON BEHALF OF THE PETITIONERS
David H. Thompson: Mr. Chief Justice, and may it please the Court: The Elections Clause requires state legislatures specifically to perform the federal function of prescribing regulations for federal elections. States lack the authority to restrict the legislatures' substantive discretion when performing this federal function. As Alexander Hamilton wrote in Federalist 78, the scope of legislative authority is governed by the commission under which it is exercised. Here, that commission is contained in the United States Constitution, and it is federal law alone that places substantive restrictions on states' legislatures performing the tasks assigned them by the federal Official 1 Constitution. The most prominent discussion of the Elections Clause in the early republic occurred during Massachusetts' 1820 Constitutional Convention. Joseph Story, then a sitting Justice on this Court, explained that a proposed constitutional amendment requiring representatives to be elected in districts would violate the Elections Clause because that clause vested state legislatures "with an unlimited discretion in the subject." Justice Story's view was an echo of Alexander Hamilton's father-in-law, Senator Philip Schuyler, who took the exact same position on behalf of the entire New York State Senate just one month after the ratification of the Constitution. And for the first 140 years of the republic, there was not a single state court that invalidated on substantive grounds any congressional redistricting plan. This Court's decision in Leser teaches that the Founders tasked state legislatures with federal functions that transcend any substantive limitation sought to be imposed by the people of the state. Official 1 And I welcome the Court's questions.
Justice Thomas: Counsel, this case is from a state supreme court that interpreted and applied a state constitution. So it would be -- help -- be helpful if you would take some time to explain what we're -- what exactly we are reviewing, what decision we're reviewing, and what is the basis of our jurisdiction.
David H. Thompson: Yes, Your Honor. Thank you. So the Court is reviewing the decision -- there was an order on February 4th of the North Carolina Supreme Court, and it was accompanied 10 days later by a written opinion, and in that written opinion, there was a liability determination that the Elections Clause did not apply, and, importantly, there was also a remedial determination -- and we can see this at Petition Appendix 142 -- where it empowered the North Carolina Supreme Court, empowered the lower state court to draw the maps if necessary. And so that is a final order of the North Carolina Supreme Court, and it passed on the relevant questions. In addition, there's a second final order, which is, on February 23rd, there was a Official 1 denial of a stay application, and that too is -- is a final order of this Court.
Justice Thomas: We don't normally review state supreme courts' interpretations of state constitutions, so what I'm looking for is why -- for example, if this were a case about a state legislator -- or legislative district, it would be doubtful that you'd be here under the state constitution. So I'm looking for an explanation as to why this case is here and what's the jurisdiction for this case. How does it differ from a purely state case?
David H. Thompson: Well, Your Honor, our -- our position on the merits is to take as given state law as interpreted by the North Carolina Supreme Court. 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, and when one does that, we see that there's a violation of the Elections Clause, and -- and that's why we're here.
Chief Justice Roberts: You concede that state legislative action under the Elections Clause is subject to the governor's Official 1 veto, right?
David H. Thompson: Yes, Your Honor.
Chief Justice Roberts: Well, the governor is not part of the legislature. Why is -- why -- why do you concede that point?
David H. Thompson: Well, Your Honor, first of all, we're not here to relitigate Smiley. We're -- we're prepared to accept all the Court's precedents, number one. Number two, I think the -- the Arizona dissent pointed out that Samuel Johnson defined "legislature" by reference to Matthew Hale's definition, where he said the three branches of the legislature, the two Houses of Parliament and the king, because it was understood at the time of the founding New York and Massachusetts had gubernatorial veto. So it was understood that the -- the governor had a role to play at the time of the founding, and at least it's arguably grounded in the text.
Chief Justice Roberts: Well, given Smiley, if your concession doesn't undermine your position, doesn't Smiley? I mean, that's a pretty significant exception. You have otherwise a very categorical case, and it's sort Official 1 of, well, with this one exception. But vesting the power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants.
David H. Thompson: Well, Your Honor, that's a procedural limitation. And as we understood Smiley, it was talking about defining the legislative power. And, here, we have a separate issue. We have trying to limit that legislative power. So however the legislative power is defined under Arizona, under Smiley, we are not -- you know, we -- we can take those precedents as given. But what can't happen is there can't be a substantive limitation by some in power.
Chief Justice Roberts: Well, just last -- and last question at least for a while: Why do you say it's procedural? Let's say the governor is opposed to the legislative action with respect to the elections than -- that the legislature endorses. He's the opposite political party, has a whole different view, and says -- you know, gives a speech saying, you know, it's wrong because of this, not because of procedure. Official 1 That strikes me as saying, oh, you know, they're supposed to have, you know, two votes on it or whatever and they didn't or, you know, it's a -- they need a committee report. That sort of thing is procedure. Straight out veto, we really don't know what it is.
David H. Thompson: We're proposing a formalistic test for procedural, which is, is it a step, a hoop that needs to be jumped through? And if presentment is one of the hoops that the state legislature needs to jump through, then, under a formalistic approach that we're suggesting, then that would be procedural, Your Honor.
Justice Barrett: Is that -- I'm sorry. Please finish.
David H. Thompson: I'm good.
Justice Barrett: I was just going to ask, is your formalistic test just a way of trying to deal with our precedent, or are you rooting that in the Constitution itself? Because you do have a problem with explaining why these procedural limitations are okay but substantive limitations are not.
David H. Thompson: Well, Your Honor, we -- Official 1 we certainly have tried to craft an argument that is consistent with all of the Court's precedents, but we think that it -- it's -- there -- there are good reasons why there would be a substantive limitation even if not a procedural limitation. We can see this in James Madison's remarks. I would refer the Court to the third volume of Elliot's Debates, page 367, where James Madison laments partisan gerrymandering, and he singles out one state, South Carolina, for opprobrium for their partisan gerrymander. And their partisan gerrymander was found right in the state constitution. And that's the rule that my friends on the other side are advocating for. They're saying you can have a partisan gerrymander, but you have to put it in the state constitution.
Justice Barrett: So that's not so much -- your argument then on this procedural/substantive distinction is not so much a matter of the text, that it's you're pulling some things from the history and saying that James Madison's comment supports this procedural/substantive line? Official
David H. Thompson: Well, we -- we ground it in precedent, Your Honor, and -- and text and structure and history. So I'll take those one at a time if I may.
Justice Barrett: Sure.
David H. Thompson: So the precedent would be Smiley on the one hand seems to suggest that procedural limitations can be circumscribed on the legislature, and Palm Beach County, as we read it, teaches that substantive limits cannot be placed on a state legislature. So that's the precedent. In terms of the text, I think all of us agree, Your Honor, that it's a law-making function and so -- and the text shows that where it says prescribe regulations, this is the -- the law-making function, and so it makes sense the Founders structurally would have said, okay, there's a pre-existing entity, the state con- -- the state legislature, and we're going to have that be bound by its procedures, but we're going to have federal substantive limitations, and you can see this with state courts. State courts --
Justice Jackson: But can I ask you a question? Can I ask you a question, because Official 1 you -- you -- you suggest that there's this thing called the legislature that the Framers were familiar with, and I'm trying to understand why what counts as the legislature isn't a creature of state constitutional law.
David H. Thompson: Well, Your Honor, I -- I think this Court in Arizona did say that the states have a lot of flexibility in terms of defining what state legislature means, but what Arizona did not say is that there could be substantive limitations.
Justice Jackson: But -- but -- well, I don't understand how that's a different thing. In other words, if the state constitution tells us what the state legislature is and what it can do and who gets on it and what the scope of legislative authority is, then, when the state supreme court is reviewing the actions of an entity that calls itself the legislature, why isn't it just looking to the state constitution and doing exactly the kind of thing you say when you -- when you admitted that this is really about what authority the legislature has? In other words, the authority comes from the state constitution, doesn't it? Official
David H. Thompson: No, Your Honor, it's a federal function, we know that from Leser. So this Court in Leser held it's a federal function. When these duties are assigned to the states, that is a duty that is assigned by the federal --
Justice Jackson: Yes, it's a duty. The duty is to make this legislative determination, that is, the determination about elections. My question is, where does the entity's power come from to make any determinations at all, right? I mean, yes, I see that the federal Constitution is giving them the right to make a particular determination, but they're not giving just anybody in the state that right. They're giving somebody called the legislature, and, in order for us to have a thing called the legislature, we have to look at the state constitution to determine where those -- you know, what that entity's powers is -- are -- are, how they can be exercised. Other than that, I don't really understand how the legislature is authorized to act at all. Official
David H. Thompson: Well, Your -- Your Honor, we know that's not right because, in Leser, the people of Maryland tried to prevent women from voting, and the way they did that is they put in their state constitution a prohibition on adopting the Nineteenth Amendment, and then it came to this Court and this Court said that this is a federal function and that substantive limit of the state constitution was inapplicable. So that's what we're dealing with here, is a federal function.
Justice Sotomayor: But that was because it -- it violated the federal Constitution, not because it violated the state constitution. But let me go back to what I don't fundamentally understand about this case. The text of the Constitution of the Elections Clause says the legislature in each state shall prescribe "the time, place, and manner" of elections. We know that before the founding, at the founding of the Constitution, decades after, and even to today that state constitutions have regulated time, place, and manner. We have the voice votes. We have one constitution that set Official 1 elections at the courthouse and not in the county where the legislature wanted it. We have laws about voice votes as opposed to ballot votes. It seems to me that if I'm a textualist and I read that the legislature in each state shall prescribe "the time, place, and manner" of elections that your argument would have to be that you can't regulate -- the state constitution can't regulate that. But there is no substantive limitation in the Constitution. And the Tenth Amendment says the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people. And if there's no substantive limitation in the Elections Clause, I don't know how we could read one in.
David H. Thompson: Your Honor, so I think there are a few points there --
Justice Sotomayor: It's a reserved power to the states to decide whether apportionment or malapportionment should be prohibited. We've already had a case, Growe, by Justice Scalia, who said that that was perfectly Official 1 okay for a state constitution to prohibit malapportionment. Under your theory, the state constitution shouldn't have been permitted to do that substantive thing. So explain it to me.
David H. Thompson: Yes. So let me start with where Your Honor started, which was with the history, and we read the history very differently than my friends on the other side because it's -- they point to 16 constitutions early in the founding of the republic that they claim regulate federal elections. Five of those relate to transitional governments. There was no state legislature. So it would have been impossible for the state legislature to adopt the first rules, and by their own terms, they were schedules that faded away once the state legislature had been elected. Then that leaves nine which say -- that have regulations relating to --
Justice Sotomayor: There were only 13.
David H. Thompson: Well, I -- I'm giving them credit -- Official
Justice Sotomayor: There were 13 colonies, counselor. If I got six of them doing something that's contrary to what you're saying, that seems like a fairly substantial majority to me.
David H. Thompson: Well, Your Honor, I -- I'm going to get --
Justice Sotomayor: You can -- you can try to knock them down one at a time, but you're still with about six of them that can't be disputed.
David H. Thompson: I -- I'm going to knock them all down with one, so it'll be 12 to 1 in my favor by the time I'm done, Your Honor.
Justice Sotomayor: Yes. If you rewrite history, it's very easy to do.
David H. Thompson: I'm not rewriting history, Your Honor. What we're saying is that when it says all elections, it's referring to the offices that were created by that constitution. You can see that in Vermont. It says all freeholders shall be eligible for office. It's not talking about the presidency of the United States because there's an age Official 1 qualification. It's talking about the --
Justice Sotomayor: So why is it that in all of those states the legislatures understood that all elections meant that you were going to have paper elections, ballots, in both federal and congressional?
David H. Thompson: I -- I think it is telling what those state legislatures understood, and if we look at Pennsylvania and Tennessee, they took those all elections shall be by ballot and they promulgated two statutes to implement -- to implement and regulate their -- their elections laws. For the state ones, they passed a law saying all elections shall be by ballot for the state races, and they cited back to those state constitutional provisions. And then they passed a separate law for the federal elections and they did not cite back to that provision. Why not? Because, presumably, they understood that they were not bound by that, but they were simply trying to harmonize --
Justice Sotomayor: That -- that -- that is a large step, counsel.
Justice Barrett: Mr. Thompson -- Official
David H. Thompson: Yeah.
Justice Barrett: -- if I can just piggyback quickly on Justice Sotomayor's question. At the outset, Justice Sotomayor said, you know, pointing to the Tenth Amendment and other structural assumptions of the Constitution, that we presume that states possess power unless they've given it up. So this is my question about the Elections Clause. If it did not appear in the Constitution, would the baseline assumption have been that the states possess the power to regulate elections for federal office anyway? Because, if so, I don't see how it's a delegation as suppose -- as opposed to a clause that clips state authority perhaps by saying it must be exercised by the legislature and by giving Congress the power of override. But I wouldn't describe that as a delegation if the states had the baseline power to start.
David H. Thompson: Your Honor, in U.S. Term Limits, this Court held -- the majority held that it was a delegation of power from the federal government. We understand that there are members Official 1 of the Court who take the opposite view, who say no, it was a reserved power and it was -- and -- and it's protected by the Tenth Amendment. And nothing in our argument today depends upon the resolution of that debate which we understand is ongoing on the Court. What we're saying is, regardless of whether it was a delegated power or a reserved power or maybe both, where they reserved it and it was given to them, regardless of how one resolves that, it is a federal function. That's what Leser teaches. It's a federal function. And if we go back to the words of Alexander Hamilton, you look in for purposes of judicial review of what's the commission that this power is, and the commission means mandate. That's how Samuel Johnson defined "commission." And the mandate comes from the federal Constitution. Your Honor, I'd like to go back to your question about structure. You know, you had asked me where are we getting this distinction between substance and procedure, and I had mentioned precedent, and I had said there was a lawmaking function in the text, and I was Official 1 getting to the structure. The structure is -- is a familiar one. We obviously see the Founders, in cases like Leser, taking that preexisting state legislature and assigning a federal function to it, but we also see it in state courts, state courts bound by state procedures and yet having exclusive federal question jurisdiction until 1875. So this was a structure that was understood by the Founders to take an existing entity with existing procedures but to empower it to exercise federal authority, and -- and that's what we see. And that's what Joseph Story, in 1820, when he rises and eloquently, you know, speaks as to why there can't be a limit on the power, it's because it's a federal function. And I think Joseph Story's speech in 1820 is relevant too with respect to what do all elections mean, because the Massachusetts Constitution of 1780 had a provision that says all elections shall be free.
Justice Jackson: Can I ask you a question about it being a federal function? So is it your argument that the state constitution Official 1 has no role to play, period?
David H. Thompson: In terms of imposing substantive limits --
Justice Jackson: Mm-hmm.
David H. Thompson: -- on the exercise of that federal function, that is our position.
Justice Jackson: So what are -- what procedural limits can the state constitution impose in this context?
David H. Thompson: Presentment would be a -- a limitation. So Smiley teaches that if there's if -- if it requires presentment to the governor so that the governor can veto it, then that would be a -- a procedural limitation that can be imposed by the state constitution.
Justice Kagan: Mr. Thompson, I mean, why doesn't Smiley stand for maybe a broader but simpler proposition, which is, when we under -- when we think about this word "legislature," we're thinking about it as embedded in a system of constraints, and one of those constraints is the governor, and another of those constraints is the courts. And that's the normal way that legislatures operate and act, is as subject, not as absolute, but as subject to constraints. And Official 1 Smiley said we take that system as we find it. We take the constraint of the governor as we find it. Why not too then the constraint of the courts?
David H. Thompson: We -- we agree, Your Honor, the -- the constraint of the court applying federal law. That's the teaching of Palm Beach County as we read that case. There was a vacatur of the Florida Supreme Court to send it back after having cited --
Justice Kagan: But it would be ordinary constraints, and the constraints can come from the federal Constitution or the constraints can come from the state constitutions. State actors, state courts, operate in both spheres and do both things, and that's the ordinary operation of the courts. And that's what Smiley says. It's the legislature subject to the ordinary set of constraints that operate on them.
David H. Thompson: We read Leser to teach that when it's -- the ordinary constraint is federal law that it's bound by federal law. That's the ordinary constraint.
Justice Kagan: Well, if that's coming Official 1 from Leser, I mean -- so then you're going to sort of our precedent, and I would think that our precedent gives you a lot of problems, I mean, if you really take every statement that this Court has said about the matter at hand. I'll just read you a few of them and they're -- they're pretty recent, you know? Smiley is the one we've been talking about, and that says, just as Congress is subject to limitations in the federal Constitution, when it makes laws -- and now I'm quoting -- "there is no intimation of a purpose to exclude a similar restriction imposed by state constitutions upon state legislatures." And then, in Arizona, we say nothing in the Elections Clause instructs and this Court has never held that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the state's constitution. And on -- as to that point, the dissent was right with the majority. So both of them took issue with the proposition that legislatures would exercise their authority without the constitutional checks that a state Official 1 court provides. And then, in Rucho, three years ago, the Court assured everybody in a case very much like this one, it was a case about gerrymandering, and it says complaints about districting need not echo into a void because provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply in addressing gerrymandering. So one, two, three, in all recent cases, we've said: Of course, state courts applying state constitutions typically constrain state legislatures when they redistrict, when they enact election laws.
David H. Thompson: Let me start if I may with Arizona, Your Honor. In Arizona, the plaintiff was the Arizona state legislature. The Arizona state legislature did not make any complaints about the substantive restrictions in that referendum, and it's not clear it would have had Article III standing to complain about a constraint being placed on a different entity. So nothing in this Court's decision went to the substance that was in that -- Official
Justice Kagan: Yeah. I guess what I'm saying is that in each of these three we have very clear statements, and I appreciate the fact that this issue was not the one before us in each of those three, just as it wasn't in the case that you mentioned to me that started off my quoting other things. If you're going to quote one at me, I'm going to quote three at you. (Laughter.)
Justice Kagan: And, you're right, we're here for the first time dealing with this issue. This is a novel challenge. So I'm not saying that we've, like, sat here as a Court and addressed hundreds of pages of briefing on this challenge. I'm saying that three times in not so many years we've understood this to be an established proposition of law.
David H. Thompson: So, Your Honor, let me now address Rucho, the most recent, where this Court said "we express no view" on these policy proposals. And many of the policy proposals that were identified in Rucho are ones that are fully consistent with the line we are drawing. The Rucho majority pointed to statutes in Iowa Official 1 and Delaware that pan -- that banned partisan gerrymandering. The Rucho majority pointed to a constitutional amendment in Missouri that designated and created the office of a state demographer to draw state lines. And, essentially, that's what we have here in North Carolina. Partisan gerrymandering has now been banned at the state level for the state races, and we're not here challenging that, and that presumably will have a salutary influence, if the actual legislature itself is not gerrymandered, then when it comes to the role of doing congressional races. And there were referendum -- independent commissions were referenced by the Rucho majority, and we're not debating that. And Congress -- and Congress just this -- this session, the House of Representatives, which has more at stake than the Senate in terms of redistricting, passed a bill that would have banned partisan gerrymandering in all 50 states. And that's what the Founders envisioned the solution to this problem was, was a political solution going to Congress.
