Monday, November 28, 2022
Headshot of Professor Derek Muller

Professor Derek T. Muller is the Ben V. Willie Professor in Excellence and Professor in Law at the University of Iowa College of Law. As a nationally-recognized election law scholar, Professor Muller recently filed an amicus brief in Moore v. Harper, a case about partisan gerrymandering in North Carolina. The United States Supreme Court will hear oral argument on December 7. We spoke with Professor Muller about the case, and about his brief that you can find here.


Q. What’s Moore v. Harper about?

A. After the 2020 Census, states have to redistrict their legislative maps. They must redraw the maps that elect members to Congress to ensure equal numbers of people live in each district. The North Carolina legislature redrew its congressional districts, but some voters sued, arguing that the maps were a partisan gerrymander. They claimed the maps unfairly entrenched Republican candidates and diluted the power of Democratic voters. The North Carolina Supreme Court agreed and concluded that under the North Carolina Constitution, the map was unconstitutional. The North Carolina legislature is appealing that decision to the United States Supreme Court.

Q. What is the legislature arguing in its appeal?

A. Usually, federal courts don’t have much to say about how state courts interpret state law. But the North Carolina legislature is arguing that the United States Constitution gives the state legislature a special role in federal elections. Article I, Section 4 of the Constitution provides, “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”

The Constitution expressly gives the “legislature” of the state the power to prescribe the rules for federal elections. It doesn’t give that power to state courts. And it means that the legislature is not constrained by the state constitution. Instead, the North Carolina legislature argues that is only limited by the federal constitution and by Congress. That means it can enact a new map for congressional elections without being limited by the state courts.

The North Carolina legislature argues that the state supreme court acted inappropriately for a special additional reason, too. There is no explicit “anti-gerrymandering” clause in the North Carolina constitution. Instead, the state supreme court construed four different provisions of the state constitution together to develop an anti-gerrymandering standard.

Q. What’s the other side arguing?

The plaintiffs who brought the case argue that this reading of the Constitution is absurd. They point to other Supreme Court precedents that say the governor can veto redistricting maps or that the people can reject them by referendum. The governor or the people are not really part of the institution of the “legislature.” And there’s nothing that prevents the state from organizing its lawmaking as it sees fit. State legislatures are obligated to follow their state constitutions when passing other types of laws, and this should be no different.

Q. You filed an amicus brief in this case. What is that?

A. It’s Latin for “friend of the court.” Lawsuits are often between two parties, a plaintiff and a defendant, and those parties argue the case from the trial court through any appeals. But sometimes, other people may want to raise arguments to a court to draw attention to legal or factual issues that they believe would assist the court in reaching its decision. In high-profile cases before the United States Supreme Court, there may be dozens of briefs filed. In Moore, there are more than sixty briefs, some supporting one side or another, and some supporting no one in particular. I’m particularly grateful to my attorneys who worked with me on a pro bono basis, Daniel M. Sullivan and Daniel M. Horowitz at the law firm Holwell Shuster & Goldberg LLP.

Q. What’s the argument in your brief?

A. So far, the case has been argued as a constitutional issue. The parties have focused on whether the United States Constitution permits the state court to interpret the state constitution and constrain the state legislature in running a federal election. But I think there’s a different reason the North Carolina legislature should lose here. I argue that a federal law, known as 2 U.S.C. § 2c, already answers the question.

Congress has the power to “make or alter” the rules for congressional elections under the Constitution. A federal law, 2 U.S.C. § 2c, instructs the states to draw congressional districts “by law.” The Supreme Court in other cases has construed the phrase “by law,” here and in similar statutes, to include state courts and state constitutions. In my view, that means Congress has already invited state courts to help answer these questions about congressional redistricting. And Congress has the power under the Constitution to do this. My brief draws the Court’s attention to this issue.

Q. How does this tie in with your research here at Iowa?

A. I write a lot about the role of states in the administration of federal elections, and about the relationship between state and federal law in elections. To name a few, I’ve looked at a recent Supreme Court decision on the Voting Rights Act and how states run elections, the rules that Congress uses when counting presidential electoral votes, the sharp rise in spending on election litigation in federal and state courts, and the scope of power under the Constitution for administering federal elections. There’s something new to write about every year.

Q. What are the implications of this case, depending how the Court rules?

A. If the Court concludes that the North Carolina Supreme Court had it right, then not much changes. There have been a few cases in which state courts have concluded that state legislatures have done the wrong thing in federal elections, but not very often. And there was an unusual surge of such cases in the 2020 election due to litigation about the rules for running elections during the Covid pandemic. But it also means more plaintiffs may try to sue in state court and argue that federal congressional maps are unconstitutional. It could end up giving state courts more power to review state legislatures.

The Court may issue a narrow ruling concluding that the North Carolina legislature is right. It may forbid state courts from using vague provisions of state constitutions to unduly restrict the discretion of state legislatures. Or it could issue a broader ruling and say that state legislatures can act free of any substantive constraints of their state constitutions. That could invite a number of state legislatures to rewrite the rules for federal elections.

It's worth noting, though, that this case only applies to federal elections, not state election. And it doesn’t prevent Congress from stepping in and providing new rules for federal elections if it thinks state legislatures are misbehaving. But it would put new pressure on the political process to resolve these disputes. In the long run, it’s more a wait-and-see approach, as the effects of any decision remain uncertain.