# Moore v. Harper/Opinion of the Court

Notice: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 21–1271
TIMOTHY K. MOORE, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES, ET AL., PETITIONERS v. REBECCA HARPER, ET AL. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA [June 27, 2023]
Chief Justice Roberts delivered the opinion of the Court.
Several groups of plaintiffs challenged North Carolina’s congressional districting map as an impermissible partisan gerrymander. The plaintiffs brought claims under North Carolina’s Constitution, which provides that “[a]ll elections shall be free.” Art. I, §10. Relying on that provision, as well as the State Constitution’s equal protection, free speech, and free assembly clauses, the North Carolina Supreme Court found in favor of the plaintiffs and struck down the legislature’s map. The Court concluded that North Carolina’s Legislature deliberately drew the State’s congressional map to favor Republican candidates.
In drawing the State’s congressional map, North Carolina’s Legislature exercised authority under the Elections Clause of the Federal Constitution, which expressly requires “the Legislature” of each State to prescribe “[t]he Times, Places and Manner of” federal elections. Art. I, §4, cl. 1. We decide today whether that Clause vests state ​legislatures with authority to set rules governing federal elections free from restrictions imposed under state law.
I
The Elections Clause 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 chusing Senators.” Ibid. The Clause “imposes” on state legislatures the “duty” to prescribe rules governing federal elections. Arizona v. Inter Tribal Council of Ariz., Inc., 570 U. S. 1, 8 (2013). It also guards “against the possibility that a State would refuse to provide for the election of representatives” by authorizing Congress to prescribe its own rules. Ibid.
A
The 2020 decennial census showed that North Carolina’s population had increased by nearly one million people, entitling the State to an additional seat in its federal congressional delegation. U. S. Census Bureau, 2020 Census Apportionment Results (2021) (Table A). Following those results, North Carolina’s General Assembly set out to redraw the State’s congressional districts. North Carolina League of Conservation Voters, Inc. v. Representative Destin Hall, 21 CVS 015426 etc. (Super. Ct. Wake Cty., N. C., Dec. 3, 2021), App. to Pet. for Cert. 260a–261a, rev’d and remanded on other grounds, Harper v. Hall, 380 N. C. 317, 868 S. E. 2d 499 (2022) (Harper I). The General Assembly also drafted new maps for the State’s legislative districts, including the State House and the State Senate. Id., at 328–329, 868 S. E. 2d, at 513. In November 2021, the Assembly enacted three new maps, each passed along party lines. Id., at 329, 868 S. E. 2d, at 513; see N. C. Gen. Stat. Ann. §120–1 (2021) (State Senate); §120–2 (State House); §163–201 (U. S. House of Representatives).
​Shortly after the new maps became law, several groups of plaintiffs—including the North Carolina League of Conservation Voters, Common Cause, and individual voters—sued in state court. The plaintiffs asserted that each map constituted an impermissible partisan gerrymander in violation of the North Carolina Constitution. Harper I, 380 N. C., at 329–330, 868 S. E. 2d, at 513–514. At trial before a three-judge panel of the Wake County Superior Court, the plaintiffs presented expert testimony and other evidence to support their claims that North Carolina’s General Assembly drew state legislative and federal congressional maps to favor Republican candidates. Id., at 332, 868 S. E. 2d, at 515. The trial court agreed, finding that the General Assembly’s 2021 congressional districting map was “a partisan outlier intentionally and carefully designed to maximize Republican advantage in North Carolina’s Congressional delegation.” Id., at 345, 868 S. E. 2d, at 522 (internal quotation marks omitted). But the court denied relief, reasoning that the partisan gerrymandering claims “amounted to political questions that are nonjusticiable under the North Carolina Constitution.” Id., at 348, 868 S. E. 2d, at 524.
The North Carolina Supreme Court reversed, holding that the legislative defendants violated state law “beyond a reasonable doubt” by enacting maps that constituted partisan gerrymanders. Id., at 353, 868 S. E. 2d, at 528. It also rejected the trial court’s conclusion that partisan gerrymandering claims present a nonjusticiable political question. Ibid. The Court acknowledged our decision in Rucho v. Common Cause, which held “that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” 588 U. S. ___, ___ (2019) (slip op., at 30); ​see Harper I, 380 N. C., at 360–361, 868 S. E. 2d, at 532–533. But “simply because the Supreme Court has concluded partisan gerrymandering claims are nonjusticiable in federal courts,” the court explained, “it does not follow that they are nonjusticiable in North Carolina courts.” Id., at 361, 868 S. E. 2d, at 533. The State Supreme Court also rejected the argument that the Elections Clause in the Federal Constitution vests exclusive and independent authority in state legislatures to draw congressional maps. Id., at 390–391, 868 S. E. 2d, at 551–552.
After holding that the 2021 districting maps “substantially infringe upon plaintiffs’ fundamental right to equal voting power,” the Court struck down the maps and remanded the case to the trial “court to oversee the redrawing of the maps by the General Assembly or, if necessary, by the court.” Id., at 403, 868 S. E. 2d, at 559. The Court entered judgment on February 15, 2022. Harper v. Hall, No. 413PA21, App. to Pet. for Cert. 306–309. Two days later, the General Assembly adopted a remedial congressional redistricting plan. See 2022 N. C. Sess. Laws p. 3, §2. But the trial court rejected that plan and adopted in its place interim maps developed by several Special Masters for use in the 2022 North Carolina congressional elections. North Carolina League of Conservation Voters, Inc. v. Representative Destin Hall, 21 CVS 015426 etc. (Super. Ct. Wake Cty., N. C., Feb. 23, 2022), App. to Pet. for Cert. 278a–279a, aff’d in part, rev’d in part, and remanded, Harper v. Hall, 383 N. C. 89, 881 S. E. 2d 156 (2022) (Harper II).