Justice Kavanaugh: Your -- Official
David H. Thompson: It's right there in the text.
Justice Sotomayor: Counsel --
Justice Kavanaugh: Your -- go ahead.
Justice Sotomayor: -- you don't dispute that there could be judicial review by the state court of a federal constitutional violation?
David H. Thompson: Correct, Your Honor.
Justice Sotomayor: You don't dispute that federal courts and state courts can both review a provision for violation to the federal Constitution?
David H. Thompson: Correct, Your Honor.
Justice Thomas: But you are disputing that the states can't review -- state courts can't review a state legislative voting system to find whether it complies with the state constitution?
David H. Thompson: Well, it can for procedural reasons, like in Smiley --
Justice Sotomayor: Right.
David H. Thompson: -- like -- there wasn't presentment to the governor.
Justice Sotomayor: So let's go to the Official 1 -- your -- the substantive/procedural reasons still -- distinction makes no sense to me because the only thing the Constitution, as I mentioned earlier, controls is the procedural issues, time, place, and manner. But take a line item veto provision, for example. In more than 40 states, these provisions empower governors to accept or reject -- legislation by altering its content. If, for example, a governor partially vetoes a bill to appropriate funds to administer congressional elections, is that a substantive constraint or a procedural constraint? Just a yes or no.
David H. Thompson: It's procedural.
Justice Sotomayor: Oh.
David H. Thompson: It's a hoop that has to be jumped through.
Justice Sotomayor: Okay. So the governor vetoes a map drawn by the legislature and decides it's constitutionally permitted. Why is it substantive?
David H. Thompson: We're not saying. We're saying, if a governor -- consistent with Smiley, if a governor vetoes --
Justice Sotomayor: No, he -- the -- Official 1 the constitutional provision permits him to -- to alter the contents.
David H. Thompson: Oh, to alter the content. Well, that --
Justice Sotomayor: That's what I said.
David H. Thompson: -- that's the key distinction. If it's a hoop that has to be jumped through in order for the -- the legislature to get the code of elections it wants, it's procedural. If it's a limit on their substantive ability to get the code they want, then --
Justice Sotomayor: It's a yes or no, can the governor do this?
David H. Thompson: Can -- can the governor change the substance?
Justice Sotomayor: Yes.
David H. Thompson: No.
Justice Sotomayor: No. So that becomes substance instead of procedure. So your first answer has now changed.
David H. Thompson: A veto is permissible. Changing the substance is not.
Justice Sotomayor: What about a state Official 1 constitutional provision that precludes legislators from acting during special sessions on certain matters? Could a state court reject the Congressional Election Bill if it is outside the scope of a special session? Yes or no?
David H. Thompson: If it's outside the scope of a special session, that is a --
Justice Sotomayor: All right.
David H. Thompson: -- substantive limitation because they can't start the process.
Justice Sotomayor: It seems to me it's procedural in its most common understanding because it's a question of how you do things, not what's in it.
David H. Thompson: If you can't start the process, then it's a substantive limitation.
Justice Sotomayor: Well, I -- it seems that every answer you give is to get you what you want, but it makes little sense. We have more than one occasion said that we describe the task in Mistretta of distinguishing between substantive and procedural rules as a logical morass that the Court is loathe to enter.
David H. Thompson: And one -- Official
Justice Sotomayor: And I simply -- I -- what I don't understand is the question that Justice Jackson asked you, which is, if judicial review is in the nature of ensuring that someone's acting within their constitutional limits, I don't see anything in the words of the Constitution that take that power away from the states.
David H. Thompson: It comes from the fact that it's a federal function, and with respect to the legal morass, that's when this Court has taken a functionalist approach. We're adopting a formalistic approach, and it's my friends on the other side who are adopting a functionalist test. You can see this on page 57 --
Justice Jackson: But, Mr. --
David H. Thompson: -- of the state Respondents' brief.
Justice Jackson: -- Mr. Thompson, just following up on what was just mentioned, I guess what I don't understand is how you can cut the state constitution out of the equation when it is giving the state legislature the authority to exercise legislative power. It's the state constitution that is telling the legislature Official 1 when and under what circumstances it can actually act as the legislatures. Let me -- let me ask it this way. What if what is at issue is not any particular exercise of the state's legislature -- legislative authority, such its -- as its -- its ability to make time, place, and manner determinations, but whether the entity that is purporting to exercise that power qualifies as this particular state's legislature? So you can imagine that we have two different state entities who claim to be the legislature for the purpose of the Elections Clause, and both of them start acting as such. They set election dates. They have procedures. They issue competing maps and set -- set out different statements about when elections would be held. Would that dispute, the dispute over which entity is really the state's legislature, be decided by federal or state courts and which law would apply?
David H. Thompson: It -- it's state law. I think that's a lot of what was happening in the Arizona, where the independent commissioning Official 1 was saying we're the legislature --
Justice Jackson: I'm sorry, state's substantive constitutional law, we look to the state --
David H. Thompson: We're saying --
Justice Jackson: -- constitution to decide --
David H. Thompson: Because it's a --
Justice Jackson: -- which entity?
David H. Thompson: Well, it's a procedural issue as to who is the legislature. But we --
Justice Jackson: I'm sorry, why is that a procedural issue? My question is we have these two entities, both of which say we are the "legislature" of the state for the purpose of the Elections Clause, and there's a dispute about that. I think you're agreeing with me that that would go to the state supreme court, and I'm asking, wouldn't the state supreme court look at the state constitution and -- and what it says about who gets to act as the legislature and what authority they have. Wouldn't it be looking at the state constitution to make that determination? Official
David H. Thompson: And that's what Arizona teach --
Justice Jackson: I'm sorry, yes or no? Did --
David H. Thompson: Arizona --
Justice Jackson: -- would it be looking at the state constitution or the federal Constitution?
David H. Thompson: Arizona teaches that the states have the authority, wide latitude, to define state legislature how they want. This is a separate analytical question as Justice --
Justice Jackson: Okay. But what I'm trying to understand is why it's a different analytical question --
David H. Thompson: Well, because the --
Justice Jackson: -- because, to the extent that the state constitution tells us what the legislature is and what the scope of its authority, how it's supposed to act, what it's supposed to do, if that's a state constitutional issue, then what I don't understand is, why aren't all of that entity's actions necessarily involving the state constitution? It only gets its authority from that document. Official
David H. Thompson: Because Leser teaches exactly the opposite is true. In Leser, the state constitution forbade Maryland from ratifying the Nineteenth Amendment, and this Court said it didn't apply that state constitution.
Justice Jackson: No, but that's --
Chief Justice Roberts: Counsel --
Justice Jackson: -- that's because -- that's because that particular issue was delegated to someone else. I'm talking about the authority of the state to act.
David H. Thompson: Well, Your Honor, under U.S. Term Limits, the majority of this Court said that the power to act in this place, in -- in this sphere, comes from the federal Constitution. Now what -- so the whole premise of this line of inquiry is faulty, but what I'm saying is that our position is, whether the Term Limits majority or dissent was correct, it's a federal function.
Chief Justice Roberts: Counsel, you make the point at -- at -- several points in your brief about the nature of the state Official 1 limitation that the courts were interpreting, a free election, a fair election. Is -- is that a substantive argument or is that just sort of a style point or -- I mean, if they had a more precise articulation of what the limits were that they were going to apply, whether it's going to be a particular percentage of gerrymandering, a -- a departure, or something more substantive. Is it the problem that they're just interpreting something that gives them free rein, or is that not a consideration?
David H. Thompson: Well, there are two problems, Your Honor. And so, under our primary theory, the problem is that there's a substantive limit of any sort being imposed by the state constitution on the state legislature. But, under our backup liability theory, the problem is that there is a lack of judicially manageable and discoverable standards and that as this Court said in Rucho, judicial action must be governed by standard, by rule. And when the state supreme court was freed of standards and rules, it was no longer acting as the judiciary. It was taking Official 1 legislative power, and its -- the result of its work had the hallmarks of legislation, Your Honor. So it's both problems.
Justice Alito: Mr. Thompson --
Justice Kavanaugh: Mr. Thompson -- no, go ahead, go ahead.
Justice Alito: Mr. Thompson, even under your primary theory, however, is it inevitable that there will be questions about the meaning of statutes enacted by the legislature to govern elections? So isn't it inevitable that the state courts are going to have to interpret those provisions, and isn't it inevitable that state election officials in the Executive Branch are going to have to make decisions about all sorts of little things that come up concerning the conduct of elections?
David H. Thompson: I'd like to make two points about that, Your Honor. First of all, our theory does not relate to the interpretation of statutes. Chief Justice Rehnquist's concurrence in Bush versus Gore was focused on that issue, and that's a separate issue. Under our primary theory, we take Official 1 state law however it's interpreted by the -- the state -- supreme court as given. And so there isn't a matter of having to -- I just want to be clear we're not talking about statutes, point one. Point two, under our theory, because this power has been vested in the state legislature, that there are -- nondelegation principles apply. And they -- they can delegate this authority to local and state officials and all 50 states have done that, but they just need to accompany it by an intelligible principle.
Justice Alito: Well, if your theory doesn't apply to statutes, what would happen if all the provisions of the North Carolina Constitution on which the state supreme court relied were statutory? So there's a statute that says elections in North Carolina shall be free, and the North Carolina Supreme Court said, well, what that means is that there can't be any partisan gerrymandering, districting has to be done under one of these methods that we set out. That would be okay?
David H. Thompson: No, because that would be a violation of -- there -- there would be no Official 1 standard. There would be no rule. And the state courts would be seizing that power from the legislature. I'm just pointing out here, Your Honor, we're not coming to the Court --
Justice Alito: I -- I --
David H. Thompson: -- on a statute, but that statute would be permissible -- that statute would be permissible but not for this type of claim. So, if there were some other claim where they said, well, the election isn't free because of, you know, there's not one-person, one-vote, okay, well, that's a judicially manageable standard.
Justice Kavanaugh: Your position seems to go further than Chief Justice Rehnquist's position in Bush v. Gore, where he seemed to acknowledge that state courts would have a role interpreting state law and that federal court review of that should be, in his words, deferential and simply should be a check to make sure that the state court had not significantly departed from state law. And he drew on a body of precedent that has existed previously. Official 1 And so I think the other side and the Solicitor General say that stands for a general principle which they're okay with that there can be some federal court review of state court review of state law, deferential, so long as there's no significant departure. That's a general principle. Why is that -- your position seems to go further than that, and I'm -- where are you getting that out of Chief Justice Rehnquist's concurrence, or are you saying that was wrong?
David H. Thompson: No. No, Your Honor. What we're saying is that we have a -- that that was dealing with statutes. We're dealing with constitutions, and we have a even more deferential, a maximally deferential position. We say just take whatever the state supreme court says the law is, the substantive law is, just take it at face value. Do not examine in any way whether it is novel, a significant departure, an impermissible distortion. Just take it at face value, and then assess, did it place a substantive limit on the state legislature? So we would defer entirely for Official 1 purposes of our liability arguments in this Court to -- and -- and assume that what the North Carolina Supreme Court did here was correct.
Justice Kavanaugh: What do you think is the best case supporting this substance/procedure distinction?
David H. Thompson: I -- I -- I would say Palm Beach County. I think the Florida Supreme Court --
Justice Kavanaugh: Palm -- Palm Beach County, I -- I thought, was simply saying that there is a federal issue here, and we're going to remand to the Florida Supreme Court so that it can assess how to interpret its state law in light of the fact that there is a federal issue. I didn't -- correct me if I'm wrong, or tell me what your position is, but I didn't see it doing a whole lot more than that. It was a 9-0 opinion, I think, just recognizing there's a federal issue.
David H. Thompson: Well, the -- the Court cited to and quoted from McPherson versus Blacker for the proposition that there could not be any limit on the power of the state Official 1 legislature. Then it vacated the opinion of the Florida Supreme Court, and it sent it back on remand for the Florida Supreme Court to assess and to clarify whether it was, in fact, using the state constitution to operate as a substantive limit. And the Florida Supreme Court understood because their prior opinion had gone on at some length --
Justice Kavanaugh: Did it say substantive limit?
David H. Thompson: It -- it -- it said --
Justice Kavanaugh: I don't -- I don't recall that.
David H. Thompson: It says, "operates as a limitation upon the state in respect of any attempt to circumscribe the legislative power."
Justice Kavanaugh: It didn't use the word "substantive," though.
David H. Thompson: Well, any limit. So maybe it's even more robust. But -- and would sweep aside --
Chief Justice Roberts: Thank you, counsel.
David H. Thompson: Thank you.
Chief Justice Roberts: Just -- at Official 1 page 33 of your reply brief, sort of the last gasp of briefing -- (Laughter.)
Chief Justice Roberts: -- you have, you suggest that there's a "narrower alternative ground" to decide the case in your favor which would allow some substantive state restrictions to be enforced. Could --
David H. Thompson: Yes.
Chief Justice Roberts: -- could you articulate exactly what you think that is?
David H. Thompson: Yes. So, for example, if the North Carolina Constitution had said partisan gerrymandering is -- cannot be allowed if there's an efficiency ratio of more than 7 percent, then that would be a judicially discoverable and manageable standard. You could -- I mean, we all know how to calculate the efficiency ratio.
Chief Justice Roberts: Well -- (Laughter.)
Chief Justice Roberts: -- let's not --
David H. Thompson: Okay.
Chief Justice Roberts: I'm sorry. Go Official 1 ahead.
David H. Thompson: The neuroscientist who drew these maps apparently knows how to -- to draw the efficiency ratio. But, in any event, so that would be an example of a provision that would flunk our primary test because it would be a substantive limitation, but it would pass our backup test because there was judicially discoverable and manageable standards.
Chief Justice Roberts: Thank you. Justice Thomas? Justice Alito, anything? Justice Sotomayor?
Justice Sotomayor: I -- I take your answer to mean that there are no judicially enforceable standards to interpret the Freedom of Speech, Freedom of Assembly, and Equal Protection Clauses of the Constitution because they, on their face, would appear to be as unmanageable --
David H. Thompson: No --
Justice Sotomayor: -- or broad, and yet we routinely let federal and state courts review those provision -- acts -- Official
David H. Thompson: No, Your Honor --
Justice Sotomayor: -- for compliance.
David H. Thompson: -- that's not our position at all. Our position is you need to look at the type of claims. So take equal protection. That's sweeping and capacious language. And if it's the type of claim where you're looking to assess whether race is the predominant motive or whether there's a violation of one-person, one-vote, there are judicially discoverable and manageable standards.
Justice Sotomayor: Some of them were created by the courts.
David H. Thompson: Yes, with judicially --
Justice Sotomayor: But the point -- and so what's different than what the court did here in North Carolina, where it looked to the meaning of -- to the meaning of the English Bill of Rights of 1689, which apparently was the basis for the state's constitution, and it said that the meaning was to curb royal efforts to manipulate parliamentary elections. It then looked to other states that had read in the Free Election Clause and -- and other clauses of the Official 1 state constitution to find that political gerrymandering violated this term. How is that any different than what we normally do in our review?
David H. Thompson: Nothing in the English Bill of Rights told the North Carolina Supreme Court whether an efficiency ratio of 6, 7, 8, 9, 10 percent --
Justice Sotomayor: But that --
David H. Thompson: -- was acceptable. There is no judicial --
Justice Sotomayor: You -- you're not answering my question. Absent the Election Clause, are -- is this term so unmanageable that you're saying that the North Carolina court would not have power to determine what Free Election Clause meant in their constitution?
David H. Thompson: They would be exercising legislative power. It's just like Rucho. This is the exact same issue that divided this Court in Rucho, and for the same reason it was a violation of Article III, namely there were no judicials -- there were no standards, there were no rules, and so it wasn't a case or controversy, so too, here, it would be Official 1 an act of legislative power for a court to make this determination.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: If I could, Mr. Thompson, I'd like to step back a bit and just, you know, think about consequences, because this is a theory with big consequences. It -- it would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that that's a violation of the constitution. It would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution, in fact, prohibits. It might allow the legislatures to insert themselves, to give themselves a role, in the certification of elections and -- and -- and -- and -- and the way election results are calculated. So -- and, in all these ways, I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country. And -- and you might Official 1 think that it gets rid of all those checks and balances at exactly the time when they are needed most, because legislators, we all know, have their own self interests. They want to get re-elected. And so there are countless times when they have incentives to suppress votes, to dilute votes, to negate votes, to prevent voters from having true access and true opportunity to engage the political process. And so I just thought, I -- I mean, I would give you a chance to respond to that because it seems very much out of keeping with the way our governmental system works and is meant to work. And I think, if I could just connect it up to the last question that I asked, it's why in all these recent cases we have statements that say, of course, when the legislature act -- acts, it's subject to the normal constraints, I mean, in this area of all areas I guess I would add.
David H. Thompson: Your Honor, so our -- our position is that checks and balances do apply, but they come from the federal Constitution and the panoply of federal laws like the Voting Rights Act and other statutes Official 1 that are highly protective of voters. So there is a check. There is a balance. And there's also a political. So we've got the legal check from federal law, and we've got the political check that the Founders envisioned of going to Congress. And, as I mentioned, this very Congress, this House of Representatives, voted to ban partisan in gerrymandering in all 50 states.
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: And on that history in terms of checks and balances, what -- what sorts of concerns might --- might the Founders have had if state constitutions were allowed to trump over state legislatures?
David H. Thompson: I think there are two, and we can learn them from James Madison and Joseph Story. So James Madison, as I mentioned, specifically singled out South Carolina as a place that had taken its gerrymander and entrenched it right into the constitution itself, and, of course, Virginia in 1830 does the same thing, where the slave owners try to Official 1 aggrandize their political power by putting a partisan gerrymander right in the state constitution, and there's nothing anyone in the state can do to -- do about it short, of course, of amending the constitution or coming to Congress. And the flip side of that is what Joseph Story in Section 820 of his Commentaries on the Constitution says, which is he -- he calls it a boon, a boon that the state legislatures have this, what he said on -- on the floor of the Massachusetts Convention, unlimited discretion. The boon is because they have adaptability, adaptability to what he said were local politics, local convenience, and you don't have that adaptability when it's in a state constitution.
