(Slip Opinion) OCTOBER TERM, 2022 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

MOORE, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE 

NORTH CAROLINA HOUSE OF REPRESENTATIVES, 

ET AL. v. HARPER ET AL. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA 

No. 21–1271. Argued December 7, 2022—Decided June 27, 2023 

The Elections Clause of the Federal Constitution requires “the Legislature” of each State to prescribe the rules governing federal elections. 

Art. I, §4, cl. 1. This case concerns the claim that the Clause vests 

state legislatures with authority to set rules governing federal elections free from restrictions imposed under state law. Following the

2020 decennial census, North Carolina’s General Assembly drafted a 

new federal congressional map, which several groups of plaintiffs challenged as an impermissible partisan gerrymander in violation of the 

North Carolina Constitution. The trial court found partisan gerrymandering claims nonjusticiable under the State Constitution, but the

North Carolina Supreme Court reversed. Harper v. Hall, 380 N. C. 

317, 868 S. E. 2d 499 (Harper I). While acknowledging that partisan 

gerrymandering claims are outside the reach of federal courts, see 

Rucho v. Common Cause, 588 U. S. ___, ___, the State Supreme Court

held that such questions were not beyond the reach of North Carolina 

courts. The court also rejected the argument that the Federal Elections Clause vests exclusive and independent authority in state legislatures to draw federal congressional maps. The court enjoined the 

use of the maps and remanded the case to the trial court for remedial 

proceedings. The legislative defendants then filed an emergency application in this Court, citing the Elections Clause and requesting a 

stay of the North Carolina Supreme Court’s decision. This Court declined to issue a stay, but later granted certiorari. 

After this Court granted certiorari, the North Carolina Supreme 

Court issued a decision addressing a remedial map adopted by the trial 

court. Harper v. Hall, 383 N. C. 89, 125, 881 S. E. 2d 156, 181 (Harper 

II). The North Carolina Supreme Court then granted the legislative 
 

 

2 MOORE v. HARPER 

Syllabus 

defendants’ request to rehear that remedial decision in Harper II. The 

court ultimately withdrew the opinion in Harper II concerning the remedial maps and overruled Harper I, repudiating its holding that partisan gerrymandering claims are justiciable under the North Carolina

Constitution. The court dismissed plaintiffs’ claims but did not reinstate the 2021 congressional plans struck down in Harper I under the 

State Constitution. This Court has entertained two rounds of supplemental briefing on jurisdictional questions in light of the state court’s 

rehearing proceedings. 

Held: 

1. This Court has jurisdiction to review the judgment of the North 

Carolina Supreme Court in Harper I that adjudicated the Federal 

Elections Clause issue. A corollary to this Court’s jurisdiction over 

“Cases” and “Controversies” is that there must exist a dispute “at all

stages of review, not merely at the time the complaint is filed.” Genesis 

HealthCare Corp. v. Symczyk, 569 U. S. 66, 71 (internal quotation 

marks omitted). The North Carolina Supreme Court’s decision to 

withdraw Harper II and overrule Harper I does not moot this case. 

Prior to the appeal and rehearing proceedings in Harper II, the court 

had already entered the judgment and issued the mandate in Harper 

I, and the legislative defendants acknowledged that they would remain 

bound by Harper I’s decision enjoining the use of the 2021 plans. When 

the North Carolina Supreme Court “overruled” Harper I as part of the 

rehearing proceedings, it repudiated Harper I’s conclusion that partisan gerrymandering claims are justiciable under the North Carolina 

Constitution. But the court did not purport to alter or amend the judgment in Harper I enjoining the use of the 2021 maps. Were this Court 

to reverse Harper I, the 2021 plans would again take effect. Because 

the legislative defendants’ path to complete relief runs through this 

Court, the parties continue to have a “personal stake in the ultimate 

disposition of the lawsuit” sufficient to maintain this Court’s jurisdiction. Chafin v. Chafin, 568 U. S. 165, 172 (internal quotation marks 

omitted).

This Court also has jurisdiction to review the judgment in Harper I

under 28 U. S. C. §1257(a), which provides that jurisdiction in this

Court extends to “[f]inal judgments . . . rendered by the highest court 

of a State in which a decision could be had.” Cox Broadcasting Corp. 

v. Cohn, 420 U. S. 469, identified categories of cases in which a decision of a State’s highest court was considered a final judgment for 

§1257(a) purposes despite the anticipation of additional lower court 

proceedings, including “cases . . . in which the federal issue, finally 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 is such a case. Because subsequent proceedings have 
 

 

 

 

Cite as: 600 U. S. ____ (2023) 3 

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neither altered Harper I’s analysis of the federal issue nor negated the 

effect of the Harper I judgment striking down the 2021 plans, that issue both has survived and requires decision by this Court. Pp. 6–11.

2. The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections. 

Marbury v. Madison, 1 Cranch 137, famously proclaimed this

Court’s authority to invalidate laws that violate the Federal Constitution. But Marbury did not invent the concept of judicial review. State 

courts had already begun to impose restraints on state legislatures, 

even before the Constitutional Convention, and the practice continued 

to mature during the founding era. James Madison extolled judicial 

review as one of the key virtues of a constitutional system, and the 

concept of judicial review was so entrenched by the time the Court decided Marbury that Chief Justice Marshall referred to it as one of society’s “fundamental principles.” Id., at 177.. 

The Elections Clause does not carve out an exception to that fundamental principle. When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise

of state judicial review. Pp. 11–26.

(a) In Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, this Court 

examined the Elections Clause’s application to a provision of the Ohio

Constitution permitting the State’s voters to reject, by popular vote, 

any law enacted by the State’s General Assembly. This Court upheld 

the Ohio Supreme Court’s determination that the Federal Elections 

Clause did not preclude subjecting legislative acts under the Clause to

a popular referendum, rejecting the contention that “to include the referendum within state legislative power for the purpose of apportionment is repugnant to §4 of Article I [the Elections Clause].” Id., at 569. 

And in Smiley v. Holm, 285 U. S. 355, this Court considered the effect 

of a Governor’s veto, pursuant to his authority under the State’s Constitution, of a congressional redistricting plan. This Court held that 

the Governor’s veto did not violate the Elections Clause, reasoning 

that a state legislature’s “exercise of . . . authority” under the Elections 

Clause “must be in accordance with the method which the State has 

prescribed for legislative enactments.” Id., at 367. The Court highlighted that the Federal Constitution contained no “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. 

This Court recently reinforced the teachings of Hildebrant and Smiley in Arizona State Legislature v. Arizona Independent Redistricting 

Comm’n, 576 U. S. 787, a case concerning the constitutionality of an

Arizona ballot initiative to amend the State Constitution and to vest 

redistricting authority in an independent commission. Significantly 
 

 

 

 

 

 

4 MOORE v. HARPER 

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for present purposes, the Court embraced the core principle espoused

in Hildebrant and Smiley: Whatever authority was responsible for redistricting, that entity remained subject to constraints set forth in the 

State Constitution. The Court dismissed the argument that the Elections Clause divests state constitutions of the power to enforce checks

against the exercise of legislative power.

The basic principle of these cases—reflected in Smiley’s unanimous 

command that a state legislature may not “create congressional districts independently of” requirements imposed “by the state constitution with respect to the enactment of laws,” 285 U. S., at 373—commands continued respect. Pp. 15–18. 

(b) The precedents of this Court have long rejected the view that 

legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution. 

The argument to the contrary 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. Thus, when a 

state legislature carries out its federal constitutional power to prescribe rules regulating federal elections, it 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 state legislature’s exercise of power. 

This Court’s decision in McPherson v. Blacker, 146 U. S. 1, in which 

the Court analyzed the Constitution’s similarly worded Electors 

Clause, is inapposite. That decision did not address any conflict between state constitutional provisions and state legislatures. Nor does 

Leser v. Garnett, 258 U. S. 130, which involved a contested vote by a 

state legislature to ratify a federal constitutional amendment, help petitioners. That case concerned the power of state legislatures to ratify

amendments to the Federal Constitution. But fashioning regulations 

governing federal elections “unquestionably calls for the exercise of

lawmaking authority.” Arizona State Legislature, 576 U. S., at 808, n. 

17. And the exercise of such authority in the context of the Elections 

Clause is subject to the ordinary constraints on lawmaking in the state 

constitution. Pp. 18–22. 

(c) Petitioners concede that at least some state constitutional provisions can restrain a state legislature’s exercise of authority under 

the Elections Clause, but they read Smiley and Hildebrant to differentiate between procedural and substantive constraints. But neither 

case drew such a distinction, and petitioners do not in any event offer

a defensible line between procedure and substance in this context. Pp.

22–24. 

(d) Historical practice confirms that state legislatures remain 
Cite as: 600 U. S. ____ (2023) 5 

Syllabus 

bound by state constitutional restraints when exercising authority under the Elections Clause. Two state constitutional provisions adopted 

shortly after the founding expressly constrained state legislative action under the Elections Clause. See Del. Const., Art. VIII, §2 (1792); 

Md. Const., Art. XIV (1810). In addition, multiple state constitutions 

at the time of the founding regulated the “manner” of federal elections 

by requiring that “elections shall be by ballot.” See, e.g., Ga. Const., 

Art. IV, §2. Moreover, the Articles of Confederation—from which the 

Framers borrowed—provided that “delegates shall be annually appointed in such manner as the legislature of each state shall direct.” 

Art. V. Around the time the Articles were adopted, multiple States 

regulated the appointment of delegates, suggesting that the Framers 

did not understand that language to insulate state legislative action 

from state constitutional provisions. See, e.g., Del. Const., Art. XI 

(1776). Pp. 24–26. 