On February 25, 2022, the legislative defendants filed an emergency application in this Court, citing the Elections Clause and requesting a stay of the North Carolina Supreme Court’s decision. We declined to issue emergency relief but later granted certiorari. 597 U. S. ___ (2022).
B
Following our grant of certiorari, the North Carolina Supreme Court heard an appeal concerning the trial court’s remedial order. In December 2022, the Court issued a decision affirming in part, reversing in part, and remanding the case. As relevant, it agreed with the trial court’s determination that the General Assembly’s remedial congressional plan “fell short” of the requirements set forth in Harper I. Harper II, 383 N. C., at 125, 881 S. E. 2d, at 181.
The legislative defendants sought rehearing, requesting that the North Carolina Supreme Court “withdraw” its remedial opinion in Harper II. Pet. for Rehearing in Harper v. Hall, No. 413PA21, p. 25 (Jan. 20, 2023) (Pet. for Rehearing). They also asked the Court to “overrule” its decision in Harper I, although they conceded that doing so would not “negate the force of its order striking down the 2021 plans.” Pet. for Rehearing 24. The North Carolina Supreme Court granted rehearing in Harper II, and we ordered the parties to submit supplemental briefing concerning our jurisdiction over this case in light of that decision.
Following the parties’ submission of supplemental briefs in this Court, the North Carolina Supreme Court issued a decision granting the requests made by the legislative defendants. The Court withdrew its opinion in Harper II, concerning the remedial maps, and “overruled” its decision in Harper I. See Harper v. Hall, ___ N. C. ___, 886 S. E. 2d 393 (2023). Relying on our decision in Rucho and on a renewed look at the constitutional provisions at issue, the Court repudiated Harper I’s conclusion that partisan gerrymandering claims are justiciable under the North Carolina Constitution. See ___ N. C., at ___, 886 S. E. 2d, at 431.
The North Carolina Supreme Court dismissed the plaintiffs’ claims with prejudice. Id., at ___, 886 S. E. 2d, at 401. But it did not reinstate the 2021 congressional plans that Harper I had struck down under the North Carolina ​Constitution. ___ N. C., at ___, 886 S. E. 2d, at 446–448. Instead, the Court provided the General Assembly with the “opportunity to enact a new set of legislative and congressional redistricting plans, guided by federal law, the objective constraints in Article II, Sections 3 and 5 [of the North Carolina Constitution], and this opinion.” Id., at ___, 886 S. E. 2d, at 448. The Court did not revisit Harper I’s conclusion that the Federal Elections Clause does not shield state legislatures from review by state courts for compliance with state constitutional provisions. ___ N. C., at ___, 886 S. E. 2d, at 422 (“The General Assembly exercises [redistricting] authority subject to the express limitations in our constitution and in federal law.”). We invited the parties to submit additional supplemental briefs addressing the effect of the Court’s decision on our jurisdiction.
II
Before turning to the merits, we must “determine as a threshold matter that we have jurisdiction.” Goodyear Atomic Corp. v. Miller, 486 U. S. 174, 178 (1988). The Constitution provides for our jurisdiction over “Cases” and “Controversies.” Art. III, §2. That constitutional requirement ensures that the parties before us retain a “personal stake” in the litigation. Baker v. Carr, 369 U. S. 186, 204 (1962). As “[a] corollary to this case-or-controversy requirement,” there must exist a dispute “at all stages of review, not merely at the time the complaint is filed.” Genesis HealthCare Corp. v. Symczyk, 569 U. S. 66, 71 (2013) (internal quotation marks omitted). Mootness doctrine “addresses whether an intervening circumstance has deprived the plaintiff of a personal stake in the outcome of the lawsuit.” West Virginia v. EPA, 597 U. S. ___, ___ (2022) (slip op., at 15) (alterations and internal quotation marks omitted).
The North Carolina Supreme Court’s decision to withdraw Harper II and overrule Harper I does not moot this ​case. The plaintiffs here sought to enjoin the use of the 2021 plans enacted by the legislative defendants. Harper I granted that relief, and in doing so rejected the Elections Clause defense at issue before us. 380 N. C., at 403, 868 S. E. 2d, at 559. Prior to both the appeal and rehearing proceedings in Harper II, the North Carolina Supreme Court had already entered the judgment and issued the mandate in Harper I. See App. to Pet. for Cert. 306–309. And the time during which the defendants could seek rehearing as to that judgment had long since passed. See N. C. Rule App. Proc. 31(a) (2023) (requiring that a rehearing petition be brought within 15 days of the issuance of the mandate). Recognizing this reality, the legislative defendants did not ask the North Carolina Supreme Court to disturb the judgment in Harper I as part of the rehearing proceedings. They instead acknowledged that they would remain bound by Harper I’s decision enjoining the use of the 2021 plans. See Pet. for Rehearing 24 (“[O]verruling Harper I will not negate the force of its order striking down the 2021 plans.”).
The North Carolina Supreme Court “overruled” Harper I, thereby granting the specific relief requested by the legislative defendants. As a result, partisan gerrymandering claims are no longer justiciable under the State’s Constitution. Harper, ___ N. C., at ___, 886 S. E. 2d, at 449. But although the defendants may now draw new congressional maps, they agree that the North Carolina Supreme Court overruled only the “reasoning of Harper I” and did not “disturb … its judgment nor … alter the presently operative statutes of North Carolina.” Second Supp. Letter Brief for Petitioners 3. In other words, although partisan gerrymandering claims are no longer viable under the North Carolina Constitution, the North Carolina Supreme Court has done nothing to alter the effect of the judgment in Harper I enjoining the use of the 2021 maps. As a result, the legislative defendants’ path to complete relief runs through this Court. ​Were we to reverse the judgment in Harper I—a step not taken by the North Carolina Supreme Court—the 2021 plans enacted by the legislative defendants would again take effect. The parties accordingly continue to have a “personal stake in the ultimate disposition of the lawsuit.” Chafin v. Chafin, 568 U. S. 165, 172 (2013) (internal quotation marks omitted).