Justice Gorsuch: Subject to federal constitutional constraints and federal court review and state court review of federal constitutional claims.
David H. Thompson: Absolutely, Your Honor.
Justice Gorsuch: And, historically, at -- at least as I've looked at it, you've got the example of Virginia trying to Official 1 constitutionalize the 3/5 rule with respect to African Americans.
David H. Thompson: Yes, Your Honor, exactly right.
Justice Gorsuch: You've got the -- the example in Maryland of -- of trying to deny the opportunity to adopt the Nineteenth Amendment to the Constitution.
David H. Thompson: That's right, Your Honor.
Justice Gorsuch: And I believe, during the Civil War, there were examples as well of states that in their constitutions would not have permitted absent soldiers from voting in their home state elections but for the fact that state legislatures refused to follow those rules.
David H. Thompson: That's right, Your Honor, and the Supreme Court of New Hampshire, the Supreme Court of Vermont took this up and said these state substantive limitations, they do not apply because it's a federal function.
Justice Gorsuch: So the political saliency point, I think, you know, depends on whose ox is being gored at what particular time. Official 1 I wanted to just make sure I understood your colloquy with Justice Kavanaugh and I believe the Chief Justice too, the difference between this and the Bush versus Gore circumstance that Chief Justice Rehnquist spoke about in his concurrence. It seems to me there are two types of problems. One is, is a state court actually interpreting a statute or is it going too far afield, to the point where someone might say it's not following the statute?
David H. Thompson: Yes, that's one -- that's the Bush versus Gore concurrence problem.
Justice Gorsuch: And then you have a separate problem of when a state court does not even try to interpret the law and just annuls the law outright, and that's this case.
David H. Thompson: I -- I -- I actually think differently.
Justice Gorsuch: Or am I wrong about that?
David H. Thompson: Yeah, I think, respectfully, Your Honor, you are because, even though we actually think that's an accurate description of what happened here, that's not our position in this Court. Our court is assume Official 1 that the North Carolina Supreme Court was entirely right about what they did and that it was --
Justice Gorsuch: As a matter of state law?
David H. Thompson: As a matter of state law, but that it is then still impermissible because it is imposing a substantive limitation on the state legislature.
Justice Gorsuch: Via this melange of state constitutional provisions?
David H. Thompson: Yes, Your Honor.
Justice Gorsuch: Okay. All right. I -- I -- I understand it now. Thank you.
David H. Thompson: Thank you.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: In interpreting the state statutes, can a state court rely on canons of interpretation that say interpret those state statutes in light of state constitutional provisions?
David H. Thompson: Your Honor, so what Chief Justice Rehnquist said in the Bush versus Gore concurrence was he said look to the Official 1 novelty, look to see whether, when you look at the text, you look at the canons of construction, you look at any other sources, at precedent, you look at all the panoply of different tools available to state court judges, and if it would be a surprise to someone that this is what the statute meant, he had a novelty test. And -- and so that would be the way you would do it. Of course, in this case, that's not --
Justice Kavanaugh: Is that -- is that a yes to the question?
David H. Thompson: Well, Your -- Your Honor, yes, you would look at state canons of construction in that very different context.
Justice Kavanaugh: Which could be rooted in the state constitution?
David H. Thompson: It -- it -- I'm not an expert on that, Your Honor. It's not implicated by -- this case -- you can rule in our favor in this case and it will not determine the result of that case.
Justice Kavanaugh: And then the Conference of Chief Justices' brief makes the point, I think, as do the other briefs, that Official 1 nearly all state constitutions regulate federal elections in some way and that that is, as earlier questions have pointed out, some of the early state constitutions did that. What do we do with that historical practice in thinking about how to analyze this question?
David H. Thompson: In -- in -- at the time of the founding, the original 13 states, our view properly understood was that there was only one state that did it. It was Delaware. It was an outlier. There was no debate whatsoever about the Elections Clause. And it said that, you know, voting will be by ballot.
Justice Kavanaugh: What about the historical practice over time, which has certainly developed in a way that state constitutions do regulate federal elections? What weight, if any, do we place on that? Also, there are some federal statutes as well that are cited by the other side. I just want to make sure you've had a chance to talk about those as well. So the --
David H. Thompson: Yeah.
Justice Kavanaugh: -- historical practice in the states and those federal Official 1 statutes.
David H. Thompson: Your Honor, we think the way to think about this is consistent with the Court's opinion in Bruen last term where it looked very focused on -- on the time of the founding, 1791, obviously, we're looking for the public meaning of the Constitution. As that founding generation passes away, Adams and Jefferson die on the 50th anniversary of the Declaration of Independence, as we get out of the 1820s, there's very limited information you can get as to the original public meaning of the Constitution. But -- so it can be a confirming -- that subsequent history as in Bruen can be a confirming historical tradition that -- that -- but it can't undermine what the text and the founding era history show to be the case.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: So could you -- I want to follow up on Justice Kavanaugh's question about Chief Justice Rehnquist's concurrence in Bush versus Gore. So I Official 1 understand that that's not this case because that was an interpretation of a statute and we're talking about a state constitution. But I take it that if we were talking about an interpretation of a statute you would agree with Chief Justice Rehnquist's approach?
David H. Thompson: Yes. Yes. Yes, we do agree.
Justice Barrett: And on the theory that at that point the state court would not be acting as a court but would be acting more as a legislature?
David H. Thompson: That -- that's right, Your Honor. I do want to point out that if the Court were to rule in our favor in this case, it would not necessarily follow that it would have to rule the same way as the Bush versus Gore concurrence for this reason. Statutes are always less problematic under the Elections Clause because they can be repealed. They can be rewritten by the state legislature. So, by definition, a statutory -- an impermissible distortion of a statute, it can be remedied by the state legislature. Now it couldn't in Bush versus Gore. Official 1 There wasn't enough time. But the point is -- and we think the -- the concurrence was correct, but I just wanted to make the point that it does not necessarily follow that if the Court rules in our favor in this case that that case would come out the -- the way the -- the concurrence did in Bush versus Gore.
Justice Barrett: Well, I have a question that follows up on that, but before I move to that, I just want to ask you quickly, so if we're asking about novelty, if we're asking about an egregious departure, or if we're asking about the distinction between substance and procedure, those are kind of all notoriously difficult lines to draw, you know, but in your colloquy with Justice Sotomayor, you were talking about the lack of judicially manageable standards for, say, free and fair elections. Why don't you think -- why do you think that that's less judicially manageable than, say, deciding whether something is substance versus procedure or an egregious departure, truly novel?
David H. Thompson: Well -- well, just to be clear, Your Honor, so in terms of figuring Official 1 out whether there has been an impermissible distortion of a statute --
Justice Barrett: Mm-hmm.
David H. Thompson: -- that's where you have to look to see whether it's novel. The --
Justice Barrett: Right. But I thought you said you agreed with that approach.
David H. Thompson: I -- I do. I'm just saying that in this case we're -- we're -- none of that is implicated.
Justice Barrett: I understand that.
David H. Thompson: Yeah. Okay. And so I -- I apologize.
Justice Barrett: Well, I guess I think substance and -- substance and procedure, as many of the questions --
David H. Thompson: Yes.
Justice Barrett: -- that you've gotten indicate, are difficult to separate out. And so I'm saying --
David H. Thompson: Yeah.
Justice Barrett: -- you're leaning pretty hard on the lack of judicially manageable standards for things like free and fair elections. So I'm -- I'm saying, why should we Official 1 take solace in a substance/procedure definition as a -- as a more manageable line?
David H. Thompson: Well, thank you, Your Honor. And I would point to the Court's decision from 1946, Murphree, where it is talking about the Rules Enabling Act and is setting up the line between substance and procedure.
Justice Barrett: Which is, as a -- as a former civil procedure teacher, I can tell you is a hard line to draw and a hard line to teach students in that context as well.
David H. Thompson: Well, and the Court could take a functionalist or a formalistic approach, but we're saying take a formalistic approach. Say that if it is a hoop that needs to be jumped through, then it is procedural. And if it's an effort to limit the content -- and -- and this is an easy case, that this is obviously substantive, because there was a map and it was thrown in the trash by the courts. And so this isn't even close to the line. But we think my friends on the other side, they're trying to adopt and asking the Court to adopt a functionalist approach. Official 1 They're saying -- they say on page 57 of the state Respondents' brief that, yes, there is something to this idea that the -- that there are limits on the extent to which the state constitution can control the state legislature. The state legislature has to have "a central role." That is a functionalist test if ever there was one. And how do you define the center, and how far from the center can you go? And, oh, by the way, if this is in the center, then the center is pretty much coterminous with the circumference because we -- we, you know, we -- we've been --
Justice Barrett: Okay.
David H. Thompson: -- sidelined completely.
Justice Barrett: I'm sorry to cut you off. I just don't want to take too much of my time. I just want to ask one last question. You were pointing out that state constitutions entrench norms and so they're more problematic than statutes.
David H. Thompson: Yes.
Justice Barrett: But a lot of state constitutions can be amended by simple Official 1 majorities in, say, the referendum process. And so, you know, we know from Hildebrant that if a districting is done by referendum, that's okay, you know, that doesn't violate the Elect -- Elections Clause. So why is it any different, say, if a state constitution is amended and some substantive provision is added by referendum, but it would be problematic, why is that problematic? When it can be changed by a simple majority, why is that more entrenchment? And why would we say that having it appear in the Constitution is problematic when, if it appeared through the referendum process and the legislative process, it's not?
David H. Thompson: Well, respectfully, Your Honor, if we're trying to get at the original public meaning of the Constitution, I think everyone had agreed in Arizona that these referenda were unknown at the time of the founding. And so James Madison --
Justice Barrett: But you're stuck with Hildebrant. I thought you weren't trying to get rid of it.
David H. Thompson: I -- I'm not trying to Official 1 get rid of it, but if we're trying to say why would -- why would the Founders have objected and been worried about partisan gerrymanders in a state constitution, they would have been worried about it because it was maximally entrenching. That's -- if the question is why would they have drawn the line the way they drew the line, that I'm saying they draw -- drew the line is because Madison was worried about entrenchment in the state constitution, and some states may have this procedure, others don't. But, typically, you know, if you want to try to solidify something to the maximum extent possible politically, you typically put it into a constitution.
Justice Barrett: Thank you.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: Yes. Excuse me. Do you agree with me that the Elections Clause doesn't take any position as to who the entity in the state is that qualifies as the legislature?
David H. Thompson: We -- we think the Official 1 dissent in Arizona was correct and that the legislature meant the legislature plus the gubernatorial veto.
Justice Jackson: Legislature defined by whom?
David H. Thompson: Well, I would point the Court to Samuel Johnson's definition where he said the three branches of the legislature --
Justice Jackson: So not the state constitution? That doesn't -- I mean, I -- I read the Elections Clause as essentially giving the entity, whoever it is, that is the legislature the power to make this decision but not taking a position as to who the legislature is.
David H. Thompson: And that is what the Arizona majority said, and we're perfectly content to abide by that.
Justice Jackson: Okay. So, if that's true, if it is the state's constitution that tells us who the legislature is and whether what they're doing is a valid exercise of legislative authority, then I guess what I don't understand is why constitutional limits on the exercise of that entity on its power don't still apply, even Official 1 in this context. So, in other words, the Elections Clause says you get the right to make this decision, that you have that policy determination. But the state constitution is the thing that gives this particular entity its authority to make any determinations and the state constitution says things like, when you make a determination about things in your policymaking role, in the legislative power that we're giving you, you have to make sure that, you know, people are treated equally. You have to -- whatever the constitutional provisions are that we say -- that you're saying are so vague or whatnot, are limitations on that entity's legislative authority not just in this area but in every area whenever they undertake to make a law. And so I guess what I'm trying to understand is why are you suggesting that in the context of the Elections Clause, when this entity would ordinarily be bound by all of the limitations in the state constitution in its legislative authority role, why suddenly in this context do you say, no, no, no, all those other Official 1 constitutional provisions that would bind or constrict legislative authority that the state gives you because you're the state legislature, right, why -- why do those evaporate in this world? I read it as though the state court is essentially saying our constitution authorizes you to be the legislature only insofar as you act in accordance with our constitution's tenets, and you haven't done that in this instance. Why am I wrong about sort of conceptualizing it in that way?
David H. Thompson: Because it's a federal function. And that's what Leser teaches. So there was a constitutional prohibition on the Maryland legislature allowing women to vote, and the Maryland --
Justice Jackson: No, I'm asking -- can I just -- what it -- when you say "federal function," I guess maybe that's where I'm getting hung up. I -- I thought it was a -- a determination, a delegation of, you know, policymaking power in the sense of you get to make this decision. Official 1 But the authority for that body, wherever it is, that's called the legislature, comes from the state because -- you know, that -- that was my example about we have two different entities in the state fighting. Who's the legislature, right? It's what the constitution of the state says that gives you the power, entity X, to be the one who is the legislature making this election's decision. If I'm right about that, then what is being delegated from the federal Constitution is not your power as a legislature, it is just delegating to you the decision about time, place, and manner, which is fine, but you have to do that consistent with the authority that you have as an entity to make legislative decisions, and that comes from the state constitution.
David H. Thompson: And U.S. Term Limits says that is not right.
Justice Jackson: All right.
David H. Thompson: That the premise of your question is not right.
Justice Jackson: All right. Thank you. Official
Chief Justice Roberts: Thank you, counsel. Mr. Katyal. ORAL ARGUMENT OF NEAL K. KATYAL ON BEHALF OF THE PRIVATE RESPONDENTS
Neal K. Katyal: Thank you, Mr. Chief Justice, and may it please the Court: For 233 years, states have not read the Elections Clause the way you just heard. There are two reasons to affirm. One is that when enacting legislation, there's no such thing as an independent state legislature. The other is that North Carolina statutes authorized what the North Carolina court did. I'll focus on the first. Petitioners' idea that state legislatures created by state constitutions are independent of them is wrong. It is rejected by the Articles of Confederation, rejected by the early state constitutions, rejected by the founding practice, especially New York, where judges vetoed federal election bills. It's also rejected by this Court in cases such as Smiley and Hildebrant. Just three years ago in Rucho, this Court promised state Official 1 constitutions can provide standards for state courts to apply and singled out for approval a Florida court decision that used a state constitution to invalidate a federal map. To accept Petitioners' claim, you'd have to ignore the text, history, and structure of our federal Constitution as well as nearly every state constitution today. Petitioners say for two centuries nearly everyone has been reading the clause wrong. That's a lot of wrong and a lot of wrong past elections. Frankly, I'm not sure I've ever come across a theory in this Court that would invalidate more state constitutional clauses as being federally unconstitutional, hundreds of them from the founding to today. It's worth taking a pause to think about what Petitioners are saying. They claim the word "legislature" means a species of state law that has literally never existed. State law-making unconstrained by a state constitution. If the Founders intended to create that animal, surely someone would have said something. Finally, the blast radius from their Official 1 theory would sow elections chaos, forcing a confusing two-track system with one set of rules for federal elections and another for state ones. Case after case would wind up in this Court with a political party on either side of the V. That would put this Court in a difficult position instead of leaving it to the 50 states.
Justice Thomas: Mr. Katyal, would you spend some time on discussing the source of the state court's involvement in a federal election?
Neal K. Katyal: Yeah, we --
Justice Thomas: I understand the court is created under state constitution, but this is a federal matter.
Neal K. Katyal: Correct, and we for reasons Justice Kavanaugh said, Your Honor, think that Palm Beach basically says there is some sort of federal issue here with respect to Elections Clause, and we think, obviously, the state court got it right and didn't violate the Elections Clause, but we think that's the source of authority here. And, Justice Thomas, if I may, in two decades of arguing before you, I've waited for this precise case because it speaks to your Official 1 method of interpretation, which is history, and the founding evidence here is overwhelming, and I'd point you to four things. First, the Constitution uses the same word, legislatures, as the Articles of Confederation, and 10 of state constitutions under the Articles regulated federal delegates. Second, after the Constitution was ratified, states kept regulating it. States like Delaware and Maryland and Mississippi expressly regulated federal elections, as did three quarters of the states. Third, New York in 1792, this example is really important, I think it's truly action as opposed to the talk from Schuyler and Justice Story. In 1792, the Council of Revision, which has four people on it, three judges, one governor, vetoed a federal elections bill for the selection of delegates to the House of Representatives. It was a time, place, manner thing. Why did they -- why did they veto it? They said because it is "repugnant to the state constitution." That is very strong evidence. That's exactly the example you used in Smiley to build your decision there. Official 1 And lastly and most importantly, the dog never barked. The Federalist Papers have three different Federalist Papers on everything he's been talking about about the Elections Clause. Not a person said anything like that they were trying to create this strange animal. This isn't looking like into a crowd and trying to pick out your friends. This is like looking into the Lollapalooza crowd and picking out everyone who speaks 15 languages. They --
Justice Gorsuch: I don't know about --
Chief Justice Roberts: Okay. That --
Justice Gorsuch: -- Lollapalooza. (Laughter.)
Justice Gorsuch: But, while we're looking at crowds, Mr. Katyal -- and I'm sorry, Chief. You want to go ahead?
Chief Justice Roberts: No, no, Go ahead. I'm still trying to sort the analogy out.
Justice Gorsuch: You want to touch the Lollapalooza, yeah, yeah. (Laughter.)
Justice Gorsuch: Right. That's -- Official 1 that was a Lollapalooza. It is a small point, but, on Smiley, on -- on the veto question, just narrowly on the veto question, you know, Locke, Montesquieu, The Federalist Papers treat that as a legislative power and -- and a sharing of the legislative power. And it's in Article I, which kind of suggests it's -- the Founders considered it a legislative power. So I -- I guess I'm -- I'm a little less moved by -- by -- by that Lollapalooza than you are. Maybe you can help me out, though.
Neal K. Katyal: Sure. Of course. And I think it's reflected in the Chief Justice's comments to my friend on the other side. There is certainly something legislative there, but I think that the overall point of Smiley is to say -- and my friend says this in the reply brief at page 6 -- you take legislatures as you find them. He agrees with that proposition. That's what Smiley did as well. The legislature as it found -- as it was found in Minnesota in Smiley was --
Justice Gorsuch: And nobody here thinks the North Carolina Supreme Court is Official 1 exercising a legislative function. We all agree on that too, right?
Neal K. Katyal: Correct. Correct.
Justice Gorsuch: Okay. So that kind of takes care of that argument --
Neal K. Katyal: Well --
Justice Gorsuch: -- I mean, doesn't it?
Neal K. Katyal: -- no, no, because I think --
Justice Gorsuch: What am I missing?
