Why the Court Should Dismiss the Most Important Case of the Year (Moore v Harper).

 By Eric Segall

Professor Mark Lemley recently wrote the following striking paragraph in the Harvard Law Review in an article titled the "Imperial Supreme Court."

The past few years have marked the emergence of the imperial Supreme Court. Armed with a new, nearly bulletproof majority, conservative Justices on the Court have embarked on a radical restructuring of American law across a range of fields and disciplines. Unlike previous shifts in the Court, this one isn’t marked by debates over federal versus state power, or congressional versus judicial power, or judicial activism versus restraint. Nor is it marked by the triumph of one form of constitutional interpretation over another. On each of those axes, the Court’s recent opinions point in radically different directions. The Court has taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts. And it has done so using a variety of (often contradictory) interpretative methodologies. The common denominator across multiple opinions in the last two years is that they concentrate power in one place: the Supreme Court.

One striking example of this power grab is a case from a few years ago, Trinity Lutheran v. Comer, involving the religion clauses, where the Court decided the merits of a Missouri grant program excluding religious schools even though by the time the case was argued, a different governor had been elected, he had changed the policy to allow religious schools to apply, and all the parties to the case agreed on every issue in the litigation. The Court should have dismissed the case for both mootness and a total lack of adversarialness, but instead the Court issued a major constitutional decision giving the free exercise clause prominence and essentially reading the establishment clause out of the Constitution.

When the current Term started, despite the important affirmative action, free speech, and other constitutional law cases on the docket, many Court watchers thought that Moore v. Harper, a North Carolina case with country-changing implications for our elections, was the most important case of the year. In Moore, the North Carolina Supreme Court allowed plaintiffs to successfully challenge a redistricting map on the basis that it was an illegal gerrymander under the state constitution. The defendants' argument that the federal constitution does not allow a state court to oversee state elections under state law because of a provision of the federal Constitution, known as the Independent State Legislature theory ("ISL"), was rejected by the state court. Although there were still some proceedings in the lower courts after the decision, the United States Supreme Court decided to hear the case to decide the validity of the ISL theory.

But a funny (or tragic) thing happened on the way to the final decision. On April 28th, the North Carolina Supreme Court changed course after last November's state elections gave the GOP a majority of the justices on the court. The new decision did not address the ISL theory but instead held that claims of partisan gerrymandering under the state constitution are not justiciable in state court. North Carolina's decision rested completely on state law. The April 28th decision concluded the following:

This Court’s opinion in Harper I is overruled. We affirm the three-judge panel’s Harper v. Hall Opinion of the Court concluding ... that claims of partisan gerrymandering present nonjusticiable, political questions and dismissing all of plaintiffs’ claims with prejudice. This Court’s opinion in Harper II is withdrawn and superseded by this opinion... Plaintiffs’ claims are dismissed with prejudice. 

After this decision was published, the United States Supreme Court, for the second time, asked the parties if the case could continue given the decision (the Court previously asked the parties the same question after the North Carolina Supreme Court granted a motion for rehearing but before the decision was announced). Plaintiff Common Cause and the North Carolina legislature want the case to continue in the United States Supreme Court, while the other plaintiffs and the United States government believe the Court should dismiss the case. 

Although the federal issue raised by this case--whether the ISL theory deprives state supreme courts and maybe state governors from reviewing redistricting maps created by state legislatures--is undeniably incredibly important and, if accepted, would have major and likely chaotic effects on our elections and our country, the Court nonetheless should dismiss the case. As one party noted, "there is no non-frivolous basis for jurisdiction," remaining in the case.

Election law attorney Marc Elias, who represents some of the plaintiffs, told the Supreme Court in a letter brief that, given the new state court opinion, the petitioners no longer have any injury and thus have no standing to appeal, the case is moot, and that there is no longer any final judgment to review given that North Carolina now has to draw new maps or rely on old ones. I agree with all of those arguments but there is a more important and obvious reason why the case must now be dismissed. There is no federal claim or defense left in the case because there is an adequate and independent state ground for the decision. To understand why that is so, we must first review the case proceedings more carefully and then discuss the independent and adequate state ground doctrine.

In Moore I, the North Carolina Supreme Court agreed with the plaintiffs that the redistricting map at issue violated the state constitution because it was an unconstitutional partisan gerrymander. The court also rejected the ISL federal law theory propounded by the defendants.

Normally, the Supreme Court does not hear cases based entirely on state law. An exception to that rule is where the state law or state court decision violates the federal Constitution. In Moore I, that was exactly the argument made by the state legislature based on Article I, Section 4 which states that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." 

The North Carolina legislature argued that this federal constitutional provision prohibits state courts and maybe state governors from having any say in election issues and therefore the North Carolina Supreme Court was not allowed to rule on the plaintiffs' claims that the map at issue violated state law. The court disagreed and rejected the ISL theory. It then remanded the case for further proceedings so that a map legal under state law could be drawn.