 3. Although the Elections Clause does not exempt state legislatures 

from the ordinary constraints imposed by state law, federal courts 

must not abandon their duty to exercise judicial review. This Court 

has an obligation to ensure that state court interpretations of state law 

do not evade federal law. For example, States “may not sidestep the 

Takings Clause by disavowing traditional property interests.” Phillips 

v. Washington Legal Foundation, 524 U. S. 156, 167. While the Court 

does not adopt a test by which state court interpretations of state law 

can be measured in cases implicating the Elections Clause, state 

courts may not transgress the ordinary bounds of judicial review such 

that they arrogate to themselves the power vested in state legislatures 

to regulate federal elections. 

 The Court need not decide whether the North Carolina Supreme 

Court strayed beyond the limits derived from the Elections Clause, as 

petitioners did not meaningfully present the issue in this Court. Pp. 

26–29. 

380 N. C. 317, 868 S. E. 2d 499, affirmed. 

 ROBERTS, C. J., delivered the opinion of the Court, in which SOTOMAYOR, KAGAN, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. 

KAVANAUGH, J., filed a concurring opinion. THOMAS, J., filed a dissenting 

opinion in which GORSUCH, J., joined, and in which ALITO, J., joined as to 

Part I. 
 

_________________ 

_________________ 

Cite as: 600 U. S. ____ (2023) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

United States Reports. Readers are requested to notify the Reporter of 

Decisions, Supreme Court of the United States, Washington, D. C. 20543, 

pio@supremecourt.gov, of any typographical or other formal errors. 

SUPREME COURT OF THE UNITED STATES 

No. 21–1271 

TIMOTHY K. MOORE, IN HIS OFFICIAL CAPACITY AS 

SPEAKER OF THE NORTH CAROLINA HOUSE 

OF REPRESENTATIVES, ET AL., PETITIONERS 

v. REBECCA HARPER, ET AL. 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 

NORTH CAROLINA 

[June 27, 2023] 

CHIEF JUSTICE ROBERTS delivered the opinion of the 

Court. 

Several groups of plaintiffs challenged North Carolina’s

congressional districting map as an impermissible partisan

gerrymander. The plaintiffs brought claims under North 

Carolina’s Constitution, which provides that “[a]ll elections 

shall be free.” Art. I, §10. Relying on that provision, as well 

as the State Constitution’s equal protection, free speech,

and free assembly clauses, the North Carolina Supreme 

Court found in favor of the plaintiffs and struck down the 

legislature’s map. The Court concluded that North 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 leg-
 

2 MOORE v. HARPER 

Opinion of the Court 

islatures 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). 
Cite as: 600 U. S. ____ (2023) 3 

Opinion of the Court 

Shortly after the new maps became law, several groups

of plaintiffs—including the North Carolina League of 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 513–514.1 At trial before 

a three-judge panel of the Wake County Superior Court, the

plaintiffs presented expert testimony and other evidence to 

support their claims that North Carolina’s General 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); 

—————— 1The 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. 
 

 

4 MOORE v. HARPER 

Opinion of the Court 

see Harper I, 380 N. C., at 360–361, 868 S. E. 2d, at 532– 

533. But “simply because the Supreme Court has concluded 

partisan gerrymandering claims are nonjusticiable in 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). 
Cite as: 600 U. S. ____ (2023) 5 

Opinion of the Court 

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 Con-
 

 

6 MOORE v. HARPER 

Opinion of the Court 

stitution. ___ 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 
 

Cite as: 600 U. S. ____ (2023) 7 

Opinion of the Court 

case. The plaintiffs here sought to enjoin the use of the 

2021 plans enacted by the legislative defendants. Harper I

granted that relief, and in doing so rejected the Elections 

Clause defense at issue before us. 380 N. C., at 403, 868 

S. E. 2d, at 559. Prior to both the appeal and rehearing 

proceedings in Harper II, the North Carolina Supreme 

Court had already entered the judgment and issued the

mandate in Harper I. See App. to Pet. for Cert. 306–309.

And the time during which the defendants could seek 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. 
 

 

 

8 MOORE v. HARPER 

Opinion of the Court 

Were we to reverse the judgment in Harper I—a step not

taken by the North Carolina Supreme Court—the 2021 

plans enacted by the legislative defendants would again

take effect. The parties accordingly continue to have a “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 
 

Cite as: 600 U. S. ____ (2023) 9 

Opinion of the Court 

future state-court proceedings.” Id., at 480. 

Harper I fits within this second category of cases 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 ob-
 

10 MOORE v. HARPER 

Opinion of the Court 

serves 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, 
 

Cite as: 600 U. S. ____ (2023) 11 

Opinion of the Court 

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 
 

 

12 MOORE v. HARPER 

Opinion of the Court 

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. 
 

 

Cite as: 600 U. S. ____ (2023) 13 

Opinion of the Court 

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 
 

14 MOORE v. HARPER 

Opinion of the Court 

lauded the Rhode Island judges “who refused to execute an 

unconstitutional law,” lamenting that the State’s 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. 
Cite as: 600 U. S. ____ (2023) 15 

Opinion of the Court 

IV 

We are asked to decide whether the Elections Clause 

carves out an exception to this basic principle. We hold that 

it does not. The Elections Clause does not insulate state 

legislatures from the ordinary exercise of state judicial 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 
 

 

 

16 MOORE v. HARPER 

Opinion of the Court 

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 
 

Cite as: 600 U. S. ____ (2023) 17 

Opinion of the Court 

making its regulations under the same provision would be 

subject to the veto power of the President.” Ibid.; see also 

Wesberry v. Sanders, 376 U. S. 1, 6 (1964) (Congress does 

not have “exclusive authority” under the Elections Clause, 

independent of other federal constitutional provisions). 

And “long and continuous interpretation” as evidenced by 

“the established practice in the states” provided further 

support. Smiley, 285 U. S., at 369. We noted that many

state constitutions had adopted provisions allowing for 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, 
 

 

 

18 MOORE v. HARPER 

Opinion of the Court 

“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 
 

Cite as: 600 U. S. ____ (2023) 19 

Opinion of the Court 

power is constrained by “the tenor of the commission under

which it is exercised.” The Federalist No. 78, at 466; see Tr. 

of Oral Arg. 4. 

This argument simply ignores the precedent just 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] 
 

 

 

 

20 MOORE v. HARPER 

Opinion of the Court 

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 
Cite as: 600 U. S. ____ (2023) 21 

Opinion of the Court 

sought to be imposed by the people of a State.” Ibid. 

But the legislature in Leser performed a ratifying 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 
 

22 MOORE v. HARPER 

Opinion of the Court 

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 upor-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 
 

 

Cite as: 600 U. S. ____ (2023) 23 

Opinion of the Court 

drew no distinction between “procedural” and “substantive”

restraints on lawmaking. It turned on the view that state 

constitutional provisions apply to a legislature’s exercise of 

lawmaking authority under the Elections Clause, with no

concern about how those provisions might be categorized.

285 U. S., at 367–368; see also Hildebrant, 241 U. S., 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 
 

 

24 MOORE v. HARPER 

Opinion of the Court 

Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U. S. 

393, 419–420 (2010) (Stevens, J., concurring in part and 

concurring in judgment). Many rules “are rationally 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 govern-
 

Cite as: 600 U. S. ____ (2023) 25 

Opinion of the Court 

ing 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 
 

26 MOORE v. HARPER 

Opinion of the Court 

closely parallel. And around the time the Articles were 

adopted by the Second Continental Congress, multiple 

States regulated the “manner” of “appoint[ing] delegates,” 

ibid., suggesting that the Framers did not understand that

language to insulate state legislative action from state 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” 
Cite as: 600 U. S. ____ (2023) 27 

Opinion of the Court 

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 
 

 

28 MOORE v. HARPER 

Opinion of the Court 

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 
Cite as: 600 U. S. ____ (2023) 29 

Opinion of the Court 

this area are complex and context specific. We hold only 

that state courts may not transgress the ordinary bounds of 

judicial review such that they arrogate to themselves the

power vested in state legislatures to regulate federal 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 
 

30 MOORE v. HARPER 

Opinion of the Court 

courts must not abandon their own duty to exercise judicial 

review. In interpreting state law in this area, state courts

may not so exceed the bounds of ordinary judicial review as

to unconstitutionally intrude upon the role specifically 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.2 

It is so ordered. 

—————— 2As 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. 
 

_________________ 

_________________ 

Cite as: 600 U. S. ____ (2023) 1 

KAVANAUGH, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 21–1271 

TIMOTHY K. MOORE, IN HIS OFFICIAL CAPACITY AS 

SPEAKER OF THE NORTH CAROLINA HOUSE 

OF REPRESENTATIVES, ET AL., PETITIONERS 

v. REBECCA HARPER, ET AL. 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 

NORTH CAROLINA 

[June 27, 2023] 

JUSTICE KAVANAUGH, concurring. 

I join the Court’s opinion in full. The Court today 

correctly concludes that state laws governing federal 

elections are subject to ordinary state court review,

including for compliance with the relevant state 

constitution. Ante, at 15, 26, 29. But because the Elections 

Clause assigns authority respecting federal elections to 

state legislatures, the Court also correctly concludes that

“state courts do not have free rein” in conducting that 

review. Ante, at 26. Therefore, a state court’s 

interpretation of state law in a case implicating the 

Elections Clause is subject to federal court review. Ante, at 

26–30; see also Bush v. Palm Beach County Canvassing 

Bd., 531 U. S. 70, 76–78 (2000) (unanimously concluding

that a state court’s interpretation of state law in a federal 

election case presents a federal issue); cf. Democratic 

National Committee v. Wisconsin State Legislature, 592 

U. S. ___, ___, n. 1 (2020) (KAVANAUGH, J., concurring in

denial of application to vacate stay) (slip op., at 9, n. 1).