Neal K. Katyal: -- underlying Smiley is something more specific than that. It's basically saying that the conditions on the law-making power -- that's the language at page 365 -- apply, and, certainly, one condition on the law-making power only in two states at the founding but more at the time of Smiley was the governor's veto.
Justice Gorsuch: Yeah.
Neal K. Katyal: But, here --
Justice Gorsuch: And -- and that's because, if we want to look at our friends in the Federalist Papers and everywhere else, that was considered sharing of -- there was no Official 1 absolute separation of powers. There was an exception that --
Neal K. Katyal: Right.
Justice Gorsuch: -- that they had to be mixed. You know -- you know your Federalist 41 and 47 and 51 better than I do, I'm sure. But -- but that that was a legislative function that was given to the President and there it is in Article I.
Neal K. Katyal: Not disagreeing with that --
Justice Gorsuch: Okay. All right.
Neal K. Katyal: -- Justice Gorsuch. What I am saying is that Smiley focused on two things, the word "legislature" but also the word "regulate."
Justice Gorsuch: All right.
Neal K. Katyal: And together they create a law-making system, and what Smiley says is you're then subject to the constraints of that law-making system, one of which was judicial review, well-established at the founding, far more established than the veto.
Justice Gorsuch: All right. Now we're off on another tangent. Go for it. Official
Neal K. Katyal: So far more established than the veto. And so, you know, seven different states had judicial review at the founding. If the method of Smiley -- the method of Smiley is to say, look, the Founders knew about the veto because it was in two states, did they textually exclude it in the language? The answer was no.
Justice Jackson: Mr. Katyal, I don't -- I don't hear your friend on the other side really questioning now at least whether there is judicial review. I understood his primary argument to be, you know, even though the states, we agree, he says, can come in and look at this, what they have to be doing is applying federal law. And so that's the part that I keep getting hung up on. Can you -- can you help? I mean, we have said at certain times here in the questioning today that various entities are exercising legislative power or not, or maybe the Court is exercising legislative power. I thought we told -- we -- we were able to tell when something is a legislative power by reference to the state's constitution, that they Official 1 tell us when legislative power is being exercised at all, validly or whatever. Am I wrong about thinking about it in this way?
Neal K. Katyal: You're absolutely right, Justice Jackson. So two points. One, we can't figure out what Petitioners' theory honestly is. What they just told you is the opposite of what they started with on page 1 of their brief, where they said state courts have no role. They said legislature means legislature. But then you get caveat after caveat. It includes governor. It includes referenda. It includes independent commissions in the reply brief they say. Then they say, well, but state courts can't do it, but maybe they can for federal review, maybe they can if it's procedural or non-abstract. I mean, the one thing we know, they're not making a textual argument anymore. Now, with respect to this federal function argument you were asking about, Smiley dead rejects it. That's exactly what the Minnesota Supreme Court said below. They actually called it a federal agency. And what this Court did unanimously reversed and it said no because, here, you are acting "as a Official 1 law-making body," which is what I was saying to Justice Gorsuch from page 364. It's the exact opposite of his example of -- of the Leser case. Leser is about Article V. It's about a totally different text. The text of Article V is application of the state legislatures. The whole point of Smiley, Justice Jackson, is to say this is different because it's a law-making system not just because of the word "legislature" but also because of the word "regulation." There is no regulation that has ever existed that has been exogenous to the -- the state constitution. It's literally a species that never existed.
Justice Alito: Mr. Katyal, can I ask you some questions about the boundaries of your argument. So suppose a state constitution says that congressional districts will be determined by the state supreme court exercising legislative power. Is that consistent with the Elections Clause?
Neal K. Katyal: We don't think it would be, Your Honor. So we think, in general, there may be some redefinition of the legislature that Arizonans -- the Arizona decision might permit. Official 1 That isn't what we are arguing here. We're talking about ordinary checks and balances like judicial review, and so --
Justice Alito: All right. Suppose that the state constitution says that the legislature can adopt congressional maps, but in that instance, the state supreme court shall sit as a Council of Revision to determine whether the maps are fair.
Neal K. Katyal: Yes.
Justice Alito: Is that okay?
Neal K. Katyal: We do think that the history there would suggest it is. Nothing in our argument, of course, depends on it. Again, ordinary judicial review, that is all we think you should reach in this case. Not that, but the New York example is exactly that.
Justice Alito: Well, that's not really judicial review. That is because they're not --
Neal K. Katyal: Correct.
Justice Alito: -- reviewing it for anything. So --
Neal K. Katyal: Right.
Justice Alito: -- what was your Official 1 answer there? That is okay or that is not okay?
Neal K. Katyal: Nothing in our position depends on it, Your Honor, but the historical test, which is what he's using, New York in 1792, did exactly that.
Justice Alito: Well, I'm not sure I understand your argument, but, okay, on to another example. Suppose the state supreme court says the essence of our state constitution is fairness and we don't think that the map adopted by the legislature is fair. Is that okay?
Neal K. Katyal: The constitution says that the map adopted by the legislature is or the state court says that?
Justice Alito: The state constitution -- the state -- the state supreme court says that the essence of our state constitution is fairness. It doesn't point to a particular provision in the state constitution. It just says the essence of our state constitution is fairness to all of our citizens, and the map adopted by the legislature is not fair.
Neal K. Katyal: Yes, Your Honor, we think that would -- again, nothing turns on that here, Official 1 but the answer to your question is yes, we think that would be constitutional, and the reason why is because there's a trident of safeguards that would prevent any sort of abuse. The first one, the safeguard, is in the state process itself. As Judge Sutton's work explains, state courts have all sorts of mechanisms to restrain them, including popular accountability and, as Justice Barrett pointed out a moment ago, a much easier amendment process.
Justice Alito: Well, that's a little bit -- that's a little bit off the point. As far as popular accountability is concerned, we have seen examples of state well -- many state supreme courts are elected. And some states allow partisan elections. So there's been a lot of talk about the impact of this decision on democracy. Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting?
Neal K. Katyal: Yes, Your Honor, we do, and the reasons for that are threefold. Number Official 1 one, there are any number of checks on that process, including, as Justice Barrett says, the amendment process and other things that Judge Sutton warns about. Second, the Founders laced into the Elections Clause itself a specific remedy for your concern, which is that Congress can come in and supplant -- any particular state court decision they don't like, they can say this North Carolina map should be reinstated, they could supplant all the state constitutions.
Justice Alito: But can't you say the same thing about allowing the legislature to do -- which is popularly elected, to do the -- to make the map? Congress can always come in.
Neal K. Katyal: Sure, and that's exactly what Smiley and -- and -- Smiley rejected, this idea that there's only -- that that's the one remedy, in Wesberry as well. They said that's just indicia of the fact that the Founders distrusted state legislatures and wanted checks and balances. Here, of course, we're only seeking ordinary ones. And, third, with respect to your question of the catastrophic consequences, we Official 1 think, for reasons Justice Kagan said, that cuts entirely the other way. I mean, the blast theory by their -- by their theory -- blast radius by their theory starts at the size extra large. It starts with invalidating 50 different state constitutions today. Elections clauses are in 27. All states have equal protection clauses, speech clauses, assembly clauses. Thirty of them guarantee the right to a secret ballot. There's vote -- five of them, voter ID --
Justice Alito: What about the -- what about the approach set out by Justice -- by former Chief Justice Rehnquist? Does that -- is that also a Lollapalooza? Does that have a --
Neal K. Katyal: No.
Justice Alito: -- huge blast radius?
Neal K. Katyal: No, Your Honor, as long as we understand, as Justice Kavanaugh said a moment ago, that that is about statutes. And, here --
Justice Alito: Well, as applied -- how about if it's applied to a state constitution --
Neal K. Katyal: Right. Official
Justice Alito: -- as well?
Neal K. Katyal: So, for 233 years, this Court has never second-guessed a state court interpretation of its own constitution in any context. Forget about the election --
Justice Alito: Oh, I don't think -- is that true?
Neal K. Katyal: I --
Justice Alito: We have to decide whether there is an adequate and independent state ground, right, for --
Neal K. Katyal: Right.
Justice Alito: -- a rule that's -- that a state court invokes?
Neal K. Katyal: You -- you certainly do decide it. I don't think you've ever second-guessed it and said they've gotten it wrong. My friends from the --
Justice Alito: We've never said that one is inadequate?
Neal K. Katyal: I don't think you've ever said a constitutional provision is, Your Honor.
Justice Alito: Well, have we ever said that a state law is inadequate --
Neal K. Katyal: Yes. Official
Justice Alito: -- or rule?
Neal K. Katyal: So that's -- and that's the distinction I was drawing, referring to Justice Kavanaugh. With respect to -- with respect to a statute, there's one set of standards, but with a constitution, there does have to be a sky-high standard. So we don't doubt, Justice Alito, if the state constitution said, for example, that absentee balloting is required, and some judge came in -- or a state statute even, some judge came in and said the state supreme court said, you know, we don't like absentee voting, we like -- voting is a civic thing, you've got to do it in person for policy reasons --
Justice Alito: All right. Thank you.
Neal K. Katyal: -- then --
Justice Alito: Thank you, Mr. Katyal. I have a few more questions, but I'll wait for the next period.
Chief Justice Roberts: Thank you. Mr. Katyal, you quote in your brief, and we've heard it this morning as well, the language from Rucho that say -- says provisions in state constitutions can provide standards and Official 1 guidance for state courts to apply in redistricting. Do you think the phrase "fair and free elections" is providing standards and guidelines?
Neal K. Katyal: I -- I do. Let me say two things about that. Number one, Your Honor --
Chief Justice Roberts: Just before you -- I'll let you get in, but providing standards and guidelines in the context of an opinion that emphasized how unmanageable and indeterminate the various proposals were --
Neal K. Katyal: You said --
Chief Justice Roberts: -- with respect to partisan gerrymandering --
Neal K. Katyal: Right. But you said that about the federal -- the federal review. And I think it's very different at the state level for two reasons. One is, of course, states don't have the same type of non-justiciability concerns. And, second, you anchored it in really a political legitimacy point about this Court at page 2507. You said we can't -- we're one Supreme Court. These cases are inherently political. Everything is going to wind up here Official 1 and be seen and through a -- you know, seen by the outsiders through a political lens. I think that point cuts the other way with respect to this case because, if you left it to the decentralized 50 state systems with their own traditions -- and this is something that Judge Sutton's work talks about -- yes, you can have an abstract clause. Many state constitutions do. And for the most important of reasons, that suggests actually -- you know, that -- those are sometimes the most fundamental provisions to the state. That's what the state constitutional -- law scholars' brief explains. So the idea that you could just nullify those by saying they're too abstract is really problematic. And the other thing I'd say is, when you use that language, he just chalked it up to you saying that's about the congressional proposals and that -- he said it was about it -- that the words that "we express no view" apply to that language that you just read. That's just a flat misreading of the case. You used that language I said, then there was some talk about congressional proposals and the U.S. Official 1 Congress, that's what you said you expressed no view on.
Chief Justice Roberts: Just --
Neal K. Katyal: Five Justices -- sorry.
Chief Justice Roberts: Yeah. And just to be clear, when you say "you," you mean the Court, right?
Neal K. Katyal: Exactly.
Chief Justice Roberts: Thank you.
Neal K. Katyal: Yes. (Laughter.)
Chief Justice Roberts: When -- at page -- near the end of your brief, at page 49, you say that this Court "always has jurisdiction to intervene in rare cases where state courts act lawlessly to obstruct federal rights." And you look to Chief Justice Rehnquist's opinion as saying that the standards would be reviewable when the -- they significantly depart from well-established meaning of state law. When you're falling back in that situation, do you bump into Mr. Thompson when he's falling back the other way? (Laughter.)
Neal K. Katyal: Ha. No, because he Official 1 actually just disclaimed it. He said, I'm not second-guessing the North Carolina state legislature. So the separate opinion that was written in this case earlier, all those arguments, I take it, are now off the table about the North Carolina court going too far or misreading its own constitution. For us, Mr. Chief Justice, because this Court has never really confronted the situation of saying a state court got it wrong on its own constitution, we think that standard has to be sky high. It is the, you know, ultimate affront to sovereignty of a state to say its own state court got things wrong. And we'd say the corollary is it's an equal affront to say a state can't even have these clauses in its constitution, that they're unenforceable. You know, things like the Free Elections Clause have been around since 1776 in North Carolina. They predate the Declaration of Independence.
Chief Justice Roberts: Thank you, counsel. Justice Thomas -- Thomas, anything further? Official
Justice Thomas: Actually, I don't, but I've been waiting 30 years to ask him a question. (Laughter.)
Justice Gorsuch: That was pretty funny.
Neal K. Katyal: That was good.
Chief Justice Roberts: Drum roll.
Justice Thomas: You said that the -- this Court doesn't normally second-guess state court interpretations of their own constitution. Would you say that in the case of Baker v. Carr?
Neal K. Katyal: Yeah, I don't think it was -- I think you can declare it unconstitutional, any number of things like that. But to say that they just got their own constitution wrong is -- just as a matter of interpretation, that is, as a --
Justice Thomas: But it was purely an interpretation of their own constitution and --
Neal K. Katyal: And a violation of federal law, right? So --
Justice Thomas: Well, yeah, I mean, but that's just a way -- I mean, you can raise -- you -- it's -- in the end, it was Official 1 invalidating their interpretation of their redistricting principles.
Neal K. Katyal: And -- and, Justice Thomas, our only point to you, and it's the same point picking up on Justice Kavanaugh's question to my friend, at page 78 of Bush versus Palm Beach Canvassing Board, you said that -- the Court said that it -- that sovereignty is at --
Justice Thomas: Well, I was there too, yeah.
Neal K. Katyal: That was a good one. Sovereignty was at its apex when you're talking about state constitutions and interpretations by state courts.
Justice Thomas: Let me ask you this just as -- it may be a bit unfair. If the state legislature had been very, very generous to minority voters in their redistricting and the state supreme court said under their state constitution that -- that this was -- violated their own state constitution of North Carolina, would you be making the same argument?
Neal K. Katyal: So the -- if -- yes, I mean, if there is --
Justice Thomas: You just -- Justice Official 1 Gorsuch said its -- it seems as though it depends on whose ox is being gored. So I'm changing which ox is being gored.
Neal K. Katyal: Yeah. No, we don't think anything turns on the substance of the individual decisions here.
Justice Thomas: But you would still be there --
Neal K. Katyal: Our point --
Justice Thomas: -- making the same argument?
Neal K. Katyal: -- our point to you, Justice Thomas, is that this Court has never second-guessed state court interpretations of their own constitution. And so, if there's a general clause and it happens to benefit or hurt --
Justice Thomas: Yeah.
Neal K. Katyal: -- minority voters, as Judge Sutton says, that's a process the states deal with. And as I was saying to Justice Alito, there's a special safeguard here, which is the second half of the Elections Clause, which allows Congress to supplant whatever that errant state's or court decision is. Official
Justice Thomas: So when is it -- again, I'd like you to just tell me, what is the source of the authority for the State of North Carolina Supreme Court to be involved in a federal election? I understand that there's no disagreement about a state legislator. But this is a federal election, and it's similar to the problem we had with the presidential election in Bush v. Gore.
Neal K. Katyal: It's just like Smiley, Your Honor. It's the exact same thing. So there is a federal issue. The North Carolina court is interpreting the elections clauses and powers, and -- and the question is whether or not they have misread it or not. And so I think that's the source of the -- of the substantive -- alleged substantive violation here. I think you're absolutely right, the spirit of your question, for 233 years, this Court's never gotten involved and said, hey, we're going to, you know, rove and say the North Carolina court got it wrong or their provision was too abstract for enforcement or anything like that. Rather, this Court has always stayed on the sidelines, let the state process unfold, Official 1 subject to that other part of the trident check, Congress in the second half of the Elections Clause.
Chief Justice Roberts: Justice Alito?
Justice Alito: I was asking some questions earlier about instances in which it is necessary for a federal court in applying federal law to delve into the meaning of state law. And while federal courts generally take state law to be whatever the state supreme court says it is, there are instances where that is not the rule, and I mentioned one. Put aside for a moment your distinction between a state constitution and a state statute. Whether -- whether a rule invoked by the state supreme court is an adequate rule, in deciding whether there is an adequate and independent state ground for a -- for a rule that the -- the state supreme court applies, right, that's an instance of that?
Neal K. Katyal: Correct.
Justice Alito: All right. How about the Contract Clause, whether the -- was there a violation of the Contract Clause? Doesn't the Court have to determine whether there really was Official 1 a contract under the law of the state at the time when the contract in question was formed?
Neal K. Katyal: Right. We don't doubt that. It's just under a very deferential standard review. We're not disagreeing.
Justice Alito: What about the Takings Clause, was there a taking of property? Property is defined by state law, but what -- if the state supreme court says this thing is not property, does that answer the federal question?
Neal K. Katyal: Again, not -- not -- you know, yes, we think all of those are examples of this Court looks into it. Here, of course, we're talking about state constitutions being interpreted by state courts, so it's a little different than these scenarios, but yes.
Justice Alito: All right. What about if there's -- along the same lines, what if there is a claim that there was a deprivation of property? Once again, property is primarily defined by state law, but does the state supreme court have free rein to say, no, there was no deprivation because there was no property?
Neal K. Katyal: So the -- the state court does under its own processes depending on the Official 1 text and the history in that state, which differs from state to state for reasons Judge Sutton says, and this is the same answer I'd given to Justice Thomas. We don't doubt that there is some review by this Court in the most -- in extreme circumstances. It's just that the standard is incredibly high. What my friend is saying is, well, because it's a federal function, it's somehow immunized from state court review altogether. And that's just not -- there's no conflict between federal and state schemes. It's like, for example, Spending Clause litigate -- legislation, like the Clean Air Act or Clean Water Act, which require the passage of state laws to enforce, but nobody says they're exempt from the state constitution.
Justice Alito: Well, but you -- I mean, you say the standard is incredibly high, but does it go up to the stratosphere or, you know, into outer space? When you say that it would be okay for a state to set up the state supreme court as the Council of Revision or that it would be okay for the supreme court -- a state supreme court simply to say the essence of Official 1 our constitution is fairness, you would say that that can be done. So that sounds like no standard at all.
Neal K. Katyal: Okay. Again, Your Honor, we're saying ordinary checks and balances, that's all you have to do here, but, yes, we think there are other checks that deal with that -- those precise problems. If there is in a clause that's abstract and being misinterpreted, both the state process itself as well as Congress can come in and supplant that. So their -- you know, those accusations -- this is Judge Griffith's brief -- are made all the time about even decisions by this Court. He points to Citizens United and Heller as examples. And what this Court has -- what he says is there's a special check here because you have Congress being able to come in --
Justice Alito: But Congress can -- I don't know why that's an answer because Congress can come in anytime, under any circumstances, no matter what we say the Elections Clause means. Congress can always come in and --
Neal K. Katyal: Right. Official
Justice Alito: -- establish the manner of conducting congressional elections.