A North Carolina statute with specific application to this proceeding confirms that the controversy before us remains live. Under state law, if “the United States Supreme Court … reverses” the decision in Harper I, the 2021 maps will again become “effective.” 2022 N. C. Sess. Laws p. 10, §2. We have previously found such trigger provisions—in North Carolina, no less—sufficient to avoid mootness under Article III. See Hunt v. Cromartie, 526 U. S. 541, 546, n. 1 (1999) (“Because the State’s 1998 law provides that the State will revert to the 1997 districting plan upon a favorable decision of this Court … this case is not moot.”).
We also have jurisdiction to review the judgment in Harper I under 28 U. S. C. §1257(a). That statute provides for this Court’s exercise of jurisdiction over “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had.” Ibid. We have, however, “recurringly encountered situations in which the highest court of a State has finally determined the federal issue present in a particular case, but in which there are further proceedings in the lower state courts to come.” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 477 (1975).
Cox Broadcasting delineated “at least four categories of such cases in which the Court has treated the decision on the federal issue as a final judgment for the purposes of 28 U. S. C. §1257,” despite “additional proceedings anticipated in the lower state courts.” Ibid. As relevant, the second category includes those “cases … in which the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of ​future state-court proceedings.” Id., at 480.
Harper I fits within this second category of cases described in Cox Broadcasting. By striking down the 2021 congressional plans enacted by the General Assembly, Harper I “finally decided” the “federal issue” whether the Elections Clause insulates state legislatures from review by state courts for compliance with state law. See 380 N. C., at 390–391, 868 S. E. 2d, at 551–552. That issue both has survived and requires decision because subsequent proceedings have neither altered Harper I’s analysis of the federal issue nor negated the effect of its judgment striking down the 2021 plans. In its decision “overruling” Harper I, the North Carolina Supreme Court in fact reaffirmed that it retains the authority to review congressional districting plans for compliance with state law. Harper, ___ N. C., at ___, 886 S. E. 2d, at 422.
That the North Carolina Supreme Court overruled Harper I does not affect the judgment in that case for purposes of §1257(a). “[T]he res judicata consequences of a final, unappealed judgment on the merits” are not “altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.” Federated Department Stores, Inc. v. Moitie, 452 U. S. 394, 398 (1981). The North Carolina Supreme Court has said much the same. East Carolina Lumber Co. v. West, 247 N. C. 699, 701, 102 S. E. 2d, 248, 249 (1958) (“An erroneous or irregular judgment binds the parties thereto until corrected in a proper manner.”). That Court did not purport to alter or amend in any way the judgment in Harper I. In short, the record before us shows that Harper I “finally decided” the Elections Clause issue, which has survived subsequent proceedings in the North Carolina Supreme Court such that it continues to “require decision” by this Court. Cox Broadcasting, 420 U. S., at 480.
Justice Thomas sees it differently. He correctly ​observes that the North Carolina Supreme Court has now dismissed the plaintiffs’ claims with prejudice. He posits, therefore, that the legislative defendants “are not injured by the judgment of Harper I.” Post, at 5 (dissenting opinion). But the record before us belies that notion. Harper I enjoined the use of the 2021 maps in subsequent elections in North Carolina. Well after the time for seeking rehearing as to that judgment passed, the legislative defendants instead sought rehearing with respect to Harper II, a distinct decision concerning remedies. The defendants steadfastly maintained in rehearing proceedings before the North Carolina Supreme Court that “overruling Harper I [would] not negate the force of its order striking down the 2021 plans.” Pet. for Rehearing 24; see also Legislative Defendants’ Supp. Brief on Rehearing in Harper v. Hall, No. 413PA21–2, p. 56 (N. C., Feb. 17, 2023) (“[T]he Court’s dictate that the 2021 plans may not be used ‘in any future elections’ would not be vacated.”). With those concessions on the record, the North Carolina Supreme Court issued its decision “overruling” Harper I, and—by contrast—“withdraw[ing]” its decision in Harper II. Harper, ___ N. C., at ___, 886 S. E. 2d, at 449. And mirroring their representations before the North Carolina Supreme Court, the legislative defendants now maintain in this Court that they continue to remain bound by the judgment in Harper I.
In an effort to cast doubt on these consistent representations by the injured party before us, Justice Thomas contends that the legislative defendants have already received complete relief because nothing now prevents the implementation of the 2021 maps. Post, at 15 (dissenting opinion). For the reasons stated above, that would come as a surprise to both the legislative defendants and the North Carolina Supreme Court. The dissent also emphasizes that several of the plaintiffs contest our jurisdiction. Post, at 6. But that has been their position from the very beginning, ​and it did not prevent our granting certiorari. The concessions offered by the legislative defendants as part of the rehearing proceedings, the recent opinion issued by the North Carolina Supreme Court, and the legislative defendants’ briefing in this Court all tell the same story: Harper I continues to enjoin the use of the 2021 maps. Following the dissent’s logic and dismissing this case as moot would foreclose the one path to full relief available to the legislative defendants: A decision by this Court reversing the judgment in Harper I.
This Court has before it a judgment issued by a State’s highest court that adjudicates a federal constitutional issue. The defendants did not ask the North Carolina Supreme Court to vacate that judgment, that court did not purport to do so, and the defendants now concede that they remain bound by it. Cox Broadcasting considered our exercise of jurisdiction where the “federal issue … will survive and require decision regardless of the outcome of future state-court proceedings.” 420 U. S., at 480. Unlike cases in which we must anticipate what the future might hold, we now know the resolution of the anticipated state court proceedings. The record shows that Harper I finally decided the Elections Clause question, the judgment in that case continues to bind the parties before us, and the 2021 congressional maps would again take effect in North Carolina were we to reverse. Accordingly, we have jurisdiction under both Article III and §1257(a).