Federal court review of a state court’s interpretation of 

state law in a federal election case “does not imply a

disrespect for state courts but rather a respect for the 

constitutionally prescribed role of state legislatures.” Bush 
 

 

2 MOORE v. HARPER 

KAVANAUGH, J., concurring 

v. Gore, 531 U. S. 98, 115 (2000) (Rehnquist, C. J.,

concurring).

The question, then, is what standard a federal court

should employ to review a state court’s interpretation of

state law in a case implicating the Elections Clause—

whether Chief Justice Rehnquist’s standard from Bush v. 

Gore; Justice Souter’s standard from Bush v. Gore; the 

Solicitor General’s proposal in this case; or some other 

standard. 

Chief Justice Rehnquist’s standard is straightforward:

whether the state court “impermissibly distorted” state law 

“beyond what a fair reading required.” Ibid. As I 

understand it, Justice Souter’s standard, at least the 

critical language, is similar: whether the state court 

exceeded “the limits of reasonable” interpretation of state 

law. Id., at 133 (dissenting opinion). And the Solicitor 

General here has proposed another similar approach:

whether the state court reached a “truly aberrant” 

interpretation of state law. Brief for United States as 

Amicus Curiae 27. 

As I see it, all three standards convey essentially the

same point: Federal court review of a state court’s 

interpretation of state law in a federal election case should 

be deferential, but deference is not abdication.1 I would 

adopt Chief Justice Rehnquist’s straightforward standard.

As able counsel for North Carolina stated at oral argument,

the Rehnquist standard “best sums it up.” Tr. of Oral Arg.

131. Chief Justice Rehnquist’s standard should apply not 

—————— 1 I doubt that there would be a material difference in application 

among the standards formulated by Chief Justice Rehnquist, Justice 

Souter, and the Solicitor General, given the similarities in the three 

standards, at least as described above. To be sure, different judges may 

reach different conclusions in an individual case about whether a 

particular state court interpretation is impermissible under the chosen 

standard. But I doubt that the precise formulation of the standard—

assuming it is Chief Justice Rehnquist’s, Justice Souter’s, or the Solicitor

General’s—would be the decisive factor in any such disagreement. 
Cite as: 600 U. S. ____ (2023) 3 

KAVANAUGH, J., concurring 

only to state court interpretations of state statutes, but also 

to state court interpretations of state constitutions. And in 

reviewing state court interpretations of state law, “we 

necessarily must examine the law of the State as it existed 

prior to the action of the [state] court.” Bush, 531 U. S., at 

114 (Rehnquist, C. J., concurring).

Petitioners here, however, have disclaimed any argument 

that the North Carolina Supreme Court misinterpreted the

North Carolina Constitution or other state law. See ante, 

at 29.2 For now, therefore, this Court need not, and 

ultimately does not, adopt any specific standard for our 

review of a state court’s interpretation of state law in a case

implicating the Elections Clause. See ante, at 28 (“We do

not adopt these or any other test by which we can measure

state court interpretations of state law in cases implicating

the Elections Clause”). Instead, the Court today says

simply that “state courts do not have free rein” and “hold[s]

only that state courts may not transgress the ordinary

bounds of judicial review.” Ante, at 26, 29. In other words, 

the Court has recognized and articulated a general

principle for federal court review of state court decisions in 

federal election cases. In the future, the Court should and 

presumably will distill that general principle into a more

specific standard such as the one advanced by Chief Justice

Rehnquist.

With those additional comments, I agree with the Court’s

conclusions that (i) state laws governing federal elections 

are subject to ordinary state court review, and (ii) a state

court’s interpretation of state law in a case implicating the 

Elections Clause is in turn subject to federal court review. 

—————— 2 Instead, petitioners make the broader argument, which the Court

today properly rejects, that the Elections Clause bars state courts from

reviewing state laws for compliance with the relevant state constitution. 
 

_________________ 

_________________ 

Cite as: 600 U. S. ____ (2023) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 21–1271 

TIMOTHY K. MOORE, IN HIS OFFICIAL CAPACITY AS 

SPEAKER OF THE NORTH CAROLINA HOUSE 

OF REPRESENTATIVES, ET AL., PETITIONERS 

v. REBECCA HARPER, ET AL. 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 

NORTH CAROLINA 

[June 27, 2023] 

JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,

and with whom JUSTICE ALITO joins as to Part I, dissenting. 

This Court sits “to resolve not questions and issues but

‘Cases’ or ‘Controversies.’” Arizona Christian School Tuition Organization v. Winn, 563 U. S. 125, 132 (2011); see 

U. S. Const., Art. III, §1. As a corollary of that basic constitutional principle, the Court “is without power to decide 

moot questions or to give advisory opinions which cannot 

affect the rights of the litigants in the case before it.” St. 

Pierre v. United States, 319 U. S. 41, 42 (1943) (per curiam).

To do so would be to violate “the oldest and most consistent 

thread in the federal law of justiciability.” Flast v. Cohen, 

392 U. S. 83, 96 (1968) (internal quotation marks omitted). 

The opinion that the Court releases today breaks that

thread. It “affirms” an interlocutory state-court judgment

that has since been overruled and supplanted by a final 

judgment resolving all claims in petitioners’ favor. The issue on which it opines—a federal defense to claims already 

dismissed on other grounds—can no longer affect the judgment in this litigation in any way. As such, the question is 

indisputably moot, and today’s majority opinion is plainly 

advisory. Because the writ of certiorari should be dismissed, I respectfully dissent. 
 

 

2 MOORE v. HARPER 

THOMAS, J., dissenting 

I 

Here is the case before us in a nutshell: A group of plaintiffs sued various state officials under state law. The defendants raised both state-law and federal-law defenses. In 

the interlocutory judgment below, the State Supreme Court

rejected both defenses and remanded for further proceedings. We granted review to consider the defendants’ federal

defense. But then, in subsequent proceedings, the state

court revisited defendants’ alternative state-law defense 

and held that it was meritorious. As a result, the court finally adjudicated the whole case in the defendants’ favor,

dismissing the plaintiffs’ claims with prejudice.

This is a straightforward case of mootness. The federal 

defense no longer makes any difference to this case—

whether we agree with the defense, disagree with it, or say

nothing at all, the final judgment in this litigation will be

exactly the same. The majority does not seriously contest 

that fact. Even so, it asserts jurisdiction to decide this freefloating defense that affects no live claim for relief, reasoning that a justiciable case or controversy exists as long as 

its opinion can in any way “alter the presently operative

statutes of ” a State. Ante, at 7 (internal quotation marks 

omitted). By its own lights, the majority “is acting not as 

an Article III court,” Uzuegbunam v. Preczewski, 592 U. S. 

___, ___ (2021) (ROBERTS, C. J., dissenting) (slip op., at 3),

but as an ad hoc branch of a state legislature. That is emphatically not our job. Compare U. S. Const., Art. III, §1, 

with N. C. Const., Art. II, §1. 

A 

To review the history of this case is to demonstrate that

the question presented is moot. In 2021, the North Carolina 

General Assembly passed an Act to redistrict the State for

elections to the U. S. House of Representatives. Plaintiffsrespondents filed an action in state court, seeking to enjoin

state elections officials (defendants-respondents here) from 
 

 

Cite as: 600 U. S. ____ (2023) 3 

THOMAS, J., dissenting 

conducting elections in accord with the Act.1 They based

their claim for relief on the North Carolina Constitution, 

which they argued prohibits excessive partisan gerrymanders. 

Petitioners, state legislators representing North Carolina’s interest in the enforcement of the Act, see N. C. Gen. 

Stat. Ann. §1–72.2 (2021); Berger v. North Carolina State 

Conference of the NAACP, 597 U. S. ___, ___, ___–___ (2022) 

(slip op., at 2, 8–9), raised defenses under both state and 

federal law. As relevant here, they argued: (1) that

partisan-gerrymandering claims are not justiciable under 

the North Carolina Constitution; and (2) that the State

Constitution cannot restrict the General Assembly’s congressional districting legislation under the federal Elections Clause, U. S. Const., Art. I, §4, cl. 1.

Initially, a three-judge trial court endorsed petitioners’ 

state-law defense and entered a final judgment dismissing 

plaintiffs-respondents’ claims with prejudice. But, on appeal, the North Carolina Supreme Court reversed that 

judgment. See Harper v. Hall, 380 N. C. 317, 868 S. E. 2d 

499 (2022) (Harper I). In Harper I, the court held that the 

2021 Act violated the State Constitution, enjoined its implementation, and remanded the case to the trial court for

remedial proceedings. In doing so, Harper I rejected both

petitioners’ state-law justiciability defense and their federal Elections Clause defense. 

Petitioners then sought this Court’s review of Harper I 

insofar as it rejected their federal defense. From the start, 

they faced a significant jurisdictional question. Our appel-

—————— 1Technically, there were two state-court actions below. These actions 

have been consolidated at every stage and can be regarded as one action

for all relevant purposes. For simplicity, I will use the singular. Also for 

simplicity, I focus here on plaintiffs-respondents’ challenge to the 2021 

congressional districting map, putting aside their parallel challenges to 

the Assembly’s 2021 State House and State Senate maps. 
 