Neal K. Katyal: But what this Court said is that what that clause reflects is a distrust of state legislatures. That's what you said in Hildebrant and in Smiley, and there -- excuse me, in Smiley and Wesberry, and in those cases, you rejected that precise argument. And so it is a check on judicial adventurism if -- to the extent you're worried about it.
Justice Alito: What is the check on -- last question. What is the check on an appointed state supreme court? Suppose a state supreme court, the justices of the state supreme court had the same protection against removal and all of the other protections that federal court --
Neal K. Katyal: Yeah.
Justice Alito: -- federal courts do. What is the check on them?
Neal K. Katyal: So it is the amendment process, which, as Justice Barrett -- Justice Barrett said, I think, boomerangs on them when you try to exempt state statute -- statutes because amendment processes are often easier. Official 101 Judge Sutton's book talks about that. And you have the congressional check. And my last point to you, Justice Alito, is, what's the check on the other side? All he's giving you is federal constitutional review, which is, you know, only a few clauses of the Constitution, as Rucho says, many of them non-justiciable. So the states have regulated this for 233 years in a particular way. The blast radius from his theory can extend to state statutes. I understand he's disclaiming them, but the next petitioner won't, the theory's going to apply and may even reach delegations to state officials, which would be a -- you know, a dramatic change, as the Ben Ginsberg amicus brief explains.
Justice Alito: Thank you.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: Counselor, could you deal with the examples, the historical examples your colleague spoke about as supporting his position, Virginia's 3/5 rule, Maryland's Nineteenth Amendment rule? I think Official 102 your brief does an adequate job on the Story issue, but --
Neal K. Katyal: So -- so the Maryland one is just about the amendment process, and that's Leser, and that's just a totally different text and so on and certainly doesn't bear on the original meaning of the Elections Clause. With respect to Virginia, it absolutely cuts the other way. That's the 1830s.
Justice Sotomayor: That's what I thought.
Neal K. Katyal: So it's not the Bruen, you know, time period of the founding, and we have provision after provision even before the founding with the Articles of Confederation which I think blow apart their historical theory. But, with respect to Virginia, yeah, one person said this would violate the Elections Clause and, you know what happened, James Madison and the Chief Justice of this Supreme Court, John Marshall, did -- voted for the bill even after that objection. So, if anything, it cuts the other way. But I am not aware of a Official 103 decision by this Court that invalidates early state constitutional provisions as being federally unconstitutional in the way that this theory does.
Justice Sotomayor: And you don't take quarrel with the fact that a state could interpret a state constitution in a way that violates the federal Constitution? That's what they're arguing here.
Neal K. Katyal: Right. No, we don't doubt that. It's just under, as we were talking about, that stratospheric standard of review because it's never -- to my knowledge, it's never really happened by this Court. And I think Bush versus Palm Beach Canvassing Board says it's got to be the highest standard, higher than Chief Justice Rehnquist's opinion in Bush versus Gore.
Justice Sotomayor: Well, I -- I thought of those cases as basically saying that there was a due -- federal due process problem if an interpretation violates due process in some way.
Neal K. Katyal: Correct. There's a novelty concern, particularly in the criminal Official 104 context, about adequate and independent state grounds, picking up on Justice Alito's point. Novelty I don't think applies quite here because we're not talking about fair warning in the same way as the federal context.
Justice Sotomayor: Exactly, but I always thought of those cases, those extremes being rooted in the federal Constitution's due process.
Neal K. Katyal: It can be in that context. Here, I think it's rooted in the Elections Clause itself, which was my answer to Justice Thomas.
Justice Sotomayor: Okay.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: If I could go over some of the ground that you've been asked about about the Rehnquist concurrence and make sure I understand your position and the issues that are in front of us and so forth. So, as I understand it, the one -- the one area of agreement I found between you and Mr. Thompson is you'd also think that the Rehnquist concurrence is about statutes, not about Constitution -- Official
Neal K. Katyal: Correct.
Justice Kagan: -- as in this case. So your view, as Mr. Thompson's view, is that the Rehnquist concurrence by its terms isn't implicated here?
Neal K. Katyal: Correct.
Justice Kagan: But you say there, you say you have no doubt that there's a kind of corollary for the constitutional side of things.
Neal K. Katyal: Yes.
Justice Kagan: So does that mean it's not just like there may be a corollary? You think that there is a corollary?
Neal K. Katyal: Yeah, I think the Elections Clause at some point could be violated in the -- like the example of absentee voting that I gave you a moment ago.
Justice Kagan: Yeah, but you say so it's sky high, it's stratospheric, it's whatever. So, when you look at the Rehnquist concurrence, and it was only a concurrence, so it didn't really have to pick a single standard, there were actually a lot of different standards floating around in the Rehnquist concurrence, and some of them sound easier to satisfy than Official 106 others. You know, like, one is like not a fair reading, which doesn't sound all that difficult. One is absurd, which sounds a lot more difficult. But you're saying even more than the highest --
Neal K. Katyal: I mean --
Justice Kagan: -- statement in the Rehnquist opinion --
Neal K. Katyal: Well, I think absurd --
Justice Kagan: -- because the Constitution is different?
Neal K. Katyal: Right, I think absurd, inconceivable is what he uses at one place, or no basis. The Conference of Chief Justices, all 50 Chief Justices are before you saying at page 19 of their brief the standard is no plausibly defensible basis for the state court's determination. I think all of these, regardless of the words that are used here, Justice Kagan, I think --
Justice Kagan: But you're saying it should be higher on the constitutional side than on the statute.
Neal K. Katyal: Correct.
Justice Kagan: And why is that? Official
Neal K. Katyal: Because we are -- it is the apex, as Palm Beach Canvassing Board says, of a state's sovereignty, as a state's constitution. And to say that their own high court got it wrong is really a very grave thing. I -- I still am not sure that this -- that's ever happened in any context from this Court.
Justice Kagan: And -- and whatever the exact wording of the standard is that you think applies on the constitutional side, would that be implicated in this case?
Neal K. Katyal: Oh, no, not at all, because he just disclaimed it anyway in his argument today. And he said, we're not asking you to second-guess the North Carolina constitution. But, if you adopt his view about abstract clauses or things like that, I don't know what is abstract and what isn't abstract. I mean, you know, you could imagine even the most concrete provision, polls shall close -- be open until 8 p.m., that sounds very concrete, but, as the amici briefs say, like the Ben Ginsberg brief, what about a hurricane or a plumbing leak or a terrorist attack. Every Official 108 clause is going to have open-ended stuff in them, and you're opening Pandora's Box if you side with any version, and he's got nine different versions.
Justice Kagan: Right. I -- I was asking a somewhat different thing. I -- I was just asking whether this decision in this case can remotely be understood to run into the constitution -- the constitutional corollary of the Rehnquist principle.
Neal K. Katyal: Miles away from it, which is why I think he's disclaiming it. I mean, that was thorough judicial interpretation for reasons our brief explains.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: First, just a -- a point of clarification, Mr. Katyal. You -- you take the position that Virginia correctly understood the Constitution when it adopted the 3/5 requirement --
Neal K. Katyal: So --
Justice Gorsuch: -- for purposes of calculating African American persons in its constitution? Official
Neal K. Katyal: No, Your Honor. So there -- there's several different provisions being debated in 1830. One is the 3/5 provision. We're not talking about 3/5. We're talking about the regulation of federal districts, which is what the Elections --
Justice Gorsuch: But --
Neal K. Katyal: -- Clause violation was about.
Justice Gorsuch: But you're saying what Virginia did at that time was consistent with a proper understanding of the Elections Clause.
Neal K. Katyal: Well, the Elections Clause, yes.
Justice Gorsuch: Yeah. That's what I'm asking.
Neal K. Katyal: Yes.
Justice Gorsuch: Okay. So you are defending that.
Neal K. Katyal: Not the 3/5 --
Justice Gorsuch: I guess I'm surprised by that given that when the Elections Clause issue was raised in that debate as I understand it from the briefs before us, the Official 110 Convention attendees and others basically said, yeah, that might be so, but who cares, we have to protect our -- our property interests in slavery.
Neal K. Katyal: Yeah. So that's a different provision, Justice Gorsuch, so that's why I'm saying, you know, it's a nice smear of what happened in 1830 that has been levied by my friend on the other side. But the Elections Clause --
Justice Gorsuch: You'd agree that they were not attending to the Elections Clause, they were attending to their perceptions of what their property rights were?
Neal K. Katyal: No. This was about the districting, and that's what was at issue in the Elections Clause. And they --
Justice Gorsuch: What would -- what would -- fine. If -- if you don't want to answer that, maybe you can get at it this way. What would prevent a state before the Civil War from adopting what you say didn't happen and would never have happened, a 3/5 rule in their state constitutions?
Neal K. Katyal: So the state Official 111 constitutions, they could adopt that rule and whatever that is, and it may be consistent with the federal rule at the time, the -- you know, pre the Civil War.
Justice Gorsuch: So you would defend that as -- as consistent with an appropriate understanding of the Elections Clause?
Neal K. Katyal: No, I'm saying it has nothing to do with it, with -- with what we're talking about here.
Justice Gorsuch: I'm asking you would a state prior to the Civil War --
Neal K. Katyal: No --
Justice Gorsuch: -- be able through its Elections Clause --
Neal K. Katyal: No --
Justice Gorsuch: On what ground?
Neal K. Katyal: No position on that. We're only talking --
Justice Gorsuch: No position on that?
Neal K. Katyal: -- about ordinary checks and balances, Justice Gorsuch, and --
Justice Gorsuch: No position on that at all?
Neal K. Katyal: -- Justice Gorsuch, we're Official 112 -- we're --
Justice Gorsuch: All right. How about -- how about a state then that puts a political gerrymander into its state constitution?
Neal K. Katyal: Yeah, so --
Justice Gorsuch: And this Court as a -- as a federal matter, as you know, has said we abstain from dealing with those things under Rucho. So a state could do that too, right?
Neal K. Katyal: Oh, I don't -- well, I think there'll be any number of state violations that may be at issue there if that happens.
Justice Gorsuch: It's in the state constitutions.
Neal K. Katyal: Still, state constitutions often have --
Justice Gorsuch: Let's just say it's as a matter of state law pristine. Then what?
Neal K. Katyal: Yeah. So then I -- I don't think that it would necessarily -- it would state a federal Elections Clause violation at that point.
Justice Gorsuch: Yeah.
Neal K. Katyal: Again, nothing in here Official 113 turns on it. We're talking about ordinary judicial review, checks and balances akin to --
Justice Gorsuch: I understand -- I --
Neal K. Katyal: -- what the Chief Justice was talking about the veto --
Justice Gorsuch: -- I understand the mantra, okay? Let me ask you to turn back to the -- the question about, you know, if we -- if you think the Rehnquist view is appropriate on constitutional grounds, what do we do with this opinion? At least some -- some of the amici tell us that we've never had a state court strike down a state law with respect to federal congressional districting on political gerrymandering grounds until the last several years. So, if we're talking about 200 years' worth of history, this one's pretty new too, right?
Neal K. Katyal: Not exactly. So I'd say a couple of things about that. First --
Justice Gorsuch: Just really quickly, because I don't want -- I don't want to expend too much time. When -- when was the first one of these in -- in your understanding, political Official 114 --
Neal K. Katyal: , Massachusetts, the Warren decision.
Justice Gorsuch: All right. Besides that.
Neal K. Katyal: Yeah. And so then a lot in 1932, but that's just for maps, so --
Justice Gorsuch: And then -- and then it's 2015, right, or not?
Neal K. Katyal: No, I don't think that's right. So, first of all --
Justice Gorsuch: Okay. All right.
Neal K. Katyal: -- outside of maps, states --
Justice Gorsuch: Fine. All right. Let's put that aside. Let's put that aside.
Neal K. Katyal: Okay.
Justice Gorsuch: Put that aside. What do we do with the fact that in this opinion that we have before us, the North Carolina Supreme Court said it had to do something because the legislature would not act. The only way that -- that partisan gerrymandering can be addressed is through the courts. Official 115 About five, seven years ago, it -- it refused a political gerrymandering claim itself under the open-ended Good of the Whole Clause. And now it's come back and cited a -- a mélange of -- of open-ended other provisions that it's now accepting. So I understand the standard is sky high, but at least given some contestable history, and I understand you contest it, but put that there. You've got -- you've got this novelty within North Carolina and switching positions with North Carolina, let me add one more and then I'll -- I'll shut up. We have a very lengthy opinion from the North Carolina Supreme Court. It addresses the elections -- federal Elections Clause issue in three paragraphs on page 122 of the Petition Appendix. At the very least, all of these interesting and important issues, and able counsel on both sides, were not available to that court then. What should we do in that circumstance?
Neal K. Katyal: Well, certainly, with respect to that federal issue, we think it only Official 116 honestly needed three paragraphs because, in those three paragraphs, they talk about all of the things we just talked about, obviously not the detail, and I'd love to give you more detail, Justice Gorsuch. But, you know, then you said, well, the -- the decision was based -- the decision talked about it being hard for the legislature to act. And I understand that was the basis of a separate opinion by this Court. I think that point actually underscores the caution this Court should have when reviewing state court decisions because that's not what the North Carolina Supreme Court actually said at those pages at 8A.
Justice Gorsuch: That's at page 8 --
Neal K. Katyal: Yes, page 8A. I understand.
Justice Gorsuch: -- that -- that the only way that partisan --
Neal K. Katyal: Exactly.
Justice Gorsuch: -- gerrymandering can be addressed --
Neal K. Katyal: And it's not saying that it's too difficult to -- for the legislature to Official 117 act. They're making a point about like --
Justice Gorsuch: Oh, no.
Neal K. Katyal: -- John Hart Ely --
Justice Gorsuch: That they can't do that. Right. No, I understand that.
Neal K. Katyal: -- they're making a John Hart Ely point about how the legislature has been captured. It's the same point the Chief Justice made at oral argument in Rucho. And it's -- and they're basically saying -- and this is page 88 to 90 of the opinion -- that because there's a process defect, there's a special role for this Court in North Carolina, and they trace it back to 1787 North Carolina Supreme Court in Bayard, which said the exact same thing, that we were worried about legislative self-dealing --
Justice Gorsuch: All right.
Neal K. Katyal: -- and installing themselves.
Justice Gorsuch: Got it.
Neal K. Katyal: So it's the heart of the tradition.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: I just wanted to Official 118 follow up on your discussion with Justice Kagan on pages 48 to 50 of your brief and pages 26 to 28 of the Solicitor General's brief on the -- on the Rehnquist concurrence there. And you -- I think you said state court -- a check to prevent state court judicial adventurism I think was your phrase or to ensure that state courts don't manipulate state law to frustrate federal rights. And, as Justice Alito pointed out, there are civil rights due process cases, Treaty Clause, Contract Clause, adequate and independent state ground we had a few weeks ago, that kind of issue. And I -- I read Justice Ginsburg's dissent in Bush v. Gore to actually accept the principle or at least not dispute the principle, although she, of course, vigorously disputed the application of that principle in that case. Then I go to your brief on 48 to 50, and I thought you said it's unremarkable proposition. I didn't see in your brief a distinct standard between statutes and constitutions. I don't think that's there in 48 to 50. Official 119 And I guess following up on Justice Kagan's, why would we use -- we're going to have to work on the adjectives and adverbs if we --
Neal K. Katyal: Yeah.
Justice Kavanaugh: -- follow something like that, but why would we say, you know, significant departure for statutes and plainly indefensible for constitutional interpretations --
Neal K. Katyal: Right.
Justice Kavanaugh: -- is that going to really help the cause at all?
Neal K. Katyal: Right. So I do think it's in our brief. We quote the language from Bush versus Palm Beach Canvassing Board and about -- about constitutions and state constitutions being at the apex, Justice Kavanaugh. And the reason for that is twofold. Number one, there's very serious federal --
Justice Kavanaugh: But -- but -- keep going.
Neal K. Katyal: -- there's very serious federalism concerns generally. All those contexts you gave me before about adequate, Official 120 independent, those are actually reviewing procedural rules, state statutes and the like. Reviewing state constitutions, again, the apex of state sovereignty. I think federalism is generally different. And then B, in this unique context, where Congress already has a backup check and can supplant any state court decision it doesn't want by name or supplant -- supplant state courts altogether in the second half of the Elections Clause, whatever the standard is for Bush versus Gore or something like that, to the extent you might think there was a constitutional issue, it's going to be even higher here because the Framers put Congress in and how to check specifically for this problem.
Justice Kavanaugh: Okay. I understand the apex, but just to be clear, you're not saying no federal judicial review when the state court has interpreted the state constitution in a case of this nature, correct?
Neal K. Katyal: We -- we -- if the -- no, we think it should be under the highest standard of review --
Justice Kavanaugh: Right. Official
Neal K. Katyal: -- if it's a state constitution, yes.
Justice Kavanaugh: And I'll repeat the question then. You're not saying no judicial review -- federal judicial review of state court interpretation of state constitutions in this area, correct?
Neal K. Katyal: Right, we're not saying that. It's just under a high -- sky-high standard.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: My question picks up on Justice Kavanaugh's. So, in terms of what the federal content is to this state question, I'll tell you one way that I've been thinking about it and you can tell me if it's consistent or inconsistent with your view. Just as, say, in the due process context we say property is a state law question, but there's some core beyond which a state can't depart, so it's -- it's a -- it's a federal question and the state can't depart so greatly from it that it's no longer really property for Official 122 purposes of the federal Constitution. This federal content or the federal check, is it from the word "legislature," so the clause says, "shall be prescribed in each state by the legislature thereof." And at some point, if a state court adopts an interpretation of a statute or a constitutional provision that's -- pick your adjective or adverb -- you know, significantly departs from, so novel, egregious, it's no longer acting as a court exercising the normal judicial review function but is acting like -- like a legislature, is that how you would articulate the argument?
Neal K. Katyal: I think so in general, so I'd make -- I have a couple of tweaks to it. So I agree with you the ultimate test is, is the court, you know, have such little legal reasoning that it can only be understood as seizing the policymaking apparatus that would otherwise exist. And we would ground that not just in the word "legislature" but also in the word "regulation," and so, if it's ordinary judicial review as it has been for 233 years, we don't think there'd be a violation. Official 123 And lastly, Justice Barrett, we would ground it in what -- something you mentioned a moment -- to my friend on the other side, the Eleventh Amendment and the -- excuse me, the Tenth Amendment --
Justice Barrett: Right.