III
The question on the merits is whether the Elections Clause insulates state legislatures from review by state courts for compliance with state law.
Since early in our Nation’s history, courts have recognized their duty to evaluate the constitutionality of legislative acts. We announced our responsibility to review laws ​that are alleged to violate the Federal Constitution in Marbury v. Madison, proclaiming that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” 1 Cranch 137, 177 (1803). Marbury confronted and rejected the argument that Congress may exceed constitutional limits on the exercise of its authority. “Certainly all those who have framed written constitutions,” we reasoned, “contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.” Ibid.
Marbury proclaimed our authority to invalidate laws that violate the Federal Constitution, but it did not fashion this concept out of whole cloth. Before the Constitutional Convention convened in the summer of 1787, a number of state courts had already moved “in isolated but important cases to impose restraints on what the legislatures were enacting as law.” G. Wood, The Creation of the American Republic 1776–1787, pp. 454–455 (1969). Although judicial review emerged cautiously, it matured throughout the founding era. These state court decisions provided a model for James Madison, Alexander Hamilton, and others who would later defend the principle of judicial review.
In the 1786 case Trevett v. Weeden, for example, lawyer James Varnum challenged a Rhode Island statute on the ground that it failed to provide the right to a jury trial. Although Rhode Island lacked a written constitution, Varnum argued that the State nevertheless had a constitution reflecting the basic historical rights of the English. And, he contended, the courts must honor “the principles of the constitution in preference to any acts of the General Assembly.” J. Varnum, The Case, Trevett v. Weeden, reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History 424 (1971). Varnum won, to the dismay of the State’s legislature, which replaced four of the five judges involved. W. Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev. ​455, 478 (2005). His arguments were published as a pamphlet, which “may well have been the most prominent discussion of judicial review at the time of the Philadelphia Constitutional Convention.” Id., at 477.
The North Carolina Supreme Court played its own part in establishing judicial review. In Bayard v. Singleton, the court considered the constitutionality of a 1785 Act by the State’s General Assembly that prevented British loyalists from challenging property seizures before a jury. 1 Mort. 48 (1787). The court held the Act “abrogated and without any effect,” for “it was clear” that the legislature could not pass an Act that “could by any means repeal or alter the constitution.” Id., at 50. Otherwise, the legislature “would at the same instant of time, destroy their own existence as a Legislature, and dissolve the government thereby established.” Ibid. James Iredell, who would later serve as an inaugural Justice of this Court, penned at the time an open letter “To the Public” expounding a robust concept of judicial review. 2 Life and Correspondence of James Iredell 145 (1846). “[T]he power of the Assembly,” he wrote, “is limited and defined by the constitution.” Id., at 146. The legislature, after all, “is a creature of the constitution.” Ibid.
North Carolina and Rhode Island did not stand alone. See, e.g., Holmes v. Walton (N. J. 1780), described in A. Scott, Holmes vs. Walton: The New Jersey Precedent, 4 Am. Hist. Rev. 456 (1899); State v. Parkhurst, 9 N. J. L. 427, 444 (1802) (citing Holmes as holding that a statute providing for a six-person jury was “unconstitutional”). All told, “[s]tate courts in at least seven states invalidated state or local laws under their State constitutions before 1787,” which “laid the foundation for judicial review.” J. Sutton, 51 Imperfect Solutions 13 (2018).
The Framers recognized state decisions exercising judicial review at the Constitutional Convention of 1787. On July 17, James Madison spoke in favor of a federal council of revision that could negate laws passed by the States. He ​lauded the Rhode Island judges “who refused to execute an unconstitutional law,” lamenting that the State’s legislature then “displaced” them to substitute others “who would be willing instruments of the wicked & arbitrary plans of their masters.” 2 Records of the Federal Convention of 1787, p. 28 (M. Farrand ed. 1911). A week later, Madison extolled as one of the key virtues of a constitutional system that “[a] law violating a constitution established by the people themselves, would be considered by the Judges as null & void.” Id., at 93. Elbridge Gerry, a delegate from Massachusetts, also spoke in favor of judicial review. (Known for drawing a contorted legislative district that looked like a salamander, Gerry later became the namesake for the “gerrymander.”) At the Convention, he noted that “[i]n some States the Judges had [actually] set aside laws as being agst. the Constitution.” 1 id., at 97 (alteration in original by James Madison). Such judicial review, he noted, was met “with general approbation.” Ibid.
Writings in defense of the proposed Constitution echoed these comments. In the Federalist Papers, Alexander Hamilton maintained that “courts of justice” have the “duty … to declare all acts contrary to the manifest tenor of the Constitution void.” The Federalist No. 78, p. 466 (C. Rossiter ed. 1961). “[T]his doctrine” of judicial review, he also wrote, was “equally applicable to most if not all the State governments.” Id., No. 81, at 482.
State cases, debates at the Convention, and writings defending the Constitution all advanced the concept of judicial review. And in the years immediately following ratification, courts grew assured of their power to void laws incompatible with constitutional provisions. See Treanor, 58 Stan. L. Rev., at 473, 497–498. The idea that courts may review legislative action was so “long and well established” by the time we decided Marbury in 1803 that Chief Justice Marshall referred to judicial review as “one of the fundamental principles of our society.” 1 Cranch, at 176–177.
IV
We are asked to decide whether the Elections Clause carves out an exception to this basic principle. We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.