4 MOORE v. HARPER 

THOMAS, J., dissenting 

late jurisdiction over state courts is limited to “[f]inal judgments or decrees rendered by the highest court of a State in 

which a decision could be had.” 28 U. S. C. §1257(a). But 

Harper I was “a classic example of non-finality”; it was an

order that resolved the issue of liability and remanded for 

remedial proceedings. Taylor v. Board of Ed. of City School 

Dist. of New Rochelle, 288 F. 2d 600, 602 (CA2 1961)

(Friendly, J.). Thus, under the normal rules, Harper I 

would not be “reviewable by this Court.” Jefferson v. City 

of Tarrant, 522 U. S. 75, 81 (1997). 

Nonetheless, this Court’s precedents have recognized “a 

limited set of situations” in which “finality as to [a] federal 

issue” permits our review, even in the absence of a final

judgment as to the case. O’Dell v. Espinoza, 456 U. S. 430 

(1982) (per curiam) (emphasis added). In granting certiorari, we relied on one of those doctrinal exceptions, premised on the assumption that “the federal issue” in this case 

would “survive and require decision regardless of the outcome of future state-court proceedings.” Cox Broadcasting 

Corp. v. Cohn, 420 U. S. 469, 480 (1975).

As it turned out, that assumption was wrong. After Harper I, on remand, the trial court adopted a remedial districting plan for the 2022 elections. Petitioners then appealed

that order, taking the case to the North Carolina Supreme

Court for a second time. Initially, the North Carolina Supreme Court released an opinion applying Harper I and affirming the trial court’s decree. Harper v. Hall, 383 N. C. 

89, 881 S. E. 2d 156 (2022) (Harper II ). But then, after 

granting petitioners’ request for rehearing, the court “revisit[ed] the crucial issue in this case: whether claims of 

partisan gerrymandering are justiciable under the state 

constitution.” Harper v. Hall, ___ N. C. ___, ___, 886 S. E. 

2d 393, 399 (2023) (Harper III ). After reexamining “the 

fundamental premises underlying the decisions in both 

Harper II and Harper I,” the court “h[e]ld that partisan ger-
 

Cite as: 600 U. S. ____ (2023) 5 

THOMAS, J., dissenting 

rymandering claims present a political question that is nonjusticiable under the North Carolina Constitution.” Id., at 

___–___, 886 S. E. 2d, at 400–401. It concluded: 

“This Court’s opinion in Harper I is overruled. We 

affirm the three-judge panel’s [original] 11 January 

2022 Judgment concluding, inter alia, that claims of 

partisan gerrymandering present nonjusticiable, political questions and dismissing all of plaintiffs’ claims

with prejudice. This Court’s opinion in Harper II is 

withdrawn and superseded by this opinion. The threejudge panel’s 23 February 2022 order addressing the

Remedial Plans is vacated. Plaintiffs’ claims are dismissed with prejudice.” Id., at ___, 886 S. E. 2d, at 449. 

In short, this case is over, and petitioners won. The trial 

court’s original final judgment in favor of petitioners, affirmed by the State Supreme Court in Harper III, represents “the final determination of the rights of the parties” 

in this case. N. C. Rule Civ. Proc. 54(a) (2023). Harper I

has been overruled, and plaintiffs-respondents’ claims for

relief have been dismissed on adequate and independent 

state-law grounds. As a result, petitioners’ alternative 

Elections Clause defense to those claims no longer requires 

decision; the merits of that defense simply have no bearing 

on the judgment between the parties in this action. That is 

the definition of mootness for an issue. 

It follows that no live controversy remains before this 

Court. For any case or controversy to exist here, petitioners 

must be injured by the judgment below, and we must be 

able to redress that injury by acting upon that judgment.

See, e.g., Food Marketing Institute v. Argus Leader Media, 

588 U. S. ___, ___ (2019) (slip op., at 4); see also Ex parte 

Bollman, 4 Cranch 75, 86 (1807) (“The criterion [of] appellate . . . jurisdiction, is that it revises and corrects the decisions of another tribunal”). But petitioners are not injured 

by the judgment of Harper I at all, nor could we redress any 
 

 

6 MOORE v. HARPER 

THOMAS, J., dissenting 

injury to petitioners by doing anything to it. Whether we 

accept or reject petitioners’ Elections Clause defense, 

plaintiffs-respondents’ claims remain dismissed. As far as 

this case is concerned, there simply is nothing this Court 

could decide that could make any difference to who wins or 

what happens next in any lower court. That is the definition of mootness for an appellate proceeding. 

The United States understands this. See Supplemental

Letter Brief for United States as Amicus Curiae 3 (May 11, 

2023) (“[T]he question this Court granted certiorari to decide is now moot because the Court’s resolution of that question could not affect the disposition of this case”). So do the 

elections officials whose conduct Harper I once enjoined. 

Supplemental Brief for State Respondents 1 (May 11, 2023) 

(“[T]his case is moot”). So, too, do the plaintiffs-respondents

who started this case in the first place. See Letter Brief for 

North Carolina League of Conservation Voters, Inc., et al. 

2 (May 11, 2023) (“The North Carolina Supreme Court’s 

February 2022 judgment reversing the same January 11,

2022 trial-court judgment that the North Carolina Supreme 

Court just affirmed is now a nullity”); Supplemental Letter

Brief for Rebecca Harper et al. 1 (May 11, 2023) (“Petitioners have won a full victory in state court”). As one group of

plaintiffs-respondents put it, “there is no non-frivolous basis for jurisdiction here.” Ibid. 

B 

The majority does not contest that the Elections Clause 

issue in this case was only a defense to plaintiffsrespondents’ claims for relief. Nor does it deny that Harper 

III overruled Harper I and affirmed the very same trialcourt judgment that Harper I had reversed. And it concedes 

that, as a result, plaintiffs-respondents’ claims have been

dismissed in full on state-law nonjusticiability grounds.

Thus, the majority does not contend that its opinion on the 
 

 

Cite as: 600 U. S. ____ (2023) 7 

THOMAS, J., dissenting 

Elections Clause issue could make any difference to the final judgment “adjudicating all the claims and the rights

and liabilities of all the parties” in this case. N. C. Rule Civ. 

Proc. 54(b). That should be the end of the discussion. Because the question presented “cannot affect the rights of

[the] litigants in the case before [us],” we “are without 

power to decide” it. North Carolina v. Rice, 404 U. S. 244, 

246 (1971) (per curiam).

Nonetheless, the majority finds that the judgment below 

still presents a live Article III case or controversy; it then

further concludes that the question presented has survived

and requires decision under Cox Broadcasting.2 See ante, 

at 6–11. In doing so, it relies extensively on petitioners’ 

“representations” that they “remain bound by the judgment

in Harper I.” Ante, at 10; see also ante, at 5, 7, 11. But, of 

course, parties’ mere representations that they are injured

never carry their “burden of demonstrating that they have 

standing” in this Court. TransUnion LLC v. Ramirez, 594 

U. S. ___, ___ (2021) (slip op., at 15) (emphasis added). Nor 

can such representations affect our “independent obligation 

to assure ourselves that jurisdiction is proper before proceeding to the merits.” Plains Commerce Bank v. Long 

Family Land & Cattle Co., 554 U. S. 316, 324 (2008).

To ensure that it has jurisdiction here, the majority must

explain how petitioners’ federal defense could still affect 

“the rights of [the] litigants in th[is] case.” Rice, 404 U. S., 

at 246. It fails to do so. Instead, it mostly points to irrele-

—————— 2 In this case, these two inquiries are identical, making the majority’s 

bifurcated analysis somewhat artificial. To say that an issue “will survive and require decision,” as Cox Broadcasting uses the phrase, simply 

means that it will not become moot, generally through some other issue

independently resolving the case (precisely what happened here). See, 

e.g., Pierce County v. Guillen, 537 U. S. 129, 141, n. 5 (2003); Florida v. 

Thomas, 532 U. S. 774, 779 (2001); Jefferson v. City of Tarrant, 522 U. S. 

75, 82–83 (1997); Cox Broadcasting, 420 U. S., at 478, 480–481, and n. 9. 
 

8 MOORE v. HARPER 

THOMAS, J., dissenting 

vant facts about the procedural history of this case and misapplies civil-procedure rules as if Harper I and Harper III 

did not involve the same case. But the error that actually

drives the majority’s conclusion is much deeper. The majority evidently thinks that when Harper I held the 2021 

Act unconstitutional, it entered a “judgment” affecting the 

2021 Act as a statute, independent of its application to the 

legal rights of the litigants in this case. And the majority 

thinks that to reverse Harper I ’s “judgment” would “negate 

the force of its order striking down” the Act, thus “alter[ing]

the presently operative statutes of North Carolina.” Ante, 

at 7 (internal quotation marks omitted). But, of course, the 

judicial power does not “operate on legal rules in the abstract”; it operates on the rights and liabilities of contending parties with adverse legal interests. California v. 

Texas, 593 U. S. ___, ___ (2021) (slip op., at 8) (internal quotation marks omitted). The majority’s reasoning cannot be

squared with the judicial power vested by the Constitution, 

the case-or-controversy requirement, or the nature of judicial review. 