Neal K. Katyal: -- and the special solicitude there for state processes as -- as they take them. And, indeed, their reply brief at page 6 says, look, we'll take the state processes as we find them. And, here, that state process includes judicial review and there should be only review by this Court in the most extreme circumstances, which can only be policymaking, not any of his other, you know, tests or backup tests and the like.
Justice Barrett: Okay. Again, putting aside what specific language we would adopt for that test, accepting that it would be stratospheric, sky high, why would it be different in the constitutional context, in other words, a state court interpreting a state constitution as opposed to a state court interpreting a state statute if what we're getting at grounded in the language of the Official 124 clause in both instances is, is this a regulation or is this a legislature?
Neal K. Katyal: They're -- they're absolutely both incredibly high, which is why this Court's never second-guessed anything. I do think there's something, you know, special about state constitutions, but I don't want that to be, like, a framing effects thing to say just because that standard is extraordinarily high, that means the statutory standard is lower, a lot lower. It's not. I mean, this Court doesn't do that. It is one of those cardinal principles going back to Neal's Lessee in 1832 that state courts are the masters of --
Justice Barrett: Well, I --
Neal K. Katyal: -- their own statutes.
Justice Barrett: -- I get that. But that's just about where we locate the standard. That doesn't deny the proposition that there's some federal content there that there would have to be some federal check.
Neal K. Katyal: I -- I think there probably would be. Again, my friend on the other side somehow disclaiming statutes and Official 125 saying you shouldn't, so we don't think you should get into statutes here at all.
Justice Barrett: Right.
Neal K. Katyal: But I do worry the blast radius of this theory is going to reach statutes, and that's something this Court should worry about.
Justice Barrett: Thank you.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: Yeah. I'm just -- to follow up on what Justice Barrett just said, I -- I'm wondering whether the answer about why a state constitution is different in this context is because the state constitution is the font of authority for all the relevant parties in terms of this dispute. The -- the state constitution is what tells the state legislature what it cannot -- can and cannot do, what the state court can and cannot do. And I understand we have the -- the peculiar circumstance of the state supreme court being the one to interpret the state constitution, but it is different in terms of its legal consequence and stature than a Official 126 statute. Am I wrong in thinking about it that way?
Neal K. Katyal: No, we think you're absolutely right. And so that's why state constitutions reflect the most fundamental principles, like the Free Elections Clause, often in broad, open-ended language, just like the federal Constitution in McCulloch versus Maryland.
Justice Jackson: And they apply in different ways. Like, you know, it's not just the state constitutional provisions that speak specifically to elections that apply and constrain the state legislature. I guess what I'm a little worried about is the -- the suggestion that when the legislature is acting -- is -- is exercising legislative authority in this context, it does not have to adhere to any state constitutional constraints on its power when it's the state constitution that gives it its power and tells us when it is appropriately acting as the legislature not just with respect to the issue of elections but in general. Official
Neal K. Katyal: That's a hundred percent right, Justice Jackson. We've never had a creation of that animal in the state -- in -- in the federal Constitution empowering states to do that. And if that were what the Founders intended, surely someone would have said so and it would have prompted a massive debate. There are three Federalist Papers on the Elections Clause. Not a word, anything like this. What he would do is gut the ordinary --
Justice Jackson: So --
Neal K. Katyal: -- checks and balances.
Justice Jackson: And so, to me, it's not so much the sort of troubling worry of we have the state legislature violating federal constitutional law because we as the Supreme Court and other courts in the federal system can look at that because it's a question of did they violate the federal Constitution. Here, he's saying, no, we do have to comply with the federal Constitution. What we can violate is the state constitution. And what I don't -- I -- I can't wrap my mind around that argument.
Neal K. Katyal: I can't either, Your Official 128 Honor. In Shelby County, this Court said it's up to states primarily to regulate elections through their constitutions and statutes. And what he would do is gut the ability of states to do that. All 50 states have clauses, equal protection, assembly, speech, and others. He would nullify them all --
Justice Jackson: Thank you.
Neal K. Katyal: -- in addition to the smaller voting regulations.
Chief Justice Roberts: Thank you, counsel. Mr. Verrilli. ORAL ARGUMENT OF DONALD B. VERRILLI, JR., ON BEHALF OF THE STATE RESPONDENTS
Donald B. Verrilli Jr.: Mr. Chief Justice, and may it please the Court: I'd like to make three points. First, Petitioners' argument cannot be reconciled with Smiley. Smiley held that because the Elections Clause invokes the state legislature's law-making function, the conditions which attach to the making of state laws apply. Judicial review is such a condition, Official 129 and there's no basis in text or history for concluding that a governor's veto can act as a substantive check on the legislative prerogative, but judicial review cannot. Second, the -- the General Assembly's statutory authorization makes this an even clearer case for affirmance, and in particular, it establishes conclusively that North Carolina courts do not in any way usurp the legislative function when they draw remedial maps in the manner that the statute describes. And third, since the founding, state constitutions have always limited how state legislatures discharge their Elections Clause responsibilities. Today, in addition to the states' constitutions that expressly express partisan gerrymandering, constitutions address absentee voting, voting by the military, voter ID, and primary elections and many other aspects of the electoral process. That -- excuse me -- that Petitioners must repudiate all of that longstanding and comprehensive history is a very powerful indication that they are misreading the Official 130 Elections Clause. I welcome the Court's questions.
Justice Thomas: Mr. Verrilli, the -- how far would you go with that? There's been some discussion about we can only review state courts at a sky-high level or a stratospheric level or -- we -- we ran into a similar problem with that in Bush v. Gore. How would you articulate our review standard --
Donald B. Verrilli Jr.: Yes, Justice Thomas.
Justice Thomas: -- for state supreme courts?
Donald B. Verrilli Jr.: Justice Thomas, I -- I appreciate the opportunity to do so. And let me just try to articulate what we think a clear correct standard is. And we think the standard is that you -- you'd ask whether the state decision is such a sharp departure from the state's ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law. We think that is actually the best distillation of the kinds of tests that were identified in the Bush v. Gore concurrence as being potentially relevant. Official 131 Now I will say that we think that's a highly deferential test. We think also it has to be -- it's of vital importance to recognize that states can have different modes of constitutional interpretation than this Court has with respect to the federal Constitution, and those have to be respected. But -- and then, you know, I think probably the -- the line in Bush v. Gore in the concurrence that best sums it up is that, does it -- does the state court decision impermissibly distort beyond any fair reading the state law? So we -- we think that's the -- the operative test here, again, highly deferential, have to respect the way in which state courts go about constitutional interpretation. But I think that's the test. And if I -- if I could build on that, I think, Mr. Chief Justice, that is the answer actually to the question that Your Honor raised about vague and general provisions. What my friends on the other side have said is those are categorically unenforceable. They're categorically unenforceable under the Elections Clause. Official 132 That just can't be right. There's no textual basis for that. And as a jurisprudential matter, the -- the federal Constitution, of course, has vague and general provisions, and no one requires that level of specificity before they can be enforced in -- in the elections context.
Chief Justice Roberts: Well, if you --
Donald B. Verrilli Jr.: So --
Chief Justice Roberts: -- just -- I recognize your point about categorically unenforceable, but where do you line up on that and some of the detail, like what's going to be applied is an efficiency gap of whatever in a judicial determination? Is -- is -- is that categorically unenforceable, or can you say that in this case that seems specific enough to be carrying out the duty under the constitution of the legislature?
Donald B. Verrilli Jr.: If I could make a prefatory point, and then I'll --
Chief Justice Roberts: Yeah.
Donald B. Verrilli Jr.: -- I'll answer Your Honor's question directly. Official
Chief Justice Roberts: Sure.
Donald B. Verrilli Jr.: The prefatory point is this. I just want to make sure this -- that this -- we all keep this in mind: They are not making an argument that the -- that the North Carolina Supreme Court's decision in this case would be struck down under the standard I articulated or any other standard. In fact, they began their argument, and they said, I think, by my count, six or seven times that they accept the North Carolina Supreme Court's decision as a fair reading of North Carolina law. So whatever the Court concludes with respect to the application of that -- the -- the -- the need for a standard like this, it's not -- it's not a basis to overturn the decision here for -- for the reasons I identified. Now, with respect to Your Honor's question, I think I would -- the way I read the North Carolina Supreme Court decision is a little different, starting with the fair -- the Free Elections Clause. It basically, as I read the opinion, conducted a historical analysis of the kind that should be familiar as a matter of constitutional interpretation. They went back Official 134 to the English Bill of Rights, which was about the manipulation of electoral processes so that the Parliament would be in the king's pocket essentially. They looked at comparable events that occurred in North Carolina at the time of the founding. And then, although this was not in the opinion, you know, of course, I do think that the -- what James Madison was saying about the Elections Clause itself -- and the best place to look for that is page 27 of The Founding Era scholars' brief -- he talked about, because this was general language, the risks of abuse were -- were manifold and could not all be imagined. And what he was basically talking about, one thing he says -- and this is the August 9th debates of the Convention -- one thing he says in those August 9th debates is, you know, there's a real risk that the powers that are in control of the state legislatures will rig the process for choosing members of Congress in a way that they can project their disproportionate power in the state into the Congress. So those --
Chief Justice Roberts: Well, maybe Official 135 that gets -- touches a point that may be a little too abstract to address, but the nature of judicial authority at the time of the founding and thereafter I think is quite different than the nature of judicial authority today. I mean, even just looking at court opinions, you can see that what -- what courts do as a general matter can be really quite specific in terms of injunctive relief and the sort of thing that is at issue here. And I wonder if the -- I -- I guess I wonder how we should go about taking that into account.
Donald B. Verrilli Jr.: Yeah. And so --
Chief Justice Roberts: Their early statements about this is what the Court did in 1800 and whatever. And I wonder if the same concerns that are at issue today about the exercise of judicial authority were really on the plate back then.
Donald B. Verrilli Jr.: So I -- I guess the way I would think about that, Mr. Chief Justice, is that what -- what the North Carolina Supreme Court was doing here, I think, was saying this is the historical genesis of the Free Elections Official 136 Clause. This is the kind of problem it has to -- that it's -- it's there to address. The extreme partisan gerrymandering -- and this was an extreme gerrymander -- the extreme partisan gerrymandering we face here is a cognate kind of problem. We have to figure out, using modern doctrine and modern approaches, how to address it. And I do think, if I could -- I don't want to be presumptuous here -- but, as I read the opinion for the Court in Rucho, the idea of the -- of the Court there was that looking at this Court's understanding and history of the Equal Protection Clause and the Free Speech Clause, you know, given that history, it wasn't possible to derive particular and manageable standards. But there's a key -- as I read it at least, a key predicate there is that -- and the opinion reflects this -- that the Equal Protection Clause doesn't impose any restriction on partisan motivation or intent, and, therefore, the only thing you can look at is the result and, you know, how -- how fair is unfair.
Chief Justice Roberts: But -- Official
Donald B. Verrilli Jr.: But --
Chief Justice Roberts: Go ahead.
Donald B. Verrilli Jr.: If I could. The -- the key difference I think, one key difference and it applies here, is that if one looks at those number -- number of state constitutional provisions that expressly limit or prohibit partisan gerrymandering, and there are quite a number now -- I don't know, seven, eight, including many of the big states -- there, they focus on intent. And policing for an impermissible intent is something that courts know how to do and is subject to judicially manageable standards. You know, with respect to race, of course, you have the Arlington Heights framework. And I think, again, that they have not challenged this opinion. They said it's fair --
Chief Justice Roberts: Right, but --
Donald B. Verrilli Jr.: -- but -- but I -- but I will say it does have a very substantial intent focus, and I would point the Court in particular to pages 125a to 129a of the --
Chief Justice Roberts: If I -- if I could? Official
Donald B. Verrilli Jr.: -- appendix to the petition. I'm sorry.
Chief Justice Roberts: The -- you have -- again, today, particularly in the redistricting area, if the court is involved, it's often -- I don't know if it's typical or whatever -- they act through the appointment of special masters. The judges don't sit in the back room with lines drawing the districts, but other -- other people do. And I wonder if there's a disconnect between the level of the grant of authority, whether it's along the lines that Chief Justice Rehnquist put in -- in the Palm Beach case or something else, and how it's actually practiced on the ground.
Donald B. Verrilli Jr.: Yeah. So I think that whatever might be the case in other situations, here, of course, in North Carolina, we have an express statutory authorization saying a particular three-judge court shall impose a remedial map and shall do so under the following constraints. It's good for one trip only, its interim map. It -- the legislature has to be given a full and fair opportunity to remedy the constitutional problem before that remedial Official 139 process kicks in. And then -- and then, third, the map has to deviate as minimally as possible from the map that the legislature enacted. And then, within those constraints, that remedial process occurs. And so I -- I think that -- and I -- and I guess, more generally, I would think, if one recognizes, as I think has to be the case, that states do have the constitutional authority to enforce state constitutional provisions here and they declare that a state legislative act is unconstitutional, in the case of a redistricting map, then it naturally follows that there is going to be remedial authority, and that remedial authority in this instance really responds to a profound practical problem, which is you have to have a map to have an election.
Chief Justice Roberts: Thank you.
Justice Kagan: So --
Donald B. Verrilli Jr.: Somebody's got to step in.
Justice Kagan: -- Mr. Verrilli, I mean, what if you were in a state which didn't have the kind of procedures that North Carolina had? And, as you say, there has to be a remedy. Official 140 But let's say a state just sort of did it on its own without even -- you know, without kicking it back, without saying, look -- let -- let's say there was time enough to kick it back, and -- and -- and the state court did not kick it back. Are there any limits on this? Should there be any limits on this?
Donald B. Verrilli Jr.: So there might be. You know, a useful analogue on the federal side, there's a whole body of equitable principles that -- that apply in precisely this context that say, as a matter of exercise of equitable jurisdiction, the court's got to give the legislature a full and fair shot to remedy it first, should deviate as little as possible from the -- the map that the legislature enacted. And I -- I -- I guess that in order for those to apply in the state situation, they would have to have a basis in the constitution. I could envision an argument that those kinds of constraints on remedies could be something that you could think of as within the -- as -- as appropriate, given the Elections Clause. But, again, this case, it's very straightforward. This is as constrained a remedial situation as Official 141 you are going to see.
Justice Kagan: And just --
Justice Gorsuch: And -- oh, sorry.
Justice Kagan: No, go ahead.
Justice Gorsuch: No, please.
Justice Kagan: Just a quick question. Is -- when you gave your standard, the -- the sort of, you know --
Donald B. Verrilli Jr.: Sharp departure from --
Justice Kagan: Yes.
Donald B. Verrilli Jr.: -- the state's ordinary modes of --
Justice Kagan: Yeah, which is --
Donald B. Verrilli Jr.: -- constitutional interpretation --
Justice Kagan: And -- and you said --
Donald B. Verrilli Jr.: -- that lacks any fair and substantial basis in state law. (Laughter.)
Justice Kagan: Good. Your -- your highly deferential standard, and deferential as to interpretive method as well as to anything else.
Donald B. Verrilli Jr.: Yes, thank you.
Justice Kagan: Yeah. Is -- is that Official 142 standard for you, should that be the same standard as for statutes, or do you agree with Mr. Katyal that there actually is a gap between the two?
Donald B. Verrilli Jr.: Yeah, I'm not sure that I see a gap between the two, and -- I mean, except in the following sense, that one could, I think -- think -- one could think that with respect to a statute, because there's a difference between interpreting a statute and interpreting a constitution, that with respect to the interpretation of a constitution, there -- there may -- state supreme courts may have more leeway because there -- there is after all a constitution they're interpreting. And so I -- I could see in application the standard might work out differently in some cases, but -- but I don't think it's a difference in the standard as much as in the application of the standard.
Justice Gorsuch: Actually, this follows right up on that, so that was very helpful. I'm glad I waited. The question I think, as Justice Barrett suggested, is, has the legislature prescribed the time, place, and manner? And I think -- I think -- your standard Official 143 and our -- our sky-high, astronomical, and I think we ventured into outer space at points standard, is asking have the -- has the judicial opinion in interpreting the law, let's deal with statutes first, gone so far afield that we can no longer fairly say as a matter of federal law that the legislature is the one who prescribed the time, place, and manner? Is that a fair understanding of -- of our task here as --
Donald B. Verrilli Jr.: I think the -- that --
Justice Gorsuch: -- under federal law?
Donald B. Verrilli Jr.: -- I think that's kind of the underpinning of the idea that what you're trying to solve for is the problem of a state court going so far afield and being so disconnected from existing precedent, from history, et cetera, that you would come to the conclusion that they're really not engaging in the function of judicial review --
Justice Gorsuch: Well, the -- the legislature didn't prescribe these things. I mean, that's the text that we're asked to interpret, right?
Donald B. Verrilli Jr.: Well, right, but I -- I Official 144 guess, Your Honor, I would say that --
Justice Gorsuch: Have they gone so far afield that we --
Donald B. Verrilli Jr.: -- when it comes to the question, if I could just -- if I could just say it this way.
Justice Gorsuch: Well, I just want to make --
Donald B. Verrilli Jr.: Yeah, yeah.
Justice Gorsuch: -- just -- just make sure we're on the same page. You know, that's the --
Donald B. Verrilli Jr.: Well --
Justice Gorsuch: -- that's the federal standard, and one way of analyzing that, I think, if I'm understanding you, and if I'm not, please say so, when we're dealing with statutory law is, if they've gone so far afield or into outer space, that's an indication that it's no longer the legislature prescribing it.
Donald B. Verrilli Jr.: Well, I guess I would put it differently.
Justice Gorsuch: Okay.
Donald B. Verrilli Jr.: I guess what I would --
Justice Gorsuch: How? Official
Donald B. Verrilli Jr.: -- say is that the -- that the Framers took legislatures as they found them, that the -- that the judicial review under the state constitution is a condition of the normal operation of state law and the language of Smiley, that -- and, therefore, it should be expected that courts will review federal election regulation by state legislatures under the state constitution, that that -- and that they --
Justice Gorsuch: Okay. Thank you --
Donald B. Verrilli Jr.: -- can validate --
Justice Gorsuch: -- Mr. Verrilli. Thank you.
Justice Jackson: Can I just follow up --
Chief Justice Roberts: Thank you.
Justice Jackson: -- on that? Oh.
Chief Justice Roberts: We'll --
Justice Jackson: Sorry.
Chief Justice Roberts: -- we'll go through. Justice Thomas? Justice Alito?
Justice Alito: Is your standard a Official 146 standard that can be flunked?
Donald B. Verrilli Jr.: Yeah, I assume it could be flunked.