A
We first considered the interplay between state constitutional provisions and a state legislature’s exercise of authority under the Elections Clause in Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565 (1916). There, we examined the application to the Elections Clause of a provision of the Ohio Constitution permitting the State’s voters “to approve or disapprove by popular vote any law enacted by the General Assembly.” Id., at 566. In 1915, the Ohio General Assembly drew new congressional districts, which the State’s voters then rejected through such a popular referendum. Asked to disregard the referendum, the Ohio Supreme Court refused, explaining that the Elections Clause—while “conferring the power therein defined upon the various state legislatures”—did not preclude subjecting legislative Acts under the Clause to “a popular vote.” State ex rel. Davis v. Hildebrant, 94 Ohio St. 154, 163, 114 N. E. 55, 58 (1916).
We unanimously affirmed, rejecting as “plainly without substance” the contention that “to include the referendum within state legislative power for the purpose of apportionment is repugnant to §4 of Article I [the Elections Clause].” Hildebrant, 241 U. S., at 569; see also Hawke v. Smith, 253 U. S. 221, 230–231 (1920) (describing Hildebrant as holding that “the referendum provision of the state constitution when applied to a law redistricting the State with a view to representation in Congress was not unconstitutional”).
Smiley v. Holm, decided 16 years after Hildebrant, considered the effect of a Governor’s veto of a state redistricting ​plan. 285 U. S. 355, 361 (1932). Following the 15th decennial census in 1930, Minnesota lost one seat in its federal congressional delegation. The State’s legislature divided Minnesota’s then nine congressional districts in 1931 and sent its Act to the Governor for his approval. The Governor vetoed the plan pursuant to his authority under the State’s Constitution. But the Minnesota Secretary of State nevertheless began to implement the legislature’s map for upcoming elections. A citizen sued, contending that the legislature’s map “was a nullity in that, after the Governor’s veto, it was not repassed by the legislature as required by law.” Id., at 362. The Minnesota Supreme Court disagreed. In its view, “the authority so given by” the Elections Clause “is unrestricted, unlimited, and absolute.” State ex rel. Smiley v. Holm, 184 Minn. 228, 242, 238 N. W. 494, 501 (1931). The Elections Clause, it held, conferred upon the legislature “the exclusive right to redistrict” such that its actions were “beyond the reach of the judiciary.” Id., at 243, 238 N. W., at 501.
We unanimously reversed. A state legislature’s “exercise of … authority” under the Elections Clause, we held, “must be in accordance with the method which the State has prescribed for legislative enactments.” Smiley, 285 U. S., at 367. Nowhere in the Federal Constitution could we find “provision of an attempt to endow the legislature of the State with power to enact laws in any manner other than that in which the constitution of the State has provided that laws shall be enacted.” Id., at 368.
Smiley relied on founding-era provisions, constitutional structure, and historical practice, each of which we found persuasive. Two States at the time of the founding provided a veto power, restrictions that were “well known.” Ibid. (citing provisions in Massachusetts and New York). Subjecting state legislatures to such a limitation “was no more incongruous with the grant of legislative authority to regulate congressional elections than the fact that the Congress in ​making its regulations under the same provision would be subject to the veto power of the President.” Ibid.; see also Wesberry v. Sanders, 376 U. S. 1, 6 (1964) (Congress does not have “exclusive authority” under the Elections Clause, independent of other federal constitutional provisions). And “long and continuous interpretation” as evidenced by “the established practice in the states” provided further support. Smiley, 285 U. S., at 369. We noted that many state constitutions had adopted provisions allowing for executive vetoes, “and that the uniform practice … has been to provide for congressional districts by the enactment of statutes with the participation of the Governor wherever the state constitution provided for such participation.” Id., at 370.
This Court recently reinforced the teachings of Hildebrant and Smiley in a case considering the constitutionality of an Arizona ballot initiative. Voters “amended Arizona’s Constitution to remove redistricting authority from the Arizona Legislature and vest that authority in an independent commission.” Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. 787, 792 (2015). The Arizona Legislature challenged a congressional map adopted by the commission, arguing that the Elections “Clause precludes resort to an independent commission … to accomplish redistricting.” Ibid. A divided Court rejected that argument. The majority reasoned that dictionaries of “the founding era … capaciously define[d] the word ‘legislature,’ ” id., at 813–814, and concluded that the people of Arizona retained the authority to create “an alternative legislative process” by vesting the lawmaking power of redistricting in an independent commission, id., at 817. The Court ruled, in short, that although the Elections Clause expressly refers to the “Legislature,” it does not preclude a State from vesting congressional redistricting authority in a body other than the elected group of officials who ordinarily exercise lawmaking power. States, the Court explained, ​“retain autonomy to establish their own governmental processes.” Id., at 816.
The significant point for present purposes is that the Court in Arizona State Legislature recognized that whatever authority was responsible for redistricting, that entity remained subject to constraints set forth in the State Constitution. The Court embraced the core principle espoused in Hildebrant and Smiley “that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.” 576 U. S., at 808; see also id., at 840–841 (Roberts, C. J., dissenting) (recognizing that Hildebrant and Smiley support the imposition of “some constraints on the legislature”). The Court dismissed the argument that the Elections Clause divests state constitutions of the power to enforce checks against the exercise of legislative power: “Nothing in [the Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.” 576 U. S., at 817–818 (majority opinion).
The reasoning we unanimously embraced in Smiley commands our continued respect: A state legislature may not “create congressional districts independently of” requirements imposed “by the state constitution with respect to the enactment of laws.” 285 U. S., at 373.
B
The legislative defendants and the dissent both contend that, because the Federal Constitution gives state legislatures the power to regulate congressional elections, only that Constitution can restrain the exercise of that power. Brief for Petitioners 22; post, at 17 (opinion of Thomas, J.). The legislative defendants cite for support Federalist No. 78, which explains that the wielding of legislative ​power is constrained by “the tenor of the commission under which it is exercised.” The Federalist No. 78, at 466; see Tr. of Oral Arg. 4.