I start by clearing away some of the brush. True, Harper 

III did not expressly “revisit” the Elections Clause issue, 

ante, at 6; true as well, petitioners did not obtain rehearing 

of Harper I, see ante, at 7. But none of that matters because 

Harper III ’s final judgment mooted the Elections Clause issue in this case by dismissing plaintiffs-respondents’ claims

on alternative state-law grounds.3 Likewise, the idea that 

—————— 3 Incidentally, the majority seriously errs when it says that Harper III 

“reaffirmed” Harper I ’s Elections Clause holding, ante, at 9, apparently 

referencing Harper III ’s statement that “[t]he General Assembly exercises [redistricting] authority subject to the express limitations in our 

constitution and in federal law,” ___ N. C., at ___, 886 S. E. 2d, at 422; 

see also ante, at 6. The only “express limitations” Harper III meant were 

“Article II, Sections 3 and 5,” of the State Constitution, which address 

only state-legislative districts. ___ N. C., at ___, 886 S. E. 2d, at 422. As 

Harper III acknowledged, “there is no provision in the state constitution 
 

Cite as: 600 U. S. ____ (2023) 9 

THOMAS, J., dissenting 

Harper III did not “alter or amend in any way the judgment 

in Harper I,” ante, at 9, is both irrelevant and incorrect. It 

is irrelevant because our jurisdiction requires a case, and 

this case is over no matter what becomes of the empty husk 

of Harper I ’s interlocutory judgment. It is incorrect because 

Harper I ’s judgment—reversing the trial court’s original

judgment and remanding the case—was completely negated by Harper III ’s affirmance of the same trial-court 

judgment.

In the same vein, the majority’s suggestion that Harper I

has any “res judicata consequences” is completely inapposite. Ante, at 9 (internal quotation marks omitted). Res 

judicata is the principle that “[a] final judgment on the merits of an action” bars relitigation “in [a] second action” of the

same claim or of issues actually litigated and necessary to

the judgment in the first action. Federated Department 

Stores, Inc. v. Moitie, 452 U. S. 394, 398 (1981); see also 

Taylor v. Sturgell, 553 U. S. 880, 892 (2008). Harper I was 

not a final judgment (as the majority concedes by applying 

Cox Broadcasting), so res judicata simply has nothing to do 

with it. Nothing decided by Harper I was res judicata in the 

second state-court appeal, see Southern R. Co. v. Clift, 260 

U. S. 316, 319 (1922), nor would Harper I ’s interlocutory

Elections Clause holding have any res judicata effect in a 

future action between these parties, see Restatement (Second) of Judgments §27, and Comment h, and Illus. 13 and 

14 (1980) (only issue determinations essential to a final 

—————— 

regarding redistricting of congressional districts.” Id., at ___, 886 S. E. 

2d, at 419. To the extent that Harper III suggests any view about 

whether such provisions would be binding if they existed, it seems to 

suggest agreement with petitioners. See ibid. (“The Federal Constitution . . . commits drawing of congressional districts to the state legislatures subject to oversight by the Congress of the United States”). But, of 

course, Harper III had no need to decide that question, because its statelaw justiciability holding fully determined the judgment in this action, 

thus mooting petitioners’ alternative Elections Clause defense. 
 

 

 

10 MOORE v. HARPER 

THOMAS, J., dissenting 

judgment have preclusive effect; if a defendant obtains a final judgment based on one defense, the court’s rejection of

alternative defenses is not preclusive in a later action). At 

the risk of belaboring the obvious, the clearest proof that 

Harper I was not a final judgment is Harper III—which “revisit[ed]” Harper I ’s determination of a “crucial issue in this 

case,” ___ N. C., at ___, 886 S. E. 2d, at 399; overruled Harper I ’s determination of that issue; and affirmed the very 

same final judgment for petitioners that Harper I had reversed.4 

How could petitioners still be injured, and what more

could this Court possibly do for them? The majority suggests that the interlocutory injunction issued in Harper I 

still harms petitioners, see ante, at 7, 10–11, but that idea 

is untenable. To start, the majority overlooks that the injunction only ran against the conduct of defendantsrespondents—the state officials who actually implement 

election laws—not petitioners as legislators. See Berger, 

597 U. S., at ___ (slip op., at 2). Next, the majority fails to

consider what it would mean if the injunction is still binding: that defendants-respondents are liable to “be held in 

contempt and put in jail” if they ever implement the 2021

Act, Richmond Cty. Bd. of Ed. v. Cowell, 254 N. C. App. 422,

426, 803 S. E. 2d 27, 30–31 (2017), even though Harper III

dismissed this suit’s challenge to the Act as “beyond the 

reach of [North Carolina’s] courts,” ___ N. C., at ___, 886 

S. E. 2d, at 431 (internal quotation marks omitted). That 

—————— 4These facts refute the majority’s dismissive reference to Harper III as 

“a distinct decision concerning remedies,” as well as any suggestion that 

Harper III was “another case” than Harper I for res judicata purposes. 

Ante, at 9–10 (internal quotation marks omitted). Harper I and Harper 

III involved exactly the same case, and there is “only one final judgment 

per case.” Chaka v. Lane, 894 F. 2d 923, 924 (CA7 1990) (Easterbrook, 

J.); see also Insurance Co. v. Dunn, 19 Wall. 214, 225 (1874) (“To say that 

there can be two final judgments upon the same pleadings, in the same 

cause, in the same court, . . . involves a solecism”). In this case, it was 

not Harper I. 
Cite as: 600 U. S. ____ (2023) 11 

THOMAS, J., dissenting 

idea defies both common sense and civil procedure. A court 

simply does not go on enforcing an interlocutory injunction—and imposing contempt sanctions for disobedience—

after reaching a final judgment dismissing every relevant 

claim for relief. Rather, the interlocutory injunction (like

all interlocutory orders) merges into the final judgment

fully “adjudicating all the claims and the rights and liabilities of all the parties” to the case. N. C. Rule Civ. Proc. 

54(b) (emphasis added). “With the entry of [Harper III ’s]

final judgment, the life of [Harper I ’s] injunction came to an

end, and it no longer ha[s] a binding effect on any one.” 

Madison Square Garden Boxing, Inc. v. Shavers, 562 F. 2d 

141, 144 (CA2 1977).

In any event, the majority’s analysis plainly does not turn 

on the belief that any defendant remains liable to potential 

contempt sanctions and jail time. Instead, its animating

idea (uncritically borrowed from petitioners) is that Harper 

I ’s “judgment” operated against the 2021 Act as a statute. 

The majority describes Harper I ’s “judgment” interchangeably as “enjoining the use of the 2021 ma[p]” and “striking 

down the 2021 pla[n].” Ante, at 7, 9. It then reasons that 

reversing that “judgment” would “negate the force of its order striking down the 2021 pla[n],” thus “alter[ing] the 

presently operative statutes of North Carolina” such that

the 2021 Act would “again take effect.” Ante, at 7–8 (internal quotation marks omitted). The majority regards this

aspect of Harper I ’s “judgment” as entirely independent of 

Harper III ’s final resolution of the claims in this case. See 

ante, at 5–8, 10–11. And it finds its theory “confirm[ed]” by 

a proviso in a remedial redistricting Act, passed immediately after Harper I, stating that the 2021 Act would “again 

become effective” if this Court reversed Harper I. Ante, at 

8 (internal quotation marks omitted). In short, the “case or

controversy” that the majority thinks is still before us has 

nothing to do with the parties’ rights and liabilities on the 

claims asserted in this action; rather, it is simply whether 
 

12 MOORE v. HARPER 

THOMAS, J., dissenting 

a particular legislative Act, which Harper I supposedly

made inoperative, will again be “operative” or “effective” as 

a state statute. Ante, at 7–8 (internal quotation marks 

omitted).

This reasoning bears no connection to the judicial power

of this Court or the court below. Judicial power is the power

to adjudicate “definite and concrete” disputes “touching the

legal relations of parties having adverse legal interests,” 

Rice, 404 U. S., at 246 (internal quotation marks omitted),

by “determin[ing] the respective rights and liabilities or duties” of the parties before a court in a particular case, Nicholson v. State Ed. Assistance Auth., 275 N. C. 439, 447, 

168 S. E. 2d 401, 406 (1969). Thus, a judgment binds the 

rights of the parties in that case, see Taylor, 553 U. S., at 

892–893, and it awards remedies that “operate with respect 

to [those] specific parties,” California, 593 U. S., at ___ (slip

op., at 8) (internal quotation marks omitted). In deciding

any case, the court must “ascertai[n] and declar[e] the law

applicable to the controversy”; this duty, in turn, implies

“the negative power to disregard an unconstitutional enactment” in deciding the case. Massachusetts v. Mellon, 262 

U. S. 447, 488 (1923); accord, Nicholson, 275 N. C., at 447, 

168 S. E. 2d, at 406; Marbury v. Madison, 1 Cranch 137, 

176–178 (1803). But this negative power of judicial review

is not a “power per se to review and annul acts of [legislation] on the ground that they are unconstitutional,” Mellon, 

262 U. S., at 488; “to change or to repeal statutes,” Person 

v. Doughton, 186 N. C. 723, 725, 120 S. E. 481, 483 (1923); 

or to issue orders that “operate on legal rules in the abstract,” California, 593 U. S., at ___ (slip op., at 8) (internal 

quotation marks omitted). Courts of law simply do not render “judgments” that toggle statutes from “operative” to “inoperative” and back again, as if judicial review were some 

sort of in rem jurisdiction over legislative Acts. 