Justice Alito: Give me an example of something that would flunk your standard.
Donald B. Verrilli Jr.: So, you know, I think a -- a naked declaration that a -- that an act of a legislature under a free and fair elections clause is unfair, without any grounding in history or precedent or -- or sound analysis of a kind that the state -- that the state, you know, is appropriate under that state's mode of interpretation, I -- I think -- I think you could envision that possibility happening.
Justice Alito: Okay.
Donald B. Verrilli Jr.: I do think that would be a rare case, but I think --
Justice Alito: Yeah, I appreciate that answer because I think the worst thing we could do, although it might be attractive for some reasons, is to say, well, there is a limit, but, you know, we -- we -- but it's one where -- that in practice can never be exceeded, so we have a standard, but it's just -- you know, it doesn't mean anything. Official 147 Under that understanding, let me talk about the decision in this case. And we've heard about the English Bill of Rights. I mean, did any -- has anybody ever thought that the English Bill of Rights had anything to do with one-person, one-vote, much less political gerrymandering?
Donald B. Verrilli Jr.: Well, the -- I -- I think it had the -- the historical roots of those doctrines, yeah, do trace back to the idea that the English Bill of Rights was trying to deal with, which was the manipulation of the electoral process, including the -- the -- who -- who is going to represent what area, in -- in order to entrench those in power.
Justice Alito: Well, wasn't it true -- you probably know more about British constitutional history than I do, but wasn't it true that well into the 19th Century the British Parliament was notorious for having rotten boroughs, you know, parliamentary districts where there were practically no inhabitants, but that was a good way of entrenching a Tory member or a Liberal member? Wasn't that true?
Donald B. Verrilli Jr.: Well, but -- but that Official 148 was a bad thing, and I think it was --
Justice Alito: It was -- it was a bad --
Donald B. Verrilli Jr.: -- something that the Framers were --
Justice Alito: -- yeah, it was a bad thing, but that was under the English Bill of Rights, was it not?
Donald B. Verrilli Jr.: Well -- well, but the -- I guess the point is that what is this Free Elections Clause trying to get at in the North Carolina constitution and the other constitutions that adopted it at the time of the framing, and this is the problem.
Justice Alito: All right. 1776, 200-plus years ago. Was anybody at that time saying election isn't free if there's political gerrymandering?
Donald B. Verrilli Jr.: Well, you know, I don't know if they were saying it in exactly those terms, but there is an amicus brief that addresses what was going on in North Carolina. It's -- Penn Bank I think is the name -- Plan Bank maybe -- I'm sorry if I'm mispronouncing it -- which talks about actual controversies with Official 149 respect to the way districts were drawn in North Carolina in the 1770s.
Justice Alito: Well, sure there was controversy, and where -- and this isn't -- political gerrymandering is no new thing, right? It was known at the time of the founding.
Donald B. Verrilli Jr.: Yeah. Well, yes, but --
Justice Alito: That's where the name comes from, right?
Donald B. Verrilli Jr.: Sure, sure, but the -- but the -- the question is what problem is the -- is the North Carolina Supreme Court trying to address here, and my point is it's a problem very much in the nature of the problem that gave rise to the Free and Fair Elections Clause. And if I could just make an -- it makes an obvious point, I guess, but, you know, when the Framers adopted the Free Speech Clause, they were principally concerned about prior restraints. But we don't interpret the Free Speech Clause as applying only to prior restraints, obviously, and so --
Justice Alito: And then the North Official 150 Carolina Supreme Court sets out certain methods that could be used in determining whether there is political gerrymandering, the mean/median difference, the efficiency gap, means simulations. Would that -- would anybody have understood that in 1776?
Donald B. Verrilli Jr.: No, I -- I doubt it, but those are means of implementing a fundamental principle. Those aren't fundamental principles themselves. And the fundamental principle that I -- that the North Carolina Supreme Court articulated as I read the opinion is that you don't want the electoral districts to manipulate it, be manipulated so that one group of voters is severely disadvantaged as compared to another group of voters of a different party of the same size.
Justice Alito: Okay. So let's turn to precedent, which is another way of interpreting a state constitution. What grounding in North Carolina precedent was there for this decision? My understanding is that the most relevant decision, which is -- suggests that the North Carolina constitution doesn't address political gerrymandering. Official
Donald B. Verrilli Jr.: Yes. So the -- so the Dodson case came up with my friend on the other side, I think, or maybe with Mr. Katyal, but I should talk about that for a minute. You know, to say that the partisan gerrymandering analysis in that, I mean, I -- it was a flea on the tail of a dog. When you read that opinion, it was -- that was a case about racial gerrymandering. Ninety-nine percent of the opinion is about it. The parties threw in this kind of offhand argument in their opening brief that said, well, there's also a problem here in that it violates the Good of the Whole provision. And the -- and then the -- the appellees, the respondents in that case said, well, you haven't articulated any standard to decide which of these two competing maps better serves the good of the whole. And they -- the -- the appellants said nothing in the reply brief. The court said, well, you haven't articulated any basis for deciding on the difference between the two. And -- and, of course, the North Carolina Supreme Court recognized that in this very case.
Justice Alito: Were there -- were there prior decisions of the North Carolina Official 152 Supreme Court that step by step led to this conclusion --
Donald B. Verrilli Jr.: So --
Justice Alito: -- that the Free Elections Clause prohibits political gerrymandering?
Donald B. Verrilli Jr.: So I'm going to answer Your Honor's question, but I do want to just interject one more time that they have said that this decision is a fair representation of North Carolina law. They are not challenging it under the standard I articulated or any other standard. They have made a different argument, which is that this is categorically a violation of the -- of the Elections Clause for state supreme courts to invoke -- to apply vague and general provisions. And so I'm happy to keep answering Your Honor's questions, I am, but -- but I just want to reinforce that that's -- they have conceded that this is a fair interpretation of North Carolina law.
Justice Alito: All right. And then we get to the introductory statement that Justice Gorsuch mentioned, and, boy, that seems Official 153 awfully close to what you said would be a violation.
Donald B. Verrilli Jr.: I don't --
Justice Alito: Well, you know, they -- I mean, then there's a hundred pages, you know, of elaboration, but, basically, at the beginning, they say what they're doing, and, basically, they're saying in no uncertain terms, look, there's legislative malfunction here. The legislature has adopted a -- a political gerrymandering, and it's really hard to amend the state constitution and we don't have a referendum to correct it, so there's a big problem in the state and we have to step in.
Donald B. Verrilli Jr.: Well, but --
Justice Alito: That's awfully close to what you just --
Donald B. Verrilli Jr.: No, I -- I -- I -- I disagree quite strongly with that, first, with respect to the specific thing that they said in this paragraph -- and I think we're talking about the same paragraph -- and then with respect to the way in which the opinion analyzes it. They -- they do say: Okay, we don't Official 154 have a referendum process. It's hard to amend the Constitution. The reason it's hard to amend the Constitution is because you've got -- you have to get 60 percent of the legislature as the first step. And the problem here, of course, is the actions of the legislature. And then the -- what -- what -- and I think this is what Your Honor is referring to, but there -- you know, there's a sentence here which we haven't talked about, and what the North Carolina Supreme Court says, "it is no answer to say that responsibility for addressing partisan gerrymandering is in the hands of the people when they are represented by legislators who are able to entrench themselves by manipulating the very democratic process from which they derive their constitutional authority." Now one can agree or disagree with that as a premise for judicial intervention, but that's essentially John Hart Ely's Democracy and Distrust. And you -- you may not think that that's an appropriate way to think about how the federal Constitution ought to be interpreted and applied, but I don't see how one could say that Official 155 that is so far outside the bounds of reasonable interpretive principles that the state court here was acting as a legislature and not a court. I just don't see how you could say that. And then, of course, with respect to the specific analysis beyond the Free Elections Clause, there's a very lengthy Equal Protection Clause analysis, which is rooted in substantial precedent --
Justice Alito: Thank you.
Donald B. Verrilli Jr.: -- and which --
Justice Alito: Thank you, Mr. Verrilli.
Donald B. Verrilli Jr.: Thank you.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: Mr. Verrilli, I -- I'm trying to organize an opinion if I were to rule in your favor. And -- and you say some things are within bounds, some things are not. How would you write it, I mean, to answer some of the questions my colleagues have raised and to knock it down, okay? I -- I guess, first, you would say take Petitioners' broadest view, that the Official 156 legislature means state legislators, not state courts, and so there can't be any judicial review. That's easy to write and say there obviously has to be judicial review because it's part of the regulation process. What comes after that?
Donald B. Verrilli Jr.: So --
Justice Sotomayor: How --- how do we deal with his distinction between procedural and substantive? How do we deal with this question of --
Donald B. Verrilli Jr.: I think the Court could write a very --
Justice Sotomayor: -- did this Court -- why --
Donald B. Verrilli Jr.: Sorry.
Justice Sotomayor: -- why we don't reach the question of whether this Court went too far with legislating and not reviewing?
Donald B. Verrilli Jr.: I think the Court could write a very straightforward opinion, and -- and -- I -- I think -- it would -- a good place to start would be the following quote from Chief Justice Hughes's unanimous opinion for the Court in Smiley, which says: "The question then is Official 157 whether the provision of the Federal Constitution, thus regarded as determinative, invests a legislature with a particular authority and imposes upon it a corresponding duty, the definition of which imports a function different from that of a lawgiver" -- and then these are the key four words -- "and thus renders inapplicable the conditions which attach to the making of state laws." In Smiley, the Court answered that question with an emphatic "no" with respect to the governor. An emphatic "no" is equally appropriate here. There is a limit to the -- to the state court's ability to enforce state constitutional provisions. That limit is the standard that I articulated twice and I won't articulate for a third time. And --
Justice Sotomayor: So we --
Donald B. Verrilli Jr.: But -- and that - but the -- but the --
Justice Sotomayor: You're -- you think we should reach that question?
Donald B. Verrilli Jr.: Well, but then I was going to say, but the Petitioners have not -- if the Court wants to save that for another day, it Official 158 can, but I guess we're comfortable with the articulation of it. The key point for us is the Petitioners have not made any argument under that standard, and, therefore, there is -- in fact, the opposite, they have conceded that this is a faithful and fair interpretation of North Carolina law and, therefore, there's no basis for overturning the decision of the North Carolina Supreme Court.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: Mr. Verrilli, I've been thinking a good deal about this constitutional analogue to the Rehnquist principle, and your colloquy with Justice Alito made me feel uneasy about it, and I think that the reason is because it shows how very good judges on very good courts can find it incredibly easy to disagree with each other. And so, if Justice Alito asked you can it be flunked, I think what I want to ask you after hearing that colloquy is, is there a danger it's going to be satisfied too easily? And I'll just -- you know, I think that every single one of us on this bench has written opinions at times, you know, saying that Official 159 other judges, whether it's other judges on this Court or -- or lower court judges, you know, have engaged in policymaking rather than in law. And, I mean, it's just sort of one of the things that judges say when they really disagree with another opinion. And -- and so how -- you know, if you say acting as a legislature, not as a court, acting as a policymaker, not as a court, I mean, these really are things -- it's not just this Court, it's every court -- these are things that judges say to each other all the time. How is this going to be a check that's used rarely --
Donald B. Verrilli Jr.: Well --
Justice Kagan: -- rather than, like, whenever you basically, you know, disagree strongly.
Donald B. Verrilli Jr.: So I -- I apologize for putting it this way, but I think that's up to this Court, because this Court's going to be applying it. And I think the -- the phrase from the Bush against Gore concurrence that I think captures it pretty well is, does it impermissibly distort beyond any fair reading state law? That -- that is deferential, a very Official 160 deferential standard. It, I think, encompasses the point that I made that you've got to respect the state courts' modes of constitutional interpretation. And then -- and I -- but I do think for all the reasons of federalism and state sovereignty and -- and comparative institutional competence, that, of course, it needs to be applied very deferentially. There aren't going to be very many cases that -- I would think that would satisfy it. There will be some perhaps, but there won't be very many. And -- and -- but -- but I think that -- but, anyway, that's the way I think it -- it would -- that's the way I think it would go.
Chief Justice Roberts: Justice Gorsuch? Justice Kavanaugh? Justice Barrett?
Justice Barrett: Just quickly, Mr. Verrilli. You got some questions about the remedy. And, you know, the Chief Justice was asking about special masters drawing the map, and, you know, here, we had experts come in. Official 161 We've been talking primarily about the liability question. You did get some questions about remedy. Do you -- I just wanted to give you a chance to say something about our jurisdiction, whether we have jurisdiction to review --
Donald B. Verrilli Jr.: You know, we --
Justice Barrett: -- the portion --
Donald B. Verrilli Jr.: -- we don't think there's a final judgment here yet. I mean, the -- the question of the proper remedy is before the three-judge court on remand. And the, you know -- and the argument being -- that's at play there is, should the court accept the legislature's remedial plan or the alternative remedial plan drawn by the court? And that -- that the answer to that could matter to the way the Court analyzes the issue. Now I will say -- I take my -- the argument of my friends on the other side to be that the two issues of whether you could have a remedial process at all and whether you can have judicial review at all are so intimately bound up that you -- you should address that issue, and that's why I was focused on it.
Chief Justice Roberts: Justice Official 162 Jackson?
Justice Jackson: I just have one question that goes back to this issue of constitution being different than statute from -- from the perspective of us trying to figure out what to do here. Justice Gorsuch asked, I thought, a very clarifying question, and it's sort of come up again with Justice Kagan's remarks, which is we're really trying to kind of sort of figure out when and under what circumstances the state legislature has usurped legislate -- legislative power in some sense. And I think Justice Kagan is correct that that's sort of in the eye of the beholder. But, you know, what -- what is the body of law that we would reference to answer the very standard that you have articulated, when it warps it? What -- what are we looking at to determine how --
Donald B. Verrilli Jr.: So --
Justice Jackson: -- far --
Donald B. Verrilli Jr.: -- I think the standard is drawn -- and I think Justice Alito in his colloquy with Mr. Katyal went through the various places where the Court applies that kind Official 163 of a standard, and the Bush against Gore concurrence references most of those.
Justice Jackson: Mm-hmm.
Donald B. Verrilli Jr.: And we were drawing that standard from the -- that same body of law. And it's -- and it is a very good question.
Justice Jackson: But I guess I'm asking, do you do -- isn't the baseline what the state constitution says? We start there and then --
Donald B. Verrilli Jr.: Sure.
Justice Jackson: -- we say are you doing something so far --
Donald B. Verrilli Jr.: Yeah.
Justice Jackson: -- far beyond that?
Donald B. Verrilli Jr.: Is it so far -- is it so far out of bounds that you -- you can't reach it.
Justice Jackson: And the reason we're doing that is because we're worried about some sort of separation of powers issue as between the state legislature and the state courts?
Donald B. Verrilli Jr.: Well, there is some -- I think there is some -- there is a federal interest at play, I think, is the -- is the Official 164 answer because of the Elections Clause. There's a federal interest at play. We think that the federal interest -- the -- the -- that the Elections Clause itself, as we've said, reflects a judgment that the state -- that the -- that you take state legislatures as you find them, which means that they're subject to judicial review under the state constitution because, otherwise -- you know, if they make a law that's unconstitutional under the state constitution, in the words of Marbury, it's no law at all. And so I think that --
Justice Jackson: And they're not really a legislature, presumably --
Donald B. Verrilli Jr.: Right.
Justice Jackson: -- because the constitution tells them --
Donald B. Verrilli Jr.: Well, that -- that -- that's the argument.
Justice Jackson: Yes.
Donald B. Verrilli Jr.: And if I could, there's just one last point I'd like to make about whose ox is being gored here, which I think is quite important. Actually, there's a great deal of Official 165 sentiment in this country about the problems with extreme partisan gerrymandering, and this Court's opinion in Rucho acknowledged it. And states have actually responded in nonpartisan ways. I can think of four states, New York, Florida, California, and Ohio, all of which are in the control of one political party where, presumably, the incentives would have been lined up to maximize partisan advantage through the redistricting process, but in all four of those states, they amended their constitutions through the work of the people to restrict partisan gerrymandering, and -- and those provisions have been enforced. I mean, it was -- the provision was enforced in New York, of course, just earlier this year. And so I do think it is more than whose ox is being gored. This is a really important issue in this country, and I think it would be an extraordinary thing to say, as my friends on the other side are saying here, that the Elections Clause requires that all of those provisions and countless others be -- be disabled with respect to congressional elections. That would be an extraordinary thing Official 166 to do, and, before doing that, I would hope that the Court would -- would see a case much, much clearer than the one that the Petitioners have presented. Thank you.
Chief Justice Roberts: Thank you, counsel. General Prelogar. ORAL ARGUMENT OF GENERAL ELIZABETH B. PRELOGAR, FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS
Elizabeth B. Prelogar: Mr. Chief Justice, and may it please the Court: Throughout our nation's history, state legislatures enacting election laws have operated within the bounds of their state constitutions enforced by state judicial review. This practice dates from the Articles of Confederation, and the Framers carried it forward by using parallel language in the Elections Clause to assign state legislatures a duty to make laws. Text, long-standing practice, and precedent show that the Elections Clause did not displace this ordinary check on state law-making. Petitioners' contrary theory Official 167 rejects all of this history and would wreak havoc in the administration of elections across the nation. Their theory would invalidate constitutional provisions in every single state, many tracing back to the founding. That would sow chaos on the ground as state and federal elections would have to be administered under divergent rules and federal courts, including this Court, would be flooded with new claims, often at the 11th hour, in the midst of hotly contested elections. The Court should adhere to the consistent practice that has governed for more than two centuries and should reject Petitioners' atextual, ahistorical, and destabilizing interpretation of the Elections Clause.
Justice Thomas: General, I must say it's -- I think it's -- it's seems a bit ironic that you're on the other side of a federalism issue. The -- do you agree with the highly deferential standard that we've been discussing here?
Elizabeth B. Prelogar: We do --
Justice Thomas: It would seem to take Official 168 you out of the equation or the national government out of the equation.
Elizabeth B. Prelogar: No, not at all. Justice Thomas, we, of course, recognize that Congress has its own check under the second half of the Elections Clause, and that remains constant no matter what the states are doing through their state election laws. But as well, with respect to this idea of whether there is an outer federal constitutional standard that could apply here, we agree that that's so and the Court could recognize that kind of constitutional claim. Now we also agree that that would have to be highly deferential, and I think that that stems from the recognition that to state this kind of claim under the Elections Clause you would have to be identifying a situation where a state court isn't actually engaged in the process of judicial review. We understand the Elections Clause to pick up through the law-making function that ordinary check and balance. And so, if a state court is conducting judicial review and is interpreting its state constitution, that -- Official 169 that presents no fundamental conflict with the Elections Clause itself. So the standard would have to be trying to identify those circumstances when a state court isn't really functioning through the process of ordinary judicial review, and we think that that would be an extraordinary situation that it's unlikely to arise very often, but there is an outside federal constitutional check that could be applied in this context.