Eventually, the North Carolina Supreme Court went from a Democratic majority to a Republican majority. In Moore III (don't worry about Moore II), the state justices reversed Moore I, vacated Moore II, and ruled against the plaintiffs on the grounds that partisan gerrymandering claims are not justiciable under state law. The North Carolina legislature is now completely free to adopt new maps or use old ones.

Although there are substantial standing, mootness, and finality arguments now in the case, the Court need not wrestle with any of those limits on federal jurisdiction because the adequate and independent state ground doctrine requires the Court to dismiss the case. That doctrine holds that "if a state court articulates an adequate state ground for its decision, independent of federal law, then the Supreme Court is without jurisdiction." An example of the doctrine at work is when a plaintiff in state court brings both state and federal claims and the Court rules for the plaintiff on the state law claim and either doesn't rule on the federal claim or rejects it. Because the state court has the final say on state law claims, no matter what the Supreme Court would say on the non-state claims, the plaintiff still wins and the defendant still loses. The state law victory is adequate to support the judgment and independent of federal law.

There are exceptions to this rule, such as where it is unclear on what grounds  state or federal, the state court ruled on, or the state court used a procedural rule in bad faith to not hear a federal claim or defense. Those exceptions clearly do not apply to this case.

The adequate and independent state ground doctrine is derived from the "case or controversy" requirement in Article III. Federal courts from the very beginning do not issue advisory opinions. A case must have real stakes at the time the Court decides the controversy. Should the Court opine on issues of federal law that will not change a state court judgment, it would be issuing an advisory opinion.

Here are undisputed facts:

1) The North Carolina Supreme Court has now held that plaintiffs have no cause of action under state law to bring a partisan gerrymandering claim;

2) That ruling is adequate to support the judgment for the state and against the plaintiffs and is totally independent of federal law; 

3) In the Supreme Court, there is no way the plaintiffs can win or the defendants lose because the Supreme Court cannot overturn the state law decision unless it arguably violates federal law; and

4) The ruling that plaintiffs cannot bring partisan gerrymandering claims under the North Carolina Constitution does not even arguably (or in any possible rational world) implicate federal law.

There is simply nothing the Court can do that will change the judgment below.

The parties that want the case to continue spend almost all of their briefing on standing, mootness, and finality--maybe because they have no real answer to the adequate and independent state ground argument. One of their responses is that real life consequences still turn on whether or not the Supreme Court adopts the ISL theory in whole or in part. Because that is an issue of federal law, they argue, the justices can still resolve it. 

What are those consequences? The explanation is complicated and technical and has to do with what is the exact status of the first Moore decision and the viability of the subsequently drawn maps by special masters appointed by the lower court. The United States responded to this argument as follows in their letter brief to the Supreme Court: 

But because the 2022 congressional election has passed and the court-drawn map will not be used again, this Court can no longer redress that injury. And in light of the North Carolina Supreme Court’s decision on rehearing, there is no reason to think that Harper I and the subsequent denial of a stay will have any effect on the rules governing North Carolina’s congressional elections going forward.

That's a persuasive argument but there's an even better one. It does not matter what further consequences the recent North Carolina Supreme Court's decision has on future elections because there is no federal claim or defense left in the case. The Supreme Court does not hear cases to review legal theories but to render judgments and decide who wins and who loses. The state has won this case under an adequate and independent state ground, and there's nothing the Court can do to alter that judgment. Under existing law, the Court must dismiss the case.

The parties who argue that the Court should retain jurisdiction also do so for the prudential reasons that the validity in whole or in part of the ISL doctrine is incredibly important, will have to be litigated sometime, this case is fully briefed, and better to resolve the issue well in advance of the 2024 elections rather than on some kind of emergency or shadow docket basis.

I have sympathy for those prudential arguments but they cannot carry the day. The adequate and independent state ground doctrine is central to federalism. Where a state's highest court makes a decision on state law grounds that no federal claim or defense can affect, the United States Supreme Court needs to let the decision stand; otherwise state courts will no longer be the final arbiter of state law. As the case currently stands, there is no viable federal claim left for the plaintiffs, and the merits or not of the ISL theory cannot change the final outcome in either direction. Once again, the state has won and the plaintiffs have lost and there is nothing at all the Court can do about it.

Professor Lemley is exactly right that the Roberts Court has a clear pattern of taking power for itself unnecessarily and often wrongly. One of the most important limits on the Court is the adequate and independent state ground doctrine. Should the Court decide to hear Moore despite the fact that there are no longer any federal claims or defenses that can change the state supreme court's judgment, it will once again raise the flag of the Imperial Supreme Court.