Thread by @EdWhelanEPPC

I'll be following today's oral argument in #MooreVHarper and will do tweet thread here. For overview of issues, see my three posts:
nationalreview.com/bench-memos/th…
nationalreview.com/bench-memos/th…
nationalreview.com/bench-memos/th…

Four counsel arguing today: David Thompson for state legislators; former acting SG Neal Katyal for non-state respondents; former SG Don Verrilli for state respondents; and SG Elizabeth Prelogar for US.

Have to wonder when last time (if ever) was that three folks who headed or head Office of Solicitor General argued in same case. (Here they are all on the same side.)

I'll be especially interested in questions from Chief, Kavanaugh, and ACB.

CT: Explain exactly what we are reviewing and basis of jurisdiction.

Good clear answer by Thompson.

CT: We don't normally review state supreme court interpretations of state constitutions.

Thompson: We take state law as given. Violation of Elections Clause.

Chief: You concede governor's veto, but governor isn't part of legislature.

Thompson cites Chief's dissent in Arizona case, says not challenging precedent.

Chief: Doesn't Smiley undermine your categorical position?

Thompson: Procedural limitation in Smiley. Substantive here.

Chief: Why do you say veto is procedural? What if substantive basis for veto?

Thompson: Veto itself is procedural step.

ACB: Is your formalistic test just way of dealing with our precedent?

Thompson: Respecting precedent, but also sound basis for distinction between procedure and substance. Historical example.

David Thompson is doing excellent job. Very clear and measured.

KBJ: Why isn't what counts as legislature a matter of state constitutional law?

Thompson: Duty under Elections Clause is federal function.

KBJ: Where does "legislature's" power come from? Need to look to state constitution to see where lawmaking power is.

Thompson cites Leser to show that substantive limit in state constitution doesn't apply.

SS: State constitutions regulate all sorts of place, time, and manner. How read in substantive limitation? Tenth Amendment reserved power.

Thompson: We read history very differently.

ACB: What if Elections Clause wasn't in Constitution? Would Tenth Amendment mean states had power anyway?

Thompson: Court in US Term Limits said Elections Clause delegated federal power. But in any event, federal function.

KBJ: Is your argument that state constitution has no role to play?

Thompson: No *substantive* limits.

Kagan: Why doesn't Smiley mean that "legislature" is embedded in set of constraints, take that system as we find it?

Thompson: State courts can apply federal-law constraints. Palm Beach County.

Kagan: Our precedents give you lots of problems. Smiley, recent Arizona case.

Kagan adds Rucho dicta as third difficult precedent. Agrees issue here wasn't involved in any of the three cases.

Thompson addresses all three cases, defends substance/procedure line.

SS: Substance/procedure line makes no sense to me. Runs through series of questions.

KJB: What if we have competing entities claiming to be legislature?

Thompson: State law governs.

[I don't see how proposition that state constitution determines what body is state legislature matters.]

oops, *KBJ*

Chief: Is "free and fair elections" provision in state constitution substance or procedure?

Thompson: Substance. Also backup argument on lack of standards.

Alito: Even under your primary theory, there will be questions about meaning of state laws. State courts will have to interpret. State officials will have to decide how to apply.

Thompson: Our theory allows that.

Alito: What if NC provisions were statutes and state supreme court interpreted them as it did?

Thompson: No judicially manageable standards. Nondelegation problem.

Kav: Your view seems to go further than Chief's position in Bush v. Gore.

Thompson: Chief was dealing with state-court interpretation of *statutes*. We're dealing here with substantive state-constitutional provisions.

Kav: Palm Beach County just said there is federal issue. [Doesn't see as supporting substance/procedure line.]

Thompson: Court cited and quoted McPherson v. Blacker, vacated opinion below, and remanded with instructions concerning substance vs. procedure.

Chief: You propose narrower alternative in reply brief.

Thompson: Backup theory would allow state constitutional provisions with judicially manageable standards.

SS proceeds with another obvious misunderstanding of petitioners' position.

Kagan: Let's think about consequences. Your theory would allow no state-court remedy for extreme gerrymandering, vote suppression. Gets rid of normal checks and balances at time they are needed most.

Thompson: Checks come from federal Constitution and federal laws.

Gorsuch: What concerns would Founders have had about state constitutions trumping legislatures on this matter.

Thompson cites gerrymanders in state constitutions, Madison's opposition. Joseph Story.

Gorsuch: Virginia tried to constitutionalize 3/5 rule. Maryland in Leser. Clarifies petitioners' position.

Kav: On backup theory, can state courts construe state law according to background principles, including compliance with state constitution?

Thompson: Yes.

Kav: Nearly all state constitutions have regulated federal elections in some way. What do with historical practice? What weight?

Thompson: Bruen says focus on time of Founding.

ACB on Rehnquist concurrence in Bush v. Gore.

Thompson agrees re standard of review of state-court interpretation of state laws.

ACB: Substance/procedure line is difficult to sort out. How is that more manageable than line in Rehnquist concurrence?

Thompson: This is easy case. Spells out formalist line. Functionalist approach of respondents would be messier.

KBJ spends a lot of time just reiterating other side's position.

Such an elementary answer to KBJ's very long question. (Whether it's right or not is another matter, but KBJ should surely understand what petitioner's position is.)