Justice Gorsuch: General, just to -- oh, I'm sorry.
Justice Thomas: No. Just one last point. It would seem that that would preclude you, your involvement, if the Florida -- I'm -- I'm sorry, the North Carolina Supreme Court had a decision or rendered a decision that was not generous or less generous or actually antagonistic to an interest that you would normally defend.
Elizabeth B. Prelogar: We agree that our theory does not depend on the particular state constitutional provision that's being enforced. Of course, there are a panoply of federal laws Official 170 that apply in this context as well. And so, if there was some state constitutional provision like you were positing earlier that would be fundamentally in conflict with the Voting Rights Act, then, of course, under the Supremacy Clause, that provision would have to yield.
Justice Gorsuch: General, I should have asked this question to Mr. Verrilli, so apologies to both of you. Just what is the status of the state court proceedings right now?
Elizabeth B. Prelogar: So my understanding is that the appeal of the remedial map --
Justice Gorsuch: Yeah.
Elizabeth B. Prelogar: -- is still pending. And I -- I don't know when a decision is expected. I thought I saw in the briefing somewhere that it was expected by the end of this year, but I don't believe it's arrived yet.
Justice Gorsuch: Okay. That's helpful. Thank you. And then I just wanted you to address what I understood the other side's argument to be -- and -- and I may be misstating it, so forgive me, both of you -- that Chief Justice Rehnquist's theory that there's some outer bounds, and we can disagree over or argue Official 171 about whether or how -- how far in the atmosphere it should go, make sense because, to the extent, as Justice Barrett was pointing out, the question before us is whether the rule, the time, place, and manner regulation has been prescribed by the legislature. And we can say, hey, ordinarily, courts will interpret and apply the rules prescribed by the legislature, and executive agents will enforce the rules prescribed by the legislature pursuant to their ordinary obligations as executive officers. I get that. But it's something different, I think the argument goes from the other side, when a state court says or any -- any institution says we're not going to enforce the rules prescribed by the legislature for whatever reason, in this case it's because of the state constitution, but it could be an executive officer who contumaciously refuses to do so or whatever one imagines. But, here, by definition, I think we're in agreement that the rules prescribed by the legislature are not going to be applied in this case. So I think that's the argument as I Official 172 understand it. I just wanted to give you a chance to address it because I haven't heard anybody address it yet.
Elizabeth B. Prelogar: Sure, and I appreciate the opportunity to do so. So I think that the premise of the question was focused on the legislature's power under the Elections Clause to set the time, place, and manner of federal elections. And if I'm understanding the question correctly, our view is not that it would transgress the legislature's power to depart from its law when that's the ordinary practice of judicial review. It might be the case that the legislature's work has to yield to a state constitutional provision because however they prescribe the time, place, and manner of elections could violate equal protection, for example, under the state constitution as well as the federal if it violates one-person, one-vote. So sometimes state courts through the ordinary process of judicial review and constitutional adjudication are, of course, setting aside what the legislature has done with respect to its manner regulations.
Justice Gorsuch: And -- and by Official 173 definition invoking some higher authority under state law to not enforce the rules about time, place, and manner prescribed by the legislature, right?
Elizabeth B. Prelogar: Correct, and our theory is that that's consistent with the Elections Clause under this Court's precedent because the Framers vested the state legislature with their law-making power, and that has always been understood to be subject to state constitutional constraints. There is no category of state law that has previously existed that detaches the state legislature from the state constitution and allows it free rein to have whatever laws it wants without that state constitutional check. And we think that the text and the history and precedent forcefully reinforce this idea that the Framers would have understood that when they were giving this law-making power it carried with it those ordinary checks and balances.
Justice Kagan: And when Mr. Thompson says, well, it should be subject to the constraint of federal review but not of -- of state constitutional review, what do you think Official 174 of that distinction?
Elizabeth B. Prelogar: I think this Court has rejected that distinction already in cases like Smiley and Hildebrant, and they rejected exactly the theory that my friend has proposed about looking at the federal function. In Smiley, the Court said that's not what you look at. You look at the specific function that's been assigned. And when it's a law-making function, that carries with it the ordinary checks and balances that apply to state law, including those applied by the state constitution. That was the very distinction the Court draw -- drew with Hawke versus Smith and the separate ratification function. That's a different question. And cases like Leser that he's repeatedly relied on are looking at a different function under the Constitution. But, with law-making, the relevant fact is that the Framers would have understood that that comes with it judicial review and state constitutional constraints, both substantive and procedural.
Justice Jackson: Because the Official 175 law-making authority of the entity in question comes from the state constitution, right? I mean, if it's a law-making function that we're tapping into, it's the state constitution that gives that entity its law-making power and tells it when and under what circumstances and how it can act as the legislature, right?
Elizabeth B. Prelogar: Exactly. And this is blackletter law, Justice Jackson. A law that violates the Constitution is no valid law at all. And North Carolina, like in many other places, it's void ab initio. That is the kind of constraint that goes into and -- and describes the conditions that attach to the making of law in the first place.
Justice Jackson: So, in effect --
Chief Justice Roberts: Well --
Justice Jackson: -- it's as though the state court is saying you are not "the legislature" for the purpose of the Elections Clause.
Elizabeth B. Prelogar: Within the meaning of the Elections Clause --
Justice Jackson: Yes.
Elizabeth B. Prelogar: -- yes, because Official 176 that's a law-making role, we think that the -- that the Framers would have understood that it's carrying with it that constraint. And that traces directly from the Articles of Confederation because they similarly prescribed this kind of function on state legislatures to provide for the manner of selecting delegates to the Continental Congress, and virtually every state constitution in the relevant period, 10 out of 11, had substantive constraints that hemmed in the legislature in how they carried out that function --
Chief Justice Roberts: Well, it's not -- it's not --
Elizabeth B. Prelogar: -- and that was a familiar practice.
Chief Justice Roberts: -- it's not really that easy, is it, because the reason we have a case is because the power does not simply come from the state constitution, but the power comes from the federal Constitution, which authorizes the legislature to carry it into effect. So the reason there is a case is because of the concern that the state constitutional provision or, in analogous cases, Official 177 the statutes conflict with the federal Constitution, which authorizes the legislature, which -- a concept that was known to the Framers to undertake this responsibility. So I think whichever way you think about in terms of how it should come out, I think you have to address the fact that there is that tension, a -- a tension that we address on a regular basis between the state power and the federal power.
Elizabeth B. Prelogar: Of course, I acknowledge that that makes this a case, Mr. Chief Justice, but I think using all of the traditional tools here, both with respect to text, history, precedent, each of those counsels forcefully against drawing this kind of substance/procedure distinction. I don't see how you get there on the text alone because, once the Court has understood and explained in numerous cases that this is a law-making function, as Justice Kagan explained when she read aloud from this Court's cases, that has been understood to mean that all of the ordinary constraints on law-making attach. And this is one of the most fundamental and ordinary constraints on law-making. Official 178 And then there's the history, the Articles of Confederation.
Chief Justice Roberts: Well, if I can -- I don't mean to -- well, I guess I do mean to interrupt, but the way you phrased it is exactly, I guess, where the argument this morning has mostly gone. You say the ordinary restraints, and I think that's what Chief Justice Rehnquist was trying to get at. That's what you -- whatever standard you want to say, whether it's ordinary or, you know, once in a blue moon, you're saying that that is the question, is what the state is doing, which has the impact on the federal constitutional authority given to the legislature, ordinary or outrageous, however you want to -- to say it. So you do accept the proposition that there is a role for this Court in particular to assess whether or not -- how that conflict is worked out in a particular case?
Elizabeth B. Prelogar: I do acknowledge that, but I would emphasize in trying to think about this both from a legal standpoint and if I could from a practical standpoint that I would think the Court would want to make clear that Official 179 this is a very deferential standard. It is not the ordinary case where the Court is second-guessing a state court's interpretation of its own state law. Usually, the Court treats the state courts as conclusive expositors of state law because they have way more institutional competence in their own methodologies, which, of course, may differ from the methodologies this Court would deploy with respect to the federal Constitution, and they have a lot more familiarity with the content of their state law. So I think, to situate this kind of test within this Court's broader doctrine in this area, it would be necessary to recognize that this is not just about thinking that the state court might have gotten it wrong or -- or even very wrong but rather trying to identify the narrow circumstances where the Court can't properly be understood to be conducting judicial review in the first place. It's not acting like a court, because that is the kind of thing that would then seize the legislatures' policymaking power and be understood to transgress the Elections Clause. Official 180 And just a quick note on the practical point. Any I think lesser rule in this context would invite constant challenges brought in federal courts seeking to relitigate these state law issues often in the midst of these elections as they're unfolding on the ground, and I think it would be important to try to put a check on that type of second bite at the apple that litigants would otherwise try to obtain.
Justice Alito: May I ask you a couple of questions about your interpretation of two federal statutory provisions that you cite, 28 U.S.C. 2(a)(C) and 2(a). And 2(a)(C) refers to the law of each state, and then it speaks about the law thereof. Does that -- when it speaks about the law of such state, is it talking just about state law, or is it also talking about provisions of federal law that are applicable in that state and for that matter in every other state in the country? For example -- okay. Yeah.
Elizabeth B. Prelogar: Go ahead.
Justice Alito: No.
Elizabeth B. Prelogar: I was going to say Official 181 we --
Justice Alito: You first.
Elizabeth B. Prelogar: -- we understand that provision to reflect Congress's recognition that a state can be apportioned in accordance with its law and I would say also in accordance with federal law as it would need to comply with federal law in multiple different ways, including through the involvement of different actors. And so the Court has already concluded in cases like Branch versus Smith that that would include court-drawn remedial maps, for example. That's apportionment --
Justice Alito: Okay. So these --
Elizabeth B. Prelogar: -- by law.
Justice Alito: -- I mean, these -- these provisions talk about districts prescribed by the law of such state, but it -- included within that are federal constitutional constraints, the federal Equal Protection Clause, one-person, one-vote, the Voting Rights Act, right, that is the law of the state?
Elizabeth B. Prelogar: I would say yes, those are the present laws.
Justice Alito: And, if that's true, Official 182 why isn't the Election Clause the law of the state?
Elizabeth B. Prelogar: We think the Election Clause is the law of the state, but there's no incompatibility with that law --
Justice Alito: Okay. But then that --
Elizabeth B. Prelogar: -- and with the recognition --
Justice Alito: Yeah.
Elizabeth B. Prelogar: -- that when state legislatures are doing law-making, just as with the --
Justice Alito: Right. Okay.
Elizabeth B. Prelogar: -- the governor's veto you can have state constitutional checks.
Justice Alito: No, I understand -- I understand all that. I'm just talking to -- trying to see whether these statutes add anything, and in light of your answer, it doesn't seem to me they add anything because we're still back to the question of the interpretation of the federal Constitution, right?
Elizabeth B. Prelogar: I agree there's a Official 183 federal constitutional question here. We think that these statutes add for purposes of this case just additional confirmation from Congress that it recognized that other organs of the state government, including courts, could play a role in the process.
Justice Alito: I don't think that's really responsive to my question. If the law thereof includes the Equal Protection Clause in the U.S. Constitution and it includes the Voting Rights Act, then it includes also the Elections Clause, and I understood you to agree with that. So we're back to these -- these statutes are not an alternative way to decide the case. It takes us back to the Election Clause constitutional question, right?
Elizabeth B. Prelogar: That's right, we haven't asked --
Justice Alito: Okay. Thanks.
Elizabeth B. Prelogar: -- the Court to resolve this case on the basis of these statutes.
Chief Justice Roberts: Thank you, counsel. Justice Thomas, anything further? Official 184 Justice Sotomayor?
Justice Sotomayor: In fairness to Petitioner, I think that what they're trying to say when they draw this procedural/substantive line or this other line of open-ended or specific constitutional provisions, that they're trying to articulate, maybe inarticulately, but articulate that we have to reach the question of how -- when does the federal constitutional provision spring up, meaning at what point has a court acted not as in judicial review but in legislating, and so how would -- and I think Mr. Verrilli gave us a line. What's your line? How would you articulate it?
Elizabeth B. Prelogar: So I'm happy to give you a line. I'll just say that I don't actually understand them to -- to try to conflate those two arguments. I think that they are trying to make a sweeping argument here that even if the court is acting like a court and faithfully engaged in the process of judicial review, they would nevertheless invalidate any number of constitutional provisions around the states and say those are unenforceable through that limited process of review. Official
Justice Sotomayor: I -- I agree with you, that's what they're trying to say.
Elizabeth B. Prelogar: Yes. So -- but just to try to be responsive to your question about a standard, we think that there are obviously multiple formulations that have been offered and are available to the Court, but we think the closest analogue to try to track this problem I've described of when a court is not faithfully engaged in judicial review is to borrow from the adequate and independent state grounds context and specifically the civil rights cases, where the Court has said that if the state court decision is so lacking in any basis and has no fair or substantial support and can only be understood as an effort to frustrate federal rights, then the Court can look past that decision. And, again, we think that this is a high bar. It's not testing for exactly the same thing because, in that context, novelty might be important, for example, if you're surprising a civil rights plaintiff to try to deny a federal forum. Here, we don't think that novelty would carry much weight in the analysis. Official 186 But we do think that formulation of lacking any fair or substantial support with deference shown to the state's own methodologies and its constitutional interpretation is trying to get at the same idea of when the court is actually abdicating its judicial role and instead claiming raw policymaking power.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: On your side of the podium, we have one vote in favor of a gap between constitutional and statutory questions and one vote saying it's the -- it's the same, so you get to decide. (Laughter.)
Elizabeth B. Prelogar: I love casting a deciding vote. We don't think that there is a --
Justice Kagan: Just on your side of the podium.
Elizabeth B. Prelogar: Sadly, yes. I think that it wouldn't make sense to deploy a different standard or formulation with respect to statutory and constitutional questions because, again, you'd be testing for the same thing, when is this not the court acting like a Official 187 court when it has gone off the rails and it's just doing policy under the guise of statutory interpretation or constitutional interpretation. But I agree with Mr. Verrilli that I think, in application, this could often come out differently in the sense that usually in statutory interpretation you have a text before you and it might be more evident whether this is just a stark departure from the legislature's work. In the context of constitutional adjudication and contrast, there are often broad provisions, as there are under the federal Constitution, and I think that federal courts should not be in the business of saying that the state courts aren't giving those, for example, just a fair reading looking at their text alone because there is often a lot of additional methodology that has to go into properly interpreting those provisions and distilling them into principles and concrete cases.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: No.
Chief Justice Roberts: Justice Official 188 Barrett? Justice Jackson?
Justice Jackson: Just finally, to be clear, the -- in -- in answer, in response to Justice Sotomayor, the reason you see the counsel on the other side as making a sweeping argument that doesn't really require us to employ a test to determine when a court is acting as a court is because they have conceded that this is a court acting as a court, but even still they say its decision needs to be cut out because it's based on state constitutional law and not federal constitutional law. Am I understanding?
Elizabeth B. Prelogar: That's -- that's exactly right. So they have said multiple times today that they are not asking this Court to delve into the ins and outs of the North Carolina Supreme Court's decision here, that they -- they said they take it at faith -- faith -- face value --
Justice Jackson: Right.
Elizabeth B. Prelogar: -- as an accurate understanding of North Carolina law. And they're instead making far more sweeping Official 189 arguments that would take off the table 233 years of history in this country, state constitutional provisions that have applied under the Articles of Confederation, in the early decades of the republic, and still today, and we think that that would be a distortion of the meaning of the Elections Clause, and it would have enormous and drastic practical consequences.
Justice Jackson: So we can rule here today without adopting any particular test, like Mr. Verrilli's or anything else?
Elizabeth B. Prelogar: Yes, we agree that it wouldn't be necessary in this case to articulate that standard because we don't think that they're pressing that kind of claim in this case.
Chief Justice Roberts: Thank you, counsel. Rebuttal, Mr. Thompson. REBUTTAL ARGUMENT OF DAVID H. THOMPSON ON BEHALF OF THE PETITIONERS
David H. Thompson: Thank you, Mr. Chief Justice. Just a few quick points. Number one, on what I meant -- the -- Official 190 the extent to which we are accepting what the North Carolina Supreme Court's ruling was here as a valid and fair expression of state law, we are doing that for purposes of the two tests that we articulated in our brief. Number one, there can't be any substantive restraint on the state legislature, and number two, it lacked a judicially discoverable and manageable standard. But make no mistake, would this Court say, well, we want to adopt a third standard, we want to take the Bush versus Gore standard and we want to apply it to state constitutions, I would make two points. Number one, the test for a state constitution should be easier to meet than a statute because, for purposes of the Elections Clause, it's far more problematic when a state legislature has its hands tied by a state constitution than when it's tied by a state legislate -- an impermissible distortion of a statute which they can just go back and rewrite. And the second point I would make is, under that standard, and we've heard a multiplicity of standards, but under any of the standards, we think what the North Carolina Official 191 Supreme Court here did would run afoul of all of those standards because it was not grounded in the text, it was not grounded in the history, and it was not grounded in precedent. Now I would also like to address the suggestion that there will be an increase in cases if the Court were to adopt our standard as opposed to their standard. It's very important to understand that my friends on the other side are articulating two trip wires. They have now articulated two ways in which the Elections Clause could be violated. One is their panoply of stratospheric tests for running -- impermissibly distorting state law. But the second way, which they've never disclaimed, it's in their briefs on page 57, is they acknowledge that if the legislature, state legislature is deprived a central role, a central role, then that would be a separate way to violate the Elections Clause, and they never tell this Court how that functionalist test is going to be interpreted, how it's going to be applied, and there will be far more litigation under the -- the standards and the tests that my friends on the other side are asking this Court Official 192 to apply. Now I'd also like to point out that they've said that there would be two sets of rules, rules for federal elections and rules for state elections, if we prevail. From the founding of the republic, states have had the opportunity to have two different sets of elections code and they've consistently declined that invitation, and there's no reason to think that they would do so in this context. And, finally, there was discussion about history and the Articles of Confederation, and, respectfully, their discussion of the Articles of Confederation ignores the fundamental structural change that occurred when the Articles of Confederation were replaced with the Elections Clause, and so we think that is not relevant. I yield back the balance of my time.
Chief Justice Roberts: Thank you, counsel, all counsel. The case is submitted. (Whereupon, at 12:57 p.m., the case was submitted.)