This argument simply ignores the precedent just described. Hildebrant, Smiley, and Arizona State Legislature each rejected the contention that the Elections Clause vests state legislatures with exclusive and independent authority when setting the rules governing federal elections.
The argument advanced by the defendants and the dissent also does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life. Legislatures, the Framers recognized, “are the mere creatures of the State Constitutions, and cannot be greater than their creators.” 2 Farrand 88. “What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void.” Vanhorne’s Lessee v. Dorrance, 2 Dall. 304, 308 (Pa. 1795). Marbury confirmed this understanding, 1 Cranch, at 176–177, and nothing in the text of the Elections Clause undermines it. When a state legislature carries out its constitutional power to prescribe rules regulating federal elections, the “commission under which” it exercises authority is twofold. The Federalist No. 78, at 467. The legislature acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the legislature’s exercise of power.
Turning to our precedents, the defendants quote from our analysis of the Electors Clause in McPherson v. Blacker, 146 U. S. 1 (1892). That Clause—similar to the Elections Clause—provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a [specified] ​Number of Electors.” Art. II, §1, cl. 2. McPherson considered a challenge to the Michigan Legislature’s decision to allocate the State’s electoral votes among the individual congressional districts, rather than to the State as a whole. We upheld that decision, explaining that in choosing Presidential electors, the Clause “leaves it to the legislature exclusively to define the method of effecting the object.” 146 U. S., at 27.
Our decision in McPherson, however, had nothing to do with any conflict between provisions of the Michigan Constitution and action by the State’s legislature—the issue we confront today. McPherson instead considered whether Michigan’s Legislature itself directly violated the Electors Clause (by taking from the “State” the power to appoint and vesting that power in separate districts), the Fourteenth Amendment (by allowing voters to vote for only one Elector rather than “Electors”), and a particular federal statute. Id., at 8–9 (argument for plaintiffs in error). Nor does the quote highlighted by petitioners tell the whole story. Chief Justice Fuller’s opinion for the Court explained that “[t]he legislative power is the supreme authority except as limited by the constitution of the State.” Id., at 25 (emphasis added); see also ibid. (“What is forbidden or required to be done by a State is forbidden or required of the legislative power under state constitutions as they exist.”).
The legislative defendants and Justice Thomas rely as well on our decision in Leser v. Garnett, 258 U. S. 130 (1922), but it too offers little support. See post, at 17, 20–21. Leser addressed an argument that the Nineteenth Amendment—providing women the right to vote—was invalid because state constitutional provisions “render[ed] inoperative the alleged ratifications by their legislatures.” 258 U. S., at 137. We rejected that position, holding that when state legislatures ratify amendments to the Constitution, they carry out “a federal function derived from the Federal Constitution,” which “transcends any limitations ​sought to be imposed by the people of a State.” Ibid.
But the legislature in Leser performed a ratifying function rather than engaging in traditional lawmaking. The provisions at issue in today’s case—like the provisions examined in Hildebrant and Smiley—concern a state legislature’s exercise of lawmaking power. And as we held in Smiley, when state legislatures act pursuant to their Elections Clause authority, they engage in lawmaking subject to the typical constraints on the exercise of such power. 285 U. S., at 367. We have already distinguished Leser on those grounds. Smiley, 285 U. S., at 365–366. In addition, Leser cited for support our decision in Hawke v. Smith, which sharply separated ratification “from legislative action” under the Elections Clause. 253 U. S., at 228. Lawmaking under the Elections Clause, Hawke explained, “is entirely different from the requirement of the Constitution as to the expression of assent or dissent to a proposed amendment to the Constitution.” Id., at 231.
Hawke and Smiley delineated the various roles that the Constitution assigns to state legislatures. Legislatures act as “Consent[ing]” bodies when the Nation purchases land, Art. I, §8, cl. 17; as “Ratif[ying]” bodies when they agree to proposed Constitutional amendments, Art. V; and—prior to the passage of the Seventeenth Amendment—as “electoral” bodies when they choose United States Senators, Smiley, 285 U. S., at 365; see also Art. I, §3, cl. 1; Amdt. 17 (providing for the direct election of Senators).
By fulfilling their constitutional duty to craft the rules governing federal elections, state legislatures do not consent, ratify, or elect—they make laws. Elections are complex affairs, demanding rules that dictate everything from the date on which voters will go to the polls to the dimensions and font of individual ballots. Legislatures must “provide a complete code for congressional elections,” including regulations “relati[ng] to notices, registration, supervision ​of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns.” Smiley, 285 U. S., at 366. In contrast, a simple up-or-down vote suffices to ratify an amendment to the Constitution. Providing consent to the purchase of land or electing Senators involves similarly straightforward exercises of authority. But fashioning regulations governing federal elections “unquestionably calls for the exercise of lawmaking authority.” Arizona State Legislature, 576 U. S., at 808, n. 17. And the exercise of such authority in the context of the Elections Clause is subject to the ordinary constraints on lawmaking in the state constitution.
In sum, our precedents have long rejected the view that legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution.
C
Addressing our decisions in Smiley and Hildebrant, both the legislative defendants and Justice Thomas concede that at least some state constitutional provisions can restrain a state legislature’s exercise of authority under the Elections Clause. But they read those cases to differentiate between procedural and substantive constraints. Brief for Petitioners 24; post, at 21–22 (opinion of Thomas, J.). Smiley, in their view, stands for the proposition that state constitutions may impose only procedural hoops through which legislatures must jump in crafting rules governing federal elections. This concededly “formalistic” approach views the Governor’s veto at issue in Smiley as one such procedural restraint. Tr. of Oral Arg. 62. But when it comes to substantive provisions, their argument goes, our precedents have nothing to say.