Indeed, such a conception would contradict the most basic 
 

Cite as: 600 U. S. ____ (2023) 13 

THOMAS, J., dissenting 

premise of judicial review itself. “[A]n unconstitutional provision is never really part of the body of governing law,” for

“the Constitution automatically displaces [it] from the moment of [its] enactment.” Collins v. Yellen, 594 U. S. ___, 

___ (2021) (slip op., at 35) (emphasis added). Thus, when a 

court holds a statute unconstitutional, it is emphatically 

not depriving it of any legal force that it previously possessed as an Act. The court is only deciding “a particular 

case” “conformably to the constitution, disregarding” a statute that cannot “govern the case” because it is already 

“void.” Marbury, 1 Cranch, at 178; accord, Bayard v. Singleton, 1 N. C. 5, 7 (1787) (holding that the unconstitutional 

“act on which [a party’s] motion was grounded . . . must of 

course, in that instance, stand as abrogated and without 

any effect”). “That is the classic explanation for the basis of

judicial review” set forth in Marbury and Bayard, and it remains “from that day to this the sole continuing rationale

for the exercise of this judicial power.” Mackey v. United 

States, 401 U. S. 667, 678 (1971) (Harlan, J., concurring in

judgment in part and dissenting in part).

The majority’s theory thus fails twice over, both as a description of Harper I ’s “judgment” and as an explanation of 

how any justiciable controversy could exist in this Court. 

The only power that the North Carolina courts exercised at

any stage of this case was that of “determin[ing] the respective rights and liabilities or duties of litigants in [the] controversy” before them. Nicholson, 275 N. C., at 447, 168 

S. E. 2d, at 406. Harper I ’s judgment line did not read:

“Stricken down,” referring to the 2021 Act, but instead: “Reversed and remanded,” referring to the lower court judgment and the case between these parties. 380 N. C., at 404, 

868 S. E. 2d, at 560 (some capitalization deleted). The judicial power operates upon parties and cases, not statutes, 
 

 

14 MOORE v. HARPER 

THOMAS, J., dissenting 

and Harper I was no exception.5 

Even if it were, we would still have no case or controversy 

in front of us. A freestanding “judgment” of statutory invalidation—neutralizing the 2021 Act in some manner transcending the final determination of the parties’ respective

rights in this case—would not be a judicial action within the 

meaning of Article III, and it could not be reviewed in this

Court. See Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 

226–227 (1908). “We sit as a court of law, not a council of 

revision,” and “[o]ur powers of judicial review are judicial, 

not legislative, in nature.” Mackey, 401 U. S., at 697 (opinion of Harlan, J.). The only power that we ever could have 

exercised here was to modify the adjudicated rights and liabilities of the parties with respect to the claims in this action. Because we plainly cannot do so, no matter what we 

think about the Elections Clause, this proceeding is moot. 

—————— 5Nor did Harper III, despite agreeing with petitioners in all other respects, anywhere endorse their belief that some “order striking down the 

2021 [Act]” would survive a decision overruling Harper I and dismissing 

this lawsuit with prejudice. Ante, at 5 (internal quotation marks omitted). To the extent that the majority imputes that idea to Harper III, it 

again seriously misreads that decision. See n. 3, supra. The majority 

states that Harper III “did not reinstate the 2021 congressional pla[n] 

that Harper I had struck down.” Ante, at 5 (citing Harper III, ___ N. C., 

at ___–___, 886 S. E. 2d, at 446–448). But the part of Harper III that the 

majority cites had nothing to do with North Carolina’s congressional 

plan. Instead, it considered whether two state-constitutional provisions, 

which require that state-legislature districting plans “remain unaltered” 

until the next census after they have become “established,” N. C. Const.,

Art. II, §§3(4) and 5(4), prevented the Assembly from revising the 2021

state plans that Harper I had rejected. See Harper III, ___ N. C., at ___– 

___, 886 S. E. 2d, at 446–448. In determining that the 2021 state plans 

were never “established,” Harper III did not mean that Harper I somehow still restrains those plans; rather, it indicated that those plans themselves do not restrain the Assembly going forward. Absolutely nothing 

in Harper III suggests that the North Carolina Supreme Court’s judgments act directly upon legislative enactments—“striking them down” 

today and “reinstating” them tomorrow—or that the 2021 congressional

map remains subject to any restraint left over from Harper I. 
Cite as: 600 U. S. ____ (2023) 15 

THOMAS, J., dissenting 

And the idea that we could still decide petitioners’ moot federal defense because it could “alter the presently operative 

statutes of North Carolina”—even if it cannot affect the ultimate judgment in this action—is wholly foreign to Article 

III. Ante, at 7 (internal quotation marks omitted). 

In that light, the post-Harper I remedial Act and its “trigger provisio[n]” plainly can make no difference to our jurisdiction or lack thereof. Ante, at 8. When passed, that Act 

was essentially a change in the State’s conduct under judicial constraint (the result of Harper I ), but with the declared intention of resuming the original conduct if that 

constraint were removed. That declaration kept the controversy alive while the constraint still existed, as in Hunt v. 

Cromartie, 526 U. S. 541, 545, n. 1 (1999). But, after Harper III, there is no more constraint in this case. Harper I 

has been overruled, and plaintiffs-respondents’ claims have 

been dismissed in a final judgment. Nothing about this

case prevents the State from either enacting or implementing any districting plan. If “the presently operative statutes 

of North Carolina” need to be “alter[ed],” that is the General

Assembly’s job, not ours. Ante, at 7 (internal quotation 

marks omitted). Regardless, petitioners have fully prevailed in this case, and plaintiffs-respondents have not obtained any enforceable relief that could affect the conduct

of future elections. 

Indeed, to the extent the trigger provision adds anything

to the majority’s analysis, it only underscores the absence

of a justiciable case or controversy.6 A state legislature is 

—————— 6 I assume here that the majority is reading the provision correctly, 

though it is far from clear that this is actually the case. As relevant, the 

provision stated that the remedial redistricting plan “is effective contingent upon its approval or adoption by the [trial court],” “unless the 

United States Supreme Court or any other federal court reverses or stays 

[Harper I ] . . . (or [Harper I ] is otherwise enjoined, made inoperable, or 

ineffective), and in such case [the 2021 Act] is again effective.” 2022 N. C. 
 

 

16 MOORE v. HARPER 

THOMAS, J., dissenting 

free to condition the effectiveness of a change in state law 

on external events, including this Court’s actions in cases 

properly before it. But, as should be obvious, such a trigger 

provision cannot be the entire basis of an Article III case or 

controversy. Where, as here, the Court cannot affect the 

adjudicated rights and liabilities of the parties in the case 

below, a state legislature cannot manufacture a justiciable

controversy by providing that state law will change in some 

way depending on how this Court answers a moot question. 

That would simply be a roundabout way of asking this

Court to render an advisory opinion. But “federal courts 

cannot give answers simply because someone asks.” Uzuegbunam, 592 U. S., at ___ (ROBERTS, C. J., dissenting) (slip 

op., at 12). That is true when the request comes from Congress, see Muskrat v. United States, 219 U. S. 346, 360–361 

(1911), and it is equally true when the request comes from 

a state legislature.7 

—————— 

Sess. Laws 3, p. 10, §2. The majority’s reading is based on three suppositions that it does not justify. The first is that this provision has any 

reference at all to events after the 2022 elections, to which the remedial 

Act was exclusively directed. The second is that the dependent clause 

following “unless” is applicable even though, under the main clause, the 

remedial plan was never “adopt[ed]” by the trial court and thus never 

became “effective.” The third is that Harper III did not “otherwise . . . 

ma[ke]” Harper I “inoperable, or ineffective.” 

7The idea of deciding an issue to determine whether a statute shall be 

effective is not unprecedented, but the precedents do not aid the majority. At times, state legislatures have enacted laws contingent on statecourt opinions approving their constitutionality—in fact, such legislation 

produced the first two opinions addressing the Elections Clause question 

here (which both reached the opposite conclusion from today’s majority). 

See Act No. 5, 1863 Vt. Acts & Resolves p. 7, approved, Opinion of 

Judges, 37 Vt. 665 (1864); 1864 N. H. Laws p. 3061, approved, In re Opinions of Justices, 45 N. H. 595 (1864); see also In re Plurality Elections, 15 

R. I. 617, 8 A. 881 (1887) (similar situation and conclusion). Those opinions have always been understood as “advisory opinions.” See, e.g., In re 

Constitutionality of House Bill 88, 115 Vt. 524, 528–529, 64 A. 2d 169, 

171–172 (1949); Goodell v. Judith Basin County, 70 Mont. 222, 231, 224 
Cite as: 600 U. S. ____ (2023) 17 

THOMAS, J., dissenting 

In sum, there is no issue before this Court that can affect 

the judgment in this action. As such, the question presented is moot, and the writ of certiorari should be dismissed. 

II 

I would gladly stop there. The majority’s views on the 

merits of petitioners’ moot Elections Clause defense are of

far less consequence than its mistaken belief that Article

III authorizes any merits conclusion in this case, and I do

not wish to belabor a question that we have no jurisdiction 

to decide. Nonetheless, I do not find the majority’s merits

reasoning persuasive.

The Elections Clause of the Constitution provides that 

“[t]he Times, Places and Manner of holding Elections for 

Senators and Representatives, shall be prescribed in each

State by the Legislature thereof; but the Congress may at 

any time by Law make or alter such Regulations, except as 

to the Places of chusing Senators.” Art. I, §4, cl. 1. The 

question presented was whether the people of a State can 

place state-constitutional limits on the times, places, and 

manners of holding congressional elections that “the Legislature” of the State has the power to prescribe. Petitioners 

said no. Their position rests on three premises, from which 

the conclusion follows. 