This argument adopts too cramped a view of our decision in Smiley. Chief Justice Hughes’s opinion for the Court ​drew no distinction between “procedural” and “substantive” restraints on lawmaking. It turned on the view that state constitutional provisions apply to a legislature’s exercise of lawmaking authority under the Elections Clause, with no concern about how those provisions might be categorized. 285 U. S., at 367–368; see also Hildebrant, 241 U. S., at 569–570.
The same goes for the Court’s decision in Arizona State Legislature. The defendants attempt to cabin that case by arguing that the Court did not address substantive limits on the regulation of federal elections. But as in Smiley, the Court’s decision in Arizona State Legislature discussed no difference between procedure and substance.
The dissent reads Smiley and Arizona State Legislature in a different light. Justice Thomas thinks those cases say nothing about whether a State can impose “substantive limits” on the legislature’s exercise of power under the Elections Clause. Post, at 21. But in Smiley, we addressed whether “the conditions which attach to the making of state laws” apply to legislatures exercising authority under the Elections Clause. 285 U. S., at 365. We held that they do. “Much that is urged in argument with regard to the meaning of the term ‘Legislature,’ ” we explained, “is beside the point.” Ibid. And we concluded in straightforward terms that legislatures must abide by “restriction[s] imposed by state constitutions … when exercising the lawmaking power” under the Elections Clause. Id., at 369. Arizona State Legislature said much the same, emphasizing that, by its text, nothing in the Elections Clause offers state legislatures carte blanche to act “in defiance of provisions of the State’s constitution.” 576 U. S., at 818.
The defendants and Justice Thomas do not in any event offer a defensible line between procedure and substance in this context. “The line between procedural and substantive law is hazy.” Erie R. Co. v. Tompkins, 304 U. S. 64, 92 (1938) Reed, J., concurring in part); see also Shady Grove ​Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U. S. 393, 419–420 (2010) (Stevens, J., concurring in part and concurring in judgment). Many rules “are rationally capable of classification as either.” Hanna v. Plumer, 380 U. S. 460, 472 (1965); see also Sun Oil Co. v. Wortman, 486 U. S. 717, 726 (1988) (“Except at the extremes, the terms ‘substance’ and ‘procedure’ precisely describe very little except a dichotomy.”). Procedure, after all, is often used as a vehicle to achieve substantive ends. When a governor vetoes a bill because of a disagreement with its policy consequences, has the governor exercised a procedural or substantive restraint on lawmaking? Smiley did not endorse such murky inquiries into the nature of constitutional restraints, and we see no neat distinction today.
D
Were there any doubt, historical practice confirms that state legislatures remain bound by state constitutional restraints when exercising authority under the Elections Clause. We have long looked to “settled and established practice” to interpret the Constitution. The Pocket Veto Case, 279 U. S. 655, 689 (1929). And we have found historical practice particularly pertinent when it comes to the Elections and Electors Clauses. Smiley, 285 U. S., at 369 (Elections Clause); Chiafalo v. Washington, 591 U. S. ___, ___–___ (2020) (slip op., at 12–14) (Electors Clause).
Two state constitutional provisions adopted shortly after the founding offer the strongest evidence. Delaware’s 1792 Constitution provided that the State’s congressional representatives “shall be voted for at the same places where representatives in the State legislature are voted for, and in the same manner.” Art. VIII, §2. Even though the Elections Clause stated that the “Places” and “Manner” of federal elections shall be “prescribed” by the state legislatures, the Delaware Constitution expressly enacted rules ​governing the “places” and “manner” of holding elections for federal office. An 1810 amendment to the Maryland Constitution likewise embodied regulations falling within the scope of the Elections and Electors Clauses. Article XIV provided that every qualified citizen “shall vote, by ballot, … for electors of the President and Vice-President of the United States, [and] for Representatives of this State in the Congress of the United States.” If the Elections Clause had vested exclusive authority in state legislatures, unchecked by state courts enforcing provisions of state constitutions, these clauses would have been unenforceable from the start.
Besides the two specific provisions in Maryland and Delaware, multiple state constitutions at the time of the founding regulated federal elections by requiring that “[a]ll elections shall be by ballot.” Ga. Const., Art. IV, §2 (1789); see also, e.g., Pa. Const., Art. III, §2 (1790); Ky. Const., Art. III, cl. 2 (1792); Tenn. Const., Art. III, §3 (1796); Ohio Const., Art. IV, §2 (1803); La. Const., Art. VI, §13 (1812). These provisions directed the “manner” of federal elections within the meaning of the Elections Clause, as Madison himself explained at the Constitutional Convention. See 2 Farrand 240 (“Whether the electors should vote by ballot or vivâ voce” falls within the “great latitude” of “regulating the times places & manner of holding elections”).
The legislative defendants discount this evidence. They argue that those “by ballot” provisions spoke only “to the offices that were created by” state constitutions, and not to the federal offices to which the Elections Clause applies. Tr. of Oral Arg. 18. We find no textual hook for that strained reading. “All” meant then what it means now.
In addition, the Framers did not write the Elections Clause on a blank slate—they instead borrowed from the Articles of Confederation, which provided that “delegates shall be annually appointed in such manner as the legislature of each state shall direct.” Art. V. The two provisions ​closely parallel. And around the time the Articles were adopted by the Second Continental Congress, multiple States regulated the “manner” of “appoint[ing] delegates,” ibid., suggesting that the Framers did not understand that language to insulate state legislative action from state constitutional provisions. See Del. Const., Art. XI (1776); Md. Const., Art. XXVII (1776); Va. Const., cls. 3–4 (1776); Pa. Const., §11 (1776); N. C. Const., Art. XXXVII (1776); Ga. Const., Art. XVI (1777); N. Y. Const., Art. XXX (1777); S. C. Const., Art. XXII (1778); Mass. Const., pt. 2, ch. IV (1780); N. H. Const., pt. II (1784).