The first premise is that “the people of a single State” lack

any ability to limit powers “given by the people of the 

United States” as a whole. McCulloch v. Maryland, 4 

Wheat. 316, 429 (1819). This idea should be uncontroversial, as it is “the unavoidable consequence of th[e] supremacy” of the Federal Constitution and laws. Id., at 436. As 

the Court once put it (in a case about the Article V ratifying

power of state legislatures), “a federal function derived from

the Federal Constitution . . . transcends any limitations 

—————— 

P. 1110, 1112 (1924). Such advisory opinions may be authorized by some 

state constitutions, but Article III gives this Court no such power. 
 

18 MOORE v. HARPER 

THOMAS, J., dissenting 

sought to be imposed by the people of a State.” Leser v. 

Garnett, 258 U. S. 130, 137 (1922).

The second premise is that regulating the times, places, 

and manner of congressional elections “‘is no original prerogative of state power,’” so that “such power ‘had to be delegated to, rather than reserved by, the States.’” Cook v. 

Gralike, 531 U. S. 510, 522 (2001) (first quoting 1 J. Story, 

Commentaries on the Constitution of the United States 

§627 (3d ed. 1858) (Story); then quoting U. S. Term Limits, 

Inc. v. Thornton, 514 U. S. 779, 804 (1995)). This premise

is firmly supported by this Court’s precedents, which have

also held that the Elections Clause is “the exclusive delegation of ” such power, as “[n]o other constitutional provision 

gives the States authority over congressional elections.” 

Cook, 531 U. S., at 522–523; see also United States v. Classic, 313 U. S. 299, 315 (1941) (“While, in a loose sense, the 

right to vote for representatives in Congress is sometimes

spoken of as a right derived from the states, this statement 

is true only in the sense that the states are authorized by 

the Constitution, to legislate on the subject as provided by

[the Elections Clause]” (citations omitted)).

The third premise is that “the Legislature thereof ” does 

not mean the people of the State or the State as an undifferentiated body politic, but, rather, the lawmaking power 

as it exists under the State Constitution. This premise comports with the usual constitutional meanings of the words

“State” and “Legislature,” as well as this Court’s precedents. “A state, and the legislature of a state, are quite different political beings.” Story §628. “A state, in the ordinary sense of the Constitution, is a political community of

free citizens . . . organized under a government sanctioned 

and limited by a written constitution.” Texas v. White, 7 

Wall. 700, 721 (1869). “‘Legislature,’” on the other hand, 

generally means “‘the representative body which ma[kes] 

the laws of the people.’” Smiley v. Holm, 285 U. S. 355, 365 

(1932) (quoting Hawke v. Smith, 253 U. S. 221, 227 (1920)). 
 

Cite as: 600 U. S. ____ (2023) 19 

THOMAS, J., dissenting 

To be sure, the precise constitutional significance of the 

word “Legislature” depends on “the function to be performed” under the provision in question. Smiley, 285 U. S., 

at 365. Because “the function contemplated by” the Elections Clause “is that of making laws,” id., at 366, this 

Court’s Elections Clause cases have consistently looked to 

a State’s written constitution to determine the constitutional actors in whom lawmaking power is vested. See Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. 787, 795–796, 814 (2015); Smiley, 

285 U. S., at 363; Ohio ex rel. Davis v. Hildebrant, 241 U. S. 

565, 566–568 (1916).8 The definitions that most precisely 

explain this Court’s holdings were given in a state-court 

case that anticipated Hildebrant and Smiley by several 

years: “[T]he word ‘Legislature,’ as used in [the Elections 

Clause] means the lawmaking body or power of the state, 

as established by the state Constitution,” or, put differently, 

“that body of persons within a state clothed with authority 

—————— 8The only complications with this approach have arisen where a State

Constitution did not vest the legislative power wholly in a single representative body, as the Federal Constitution appears to presuppose.

Thus, in Hildebrant, the Court rejected as nonjusticiable an argument 

“that to include the referendum within state legislative power for the 

purpose of apportionment” was “repugnant to” the Elections Clause. 241 

U. S., at 569. Somewhat similarly, in Arizona State Legislature, the 

Court faced a State Constitution “in which the people of a State exercise 

legislative power coextensive with the authority of an institutional legislature,” 576 U. S., at 819, with the majority “see[ing] no constitutional 

barrier to a State’s empowerment of its people by embracing that form of

lawmaking,” id., at 808–809. As relevant to identifying the State’s “Legislature,” the majority opinion emphasized that Arizona’s written Constitution “ ‘establishes the electorate of Arizona as a coordinate source of 

legislation’ on equal footing with the representative legislative body,” id., 

at 795 (alteration omitted), and thus held that “lawmaking power in Arizona includes the initiative process,” id., at 793; see also id., at 814. No 

such complications exist in North Carolina, where the State Constitution

simply provides that “[t]he legislative power of the State shall be vested

in the General Assembly.” Art. II, §1. 
 

 

 

20 MOORE v. HARPER 

THOMAS, J., dissenting 

to make the laws.” State ex rel. Schrader v. Polley, 26 S. D. 

5, 10–11, 127 N. W. 848, 850–851 (1910). 

If these premises hold, then petitioners’ conclusion follows: In prescribing the times, places, and manner of congressional elections, “the lawmaking body or power of the

state, as established by the state Constitution,” id., at 10, 

127 N. W., at 850, performs “a federal function derived from

the Federal Constitution,” which thus “transcends any limitations sought to be imposed by the people of a State,” Leser, 258 U. S., at 137. As shown, each premise is easily supported and consistent with this Court’s precedents.

Petitioners’ conclusion also mirrors the Court’s interpretation of parallel language in the Electors Clause9 in McPherson v. Blacker, 146 U. S. 1 (1892): “[T]he words, ‘in such 

manner as the legislature thereof may direct,’” “operat[e]

as a limitation upon the State in respect of any attempt to 

circumscribe the legislative power.” Id., at 25.10 

The majority rejects petitioners’ conclusion, but seemingly without rejecting any of the premises from which that 

conclusion follows. Its apparent rationale—that Hildebrant, Smiley, and Arizona State Legislature have already 

foreclosed petitioners’ argument—is untenable, as it requires disregarding a principled distinction between the issues in those cases and the question presented here. In 

those cases, the relevant state-constitutional provisions addressed the allocation of lawmaking power within each 

—————— 9The Electors Clause provides that “[e]ach State shall appoint, in such

Manner as the Legislature thereof may direct, a Number of Electors” for 

the election of the President and Vice President. Art. II, §1, cl. 2. 10Contrary to the majority’s suggestion of ambiguity, see ante, at 20, 

this statement can only have meant that the state legislature’s power to

direct the manner of appointing electors may not be limited by the state

constitution. No other “limitation upon the State” is possible, for, as the 

McPherson Court said just a few sentences earlier, “the constitution of 

the State” is the only “authority” that ordinarily “limit[s]” “[t]he legislative power.” 146 U. S., at 25. 
Cite as: 600 U. S. ____ (2023) 21 

THOMAS, J., dissenting 

State; they defined what acts, performed by which constitutional actors, constituted an “exercise of the lawmaking 

power.” Smiley, 285 U. S., at 364; cf. U. S. Const., Art. I, §7, 

cl. 2 (describing the processes upon completion of which a 

bill “become[s] a Law”). In other words, those cases addressed how to identify “the Legislature” of each State. But, 

nothing in their holdings speaks at all to whether the people of a State can impose substantive limits on the times,

places, and manners that a procedurally complete exercise 

of the lawmaking power may validly prescribe. These are 

simply different questions: “There is a difference between 

how and what.” J. Kirby, Limitations on the Power of State

Legislatures Over Presidential Elections, 27 Law & Contemp. Prob. 495, 503 (1962). 

This is not an arbitrary distinction, but one rooted in the 

logic of petitioners’ argument. No one here contends that 

the Elections Clause creates state legislatures or defines 

“the legislative process” in any State. Smiley, 285 U. S., at 

369. Thus, while the Elections Clause confers a lawmaking 

power, “the exercise of th[at] authority must” follow “the 

method which the State has prescribed for legislative enactments.” Id., at 367. But, if the power in question is not 

original to the people of each State and is conferred upon 

the constituted legislature of the State, then it follows that 

the people of the State may not dictate what laws can be 

enacted under that power—precisely as they may not dictate what constitutional amendments their legislatures can 

ratify under Article V. See Leser, 258 U. S., at 137.11 Ac-

—————— 

11The majority states that Smiley “already distinguished” Leser as involving a nonlawmaking function. Ante, at 21. But Smiley distinguished 

the “electoral,” “ratifying,” and “consenting” functions of state legislatures from their “lawmaking” function under the Elections Clause, 285 

U. S., at 365–366, only to explain why the last function must be “exer-
 

 

22 MOORE v. HARPER 

THOMAS, J., dissenting 

cordingly, if petitioners’ premises hold, then state constitutions may specify who constitute “the Legislature” and prescribe how legislative power is exercised, but they cannot 

control what substantive laws can be made for federal elections. 

The majority indicates that it does not perceive this distinction between “substantive” and “procedural” rules, see 

ante, at 23–24,12 illustrating its doubts with a rhetorical

question: “When a governor vetoes a bill because of a disagreement with its policy consequences, has the governor exercised a procedural or substantive restraint on lawmaking?” Ante, at 24. The answer is straightforward: The 

power of approving or vetoing bills is “a part of the legislative process” because it is “a part in the making of state

laws.” Smiley, 285 U. S., at 368–369; see also INS v. 