The defendants stress an 1820 convention held in Massachusetts to amend the Commonwealth’s Constitution. After a Boston delegate proposed a provision regulating the manner of federal elections, Joseph Story—then a Justice of this Court—nixed the effort. In Story’s view, such a provision would run afoul of the Elections Clause by “assum[ing] a control over the Legislature, which the constitution of the United States does not justify.” Journal of the Debates and Proceedings in the Convention of Delegates 110 (1853). But Story’s comment elicited little discussion, and reflects the views of a jurist who, although “a brilliant and accomplished man, … was not a member of the Founding generation.” U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 856 (1995) (Thomas, J., dissenting).
V A
Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein. “State courts are the appropriate tribunals … for the decision of questions arising under their local law, whether statutory or otherwise.” Murdock v. Memphis, 20 Wall. 590, 626 (1875). At the same time, the Elections Clause expressly vests power to carry out its provisions in “the Legislature” ​of each State, a deliberate choice that this Court must respect. As in other areas where the exercise of federal authority or the vindication of federal rights implicates questions of state law, we have an obligation to ensure that state court interpretations of that law do not evade federal law.
State law, for example, “is one important source” for defining property rights. Tyler v. Hennepin County, 598 U. S. ___, ___ (2023) (slip op., at 5); see also Board of Regents of State Colleges v. Roth, 408 U. S. 564, 577 (1972) (property rights “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law”). At the same time, the Federal Constitution provides that “private property” shall not “be taken for public use, without just compensation.” Amdt. 5. As a result, States “may not sidestep the Takings Clause by disavowing traditional property interests.” Phillips v. Washington Legal Foundation, 524 U. S. 156, 164 (1998); see also Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 164 (1980) (holding that States may not, “by ipse dixit, … transform private property into public property without compensation”).
A similar principle applies with respect to the Contracts Clause, which provides that “[n]o state shall … pass any … Law impairing the Obligation of Contracts.” Art. I, §10, cl. 1. In that context “we accord respectful consideration and great weight to the views of the State’s highest court.” Indiana ex rel. Anderson v. Brand, 303 U. S. 95, 100 (1938). Still, “in order that the constitutional mandate may not become a dead letter, we are bound to decide for ourselves whether a contract was made.” Ibid.; see also General Motors Corp. v. Romein, 503 U. S. 181, 187 (1992).
Cases raising the question whether adequate and independent grounds exist to support a state court judgment involve a similar inquiry. We have in those cases considered whether a state court opinion below adopted novel reasoning to stifle the “vindication in state courts of … federal ​constitutional rights.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 457–458 (1958).
Running through each of these examples is the concern that state courts might read state law in such a manner as to circumvent federal constitutional provisions. Therefore, although mindful of the general rule of accepting state court interpretations of state law, we have tempered such deference when required by our duty to safeguard limits imposed by the Federal Constitution.
Members of this Court last discussed the outer bounds of state court review in the present context in Bush v. Gore, 531 U. S. 98 (2000) (per curiam). Our decision in that case turned on an application of the Equal Protection Clause of the Fourteenth Amendment. Id., at 104–105. In separate writings, several Justices addressed whether Florida’s Supreme Court, in construing provisions of Florida statutory law, exceeded the bounds of ordinary judicial review to an extent that its interpretation violated the Electors Clause.
Chief Justice Rehnquist, joined in a concurring opinion by Justice Thomas and Justice Scalia, acknowledged the usual deference we afford state court interpretations of state law, but noted “areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law.” Id., at 114. He declined to give effect to interpretations of Florida election laws by the Florida Supreme Court that “impermissibly distorted them beyond what a fair reading required.” Id., at 115. Justice Souter, for his part, considered whether a state court interpretation “transcends the limits of reasonable statutory interpretation to the point of supplanting the statute enacted by the ‘legislature’ within the meaning of Article II.” Id., at 133 (Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting).
We do not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause. The questions presented in ​this area are complex and context specific. We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.
B
We decline to address whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause. The legislative defendants did not meaningfully present the issue in their petition for certiorari or in their briefing, nor did they press the matter at oral argument. See Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U. S. 192, 206–208 (1997); see also California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 10). Counsel for the defendants expressly disclaimed the argument that this Court should reassess the North Carolina Supreme Court’s reading of state law. Tr. of Oral Arg. 7 (“We’re not asking this Court to second-guess or reassess. We say take the North Carolina Supreme Court’s decision on face value and as fairly reflecting North Carolina law….”). When pressed whether North Carolina’s Supreme Court did not fairly interpret its State Constitution, counsel reiterated that such an argument was “not our position in this Court.” Id., at 54. Although counsel attempted to expand the scope of the argument in rebuttal, such belated efforts do not overcome prior failures to preserve the issue for review. See this Court’s Rule 28 (“[C]ounsel making the opening argument shall present the case fairly and completely and not reserve points of substance for rebuttal.”). *** State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause. But federal ​courts must not abandon their own duty to exercise judicial review. In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution. Because we need not decide whether that occurred in today’s case, the judgment of the North Carolina Supreme Court is affirmed.
It is so ordered.
* ↑ The plaintiffs also asserted that North Carolina’s Legislature discriminated on the basis of race and raised other claims under the North Carolina Constitution. Harper I, 380 N. C., at 350–352, 868 S. E. 2d, at 526–527. Those claims are not at issue today.
* ↑ As noted, supra, at 5–6, the North Carolina Supreme Court withdrew the opinion in Harper II, which addressed both the remedial maps developed by the General Assembly and an order by the trial court implementing an interim plan for the 2022 elections. The remedial order, having been withdrawn, is not before us, and our decision today does not pass on the constitutionality of any particular map adopted by the state courts.