Chadha, 462 U. S. 919, 933, 951, 954, 957, n. 22, 958 (1983)

(repeatedly referring to bicameralism and presentment as 

—————— 

cise[d] . . . in accordance with the [State’s] method . . . for legislative enactments,” id., at 367, including “the participation of the Governor wherever the state constitution provided for such participation as part of the 

process of making laws,” id., at 370. Nothing in Smiley even hints that 

a federally delegated power fails to “transcen[d] limitations sought to be 

imposed by the people of a State” simply because it is a lawmaking function. Leser, 258 U. S., at 137. 12This admission carries troubling implications for other fields, as 

comparable “distinction[s] between procedure and substance [are] not 

unknown in the law.” United States v. Kras, 409 U. S. 434, 463, n. 6 

(1973) (Marshall, J., dissenting). For example, our habeas corpus jurisprudence has long distinguished “substantive” constitutional rules from

“procedural” ones. Schriro v. Summerlin, 542 U. S. 348, 352, 353 (2004). 

Our sentencing appellate review jurisprudence similarly recognizes a 

distinction between the “procedura[l] sound[ness]” of a sentencing decision and “the substantive reasonableness of the sentence imposed.” Gall 

v. United States, 552 U. S. 38, 51 (2007). And, no less essential a statute 

than the Rules Enabling Act presupposes a meaningful distinction between “rules of practice and procedure” and matters of “substantive 

right.” 28 U. S. C. §§2072(a) and (b). Indeed, the constitutionality of the 

Act rests upon this very distinction. See Hanna v. Plumer, 380 U. S. 460, 

470–472 (1965); Sibbach v. Wilson & Co., 312 U. S. 1, 9–10 (1941). 
 

 

Cite as: 600 U. S. ____ (2023) 23 

THOMAS, J., dissenting 

the “procedure” or “procedures” of lawmaking). A Governor’s motives for vetoing a certain bill are irrelevant to the 

effect of the veto as part of the legislative process, just as 

the motives that may lead one house of the legislature to 

reject a bill passed by the other house are irrelevant to the 

effect of its doing so. Put simply, when this power is conferred on the Governor of a State, it “makes him in effect a 

third branch of the legislature.” T. Cooley, General Principles of Constitutional Law 50 (1880) (emphasis added); accord, Arizona State Legislature, 576 U. S., at 833 (ROBERTS, 

C. J., dissenting) (noting that “approving [and] vetoing 

bills” are “legislative functions”); Chadha, 462 U. S., at 947 

(explaining that “lawmaking” is “a power . . . shared by both 

Houses and the President”); La Abra Silver Mining Co. v. 

United States, 175 U. S. 423, 453 (1899) (noting that Presidential approval “is legislative in its nature”); cf. 1 W. 

Blackstone, Commentaries on the Laws of England 150

(1765) (“[T]he king is himself a part of the parliament”).

This is a question of who, not what, and thus is “a matter of 

state polity” as far as the Elections Clause is concerned.

Smiley, 285 U. S., at 368. 

But substantive constraints on what the lawmaking 

power can do (gubernatorial approval included) demand an 

entirely different justification—one that the majority never 

provides. It does not overrule Cook and Thornton to hold 

that the power to prescribe times, places, and manners for 

congressional elections is an original power of the people of 

each State. Nor does it hold that the people are themselves 

“the Legislature” to which the Federal Constitution delegates that power. See ante, at 17–18. Indeed, the majority 

devotes little attention to the source and recipient of the 

power described in the Elections Clause, notwithstanding 

their direct relevance to the question presented. 

Instead, the majority focuses on the power of state courts 

to exercise “judicial review” of Elections Clause legislation. 

See ante, at 11–15, 26–30. But that power sheds no light 
 

24 MOORE v. HARPER 

THOMAS, J., dissenting 

on the question presented. In every case properly before it, 

any court—state or federal—must ascertain and apply the 

substantive law that properly governs that case. Thus, the 

court naturally must apply the Federal Constitution rather 

than any statute in conflict with it. The court must also 

apply the state constitution over any conflicting statute enacted under a power limited by that constitution. Petitioners’ argument, however, is that legislation about the times, 

places, and manner of congressional elections is not limited 

by state constitutions—because the power to regulate those 

subjects comes from the Federal Constitution, not the people of the State. Right or wrong, this question has nothing 

to do with whether state courts have the power to conduct 

judicial review in the first place. To say that “state judicial 

review” authorizes applying state constitutions over conflicting Elections Clause legislation, ante, at 15, is simply to 

assume away petitioners’ argument. 

III 

The majority opinion ends with some general advice to

state and lower federal courts on how to exercise “judicial

review” “in cases implicating the Elections Clause.” Ante, 

at 28. As the majority offers no clear rationale for its interpretation of the Clause, it is impossible to be sure what the

consequences of that interpretation will be. However, judging from the majority’s brief sketch of the regime it envisions, I worry that today’s opinion portends serious troubles 

ahead for the Judiciary.

The majority uses the separate writings in Bush v. Gore, 

531 U. S. 98 (2000) (per curiam), as a loose touchstone for 

the kind of judicial review that it apparently expects federal 

courts to conduct in future cases like this one. On its face, 

this is an awkward analogy, for there is a significant difference between Bush and Harper I. In Bush, the state court’s 

judgment was based on an interpretation of state statutory 

law, enacted by the state legislature. Thus, the relevant 
Cite as: 600 U. S. ____ (2023) 25 

THOMAS, J., dissenting 

Electors Clause question was whether, in doing so, the state

court had departed from “the clearly expressed intent of the 

legislature,” 531 U. S., at 120 (Rehnquist, C. J., concurring), “impermissibly distort[ing]” the legislature’s enactments “beyond what a fair reading required,” id., at 115. In 

Harper I, by contrast, there was no doubt that the state

court departed from the clearly expressed intent of the legislature; it rejected the legislature’s enactment as unconstitutional. 

By doing so, today’s majority concludes, Harper I did not 

commit per se error, as the Elections Clause permits state 

courts to apply substantive state-constitutional provisions 

to the times, places, and manner of federal elections. At the 

same time, state courts are warned that they operate under 

federal-court supervision, lest they “transgress the ordinary bounds of judicial review such that they arrogate to

themselves the power vested in state legislatures to regulate federal elections.” Ante, at 29. Thus, under the majority’s framework, it seems clear that the statutoryinterpretation review forecast in Bush (or some version of 

it) is to be extended to state constitutional law. 

In this way, the majority opens a new field for Bush-style

controversies over state election law—and a far more uncertain one. Though some state constitutions are more

“proli[x]” than the Federal Constitution, it is still a general 

feature of constitutional text that “only its great outlines

should be marked.” McCulloch, 4 Wheat., at 407. When “it 

is a constitution [courts] are expounding,” ibid., not a detailed statutory scheme, the standards to judge the fairness 

of a given interpretation are typically fewer and less definite. 

Nonetheless, the majority’s framework appears to demand that federal courts develop some generalized concept 

of “the bounds of ordinary judicial review,” ante, at 28; apply it to the task of constitutional interpretation within 

each State; and make that concept their rule of decision in 
 

26 MOORE v. HARPER 

THOMAS, J., dissenting 

some of the most politically acrimonious and fast-moving 

cases that come before them. In many cases, it is difficult

to imagine what this inquiry could mean in theory, let alone 

practice. For example, suppose that we were reviewing 

Harper I under this framework. Perhaps we could have determined that reading justiciable prohibitions against partisan gerrymandering into the North Carolina Constitution 

exceeded the bounds of ordinary judicial review in North 

Carolina; perhaps not. If not, then, in order to ensure that 

Harper I had not “arrogate[d]” the power of regulating federal elections, ante, at 29, we would presumably have

needed to ask next whether it exceeded the bounds of ordinary judicial review in North Carolina to find that the specific congressional map here violated those prohibitions. After all, in constitutional judgments of this kind, it can be

difficult to separate the rule from the fact pattern to which 

the rule is applied. We have held, however, that federal 

courts are not equipped to judge partisan-gerrymandering 

questions at all. Rucho v. Common Cause, 588 U. S. ___, 

___ (2019) (slip op., at 30). It would seem to follow, a fortiori, that they are not equipped to judge whether a state 

court’s partisan-gerrymandering determination surpassed

“the bounds of ordinary judicial review.”

Even in cases that do not involve a justiciability mismatch, the majority’s advice invites questions of the most 

far-reaching scope. What are “the bounds of ordinary judicial review”? What methods of constitutional interpretation do they allow? Do those methods vary from State to 

State? And what about stare decisis—are federal courts to 

review state courts’ treatment of their own precedents for

some sort of abuse of discretion? The majority’s framework

would seem to require answers to all of these questions and 

more. 

In the end, I fear that this framework will have the effect 

of investing potentially large swaths of state constitutional

law with the character of a federal question not amenable 
Cite as: 600 U. S. ____ (2023) 27 

THOMAS, J., dissenting 

to meaningful or principled adjudication by federal courts. 

In most cases, it seems likely that the “the bounds of ordinary judicial review” will be a forgiving standard in

practice, and this federalization of state constitutions will 

serve mainly to swell federal-court dockets with stateconstitutional questions to be quickly resolved with generic

statements of deference to the state courts. On the other 

hand, there are bound to be exceptions. They will arise haphazardly, in the midst of quickly evolving, politically 

charged controversies, and the winners of federal elections 

may be decided by a federal court’s expedited judgment that 

a state court exceeded “the bounds of ordinary judicial review” in construing the state constitution. 

I would hesitate long before committing the Federal Judiciary to this uncertain path. And I certainly would not do

so in an advisory opinion, in a moot case, where “the only

function remaining to the court is that of announcing the 

fact and dismissing the cause.” Ex parte McCardle, 7 Wall. 

506, 514 (1869).

I respectfully dissent.