Now Neal Katyal for non-state respondents.

Katyal: P's position would have sweeping consequences, would invalidate lots of laws, sow election chaos.

CT: Discuss source of state court's involvement in federal election.

NK: Palm Beach says some role in reviewing state court interpretation.

Gorsuch: On Smiley/veto, isn't it clear that's sharing of legislative power under Framers' view?

Katyal: Smiley says take legislatures as you fine them.

Gorsuch: NC supreme court isn't acting as legislature:

NK: Agree. But limitations on lawmaking power apply.

KBJ: P isn't questioning judicial review. Issue is what law applies. Am I wrong to hold same view of legislature constrained by state constitution that you do?

Katyal: Leser is about "legislature" in Article V. Smiley says that Elections Clause legislative power is different.

Alito probes boundaries of R's position. Katyal agrees that state constitution can't empower supreme court to set districts.

Alito: Suppose state supreme court says essence of state constitution is fairness, strikes down map on that ground, doesn't cite any provision in constitution.

Katyal: That's fine.

Alito: Does it further democracy to transfer redistricting power from legislature to state supreme courts?

Katyal: Yes. Checks on process. Congress can supplant. [Of course, that's answer to legislative abuse.]

Alito: What about Rehnquist's approach applied to state constitutions?

Katyal: Court has never second-guessed state supreme court interpretation of state constitution.

Alito questions that.

Chief: You quote language from Rucho. Does "fair and free elections" provide standards and guidelines?

Katyal: Yes.

Katyal: Rehnquist standard in Bush v. Gore concurrence needs to be sky-high.

Alito: Contract Clause and Takings Clause require SCOTUS to review state court interpretation of state law.

Katyal: There is some review by this Court in extreme circumstances.

Katyal has name-dropped Judge Sutton (my friend and co-editor of Essential Scalia) at least four times.

Alito: What is check on appointed state supreme court going crazy?

Katyal: Amendment process in states.

Katyal: Deferential judicial review is rooted in Elections Clause, not Due Process Clause.

Kagan: Rehnquist concurrence relates to statutes, but is there corollary on state constitutional provisions?

Katyal: Yes.

Katyal: Interpretation would have to be absurd to allow federal-court overturning. Higher on state constitution than on statute.

Gorsuch: Did VA in 1830 act consistent with Elections Clause?

Katyal: Yes.

NG: What would prevent state from adopting 3/5 rule in state constitution?

Katyal: No position on that.

Gorsuch: What if state constitution gerrymanders?

NG: No Elections Clause violation.

Gorsuch: NC supreme court cited open-ended provisions, switched positions. Addressed Elections Clause issue in 3 paragraphs.

NG: 3 paragraphs was enough. Need to be cautious in reviewing state-court decisions.

Kavanaugh on Rehnquist concurrence as check on state supreme court adventurism. RBG dissent in Bush v. Gore accepted principle. You accept but didn't set forth higher standard for state constitutional rulings.

Katyal: Federalism concerns justify higher standard. [??]

Unlikely that anything will turn on it, but Katyal's position that rulings on state constitutional provisions require even more deference than rulings on statutes isn't convincing.

ACB: What's source of federal check on legislative power under Elections Clause?

Katyal: Concern is judicial seizing of lawmaking apparatus. Also Tenth Amendment. [Others have relied on Due Process Clause, but Katyal has oddly rejected that.]

ACB: Why different for rulings on state constitutional rulings?

NG: Standard is extraordinarily high for constitutional and statutory rulings.

Now Don Verrilli for state respondents.

Thompson's 45 minutes went around 65. Katyal's 15 minutes went nearly an hour. Verrilli has 15 minutes.

CT: What's review standard?

Verrilli: Is state decision sharp departure from ordinary modes of state interpretation?

Chief: Where is line between interpreting state constitution and supplanting legislature?

DV defends what NC court did.

Chief: Nature of judicial power now is very different from at framing. Courts appoint special masters on redistricting. Disconnect with grant of authority?

DV: Express statutory authorization for what happened in NC.

Kagan: What if you were in state w/o NC procedures and court did redistricting on own? Any limits on what court can do?

DV: Equitable principles might apply.

Kagan: Same highly deferential standard for statutory and constitutional rulings?

DV: Not sure I see a gap between the two.

Gorsuch: Issue should be whether legislature has prescribed time/place/manner.

DV resists, calls for greater deference.

Alito: Can your standard be flunked?

Verrilli: Yes. Naked declaration of unfairness.

Alito: We shouldn't impose make-believe limit. Discusses dubious aspects of NC ruling.

Verrilli argues that Ps aren't challenging state constitutional ruling. [I thought that they were making that as fallback argument.]

In other words, as I understand it, Ps' primary argument (substance vs. procedure) accepts arguendo NC supreme court ruling, but fallback argument doesn't.

SS: I'm trying to organize an opinion if I were to rule in your favor.

I'd be very surprised if whoever assigns this opinion trusts SS with it, but we'll see.

Kagan: Your colloquy with Alito made me uneasy with your standard for review of constitutional decisions. Too easy to be satisfied? We justices often disagree strongly with each other. So do other judges. How cabin the standard?

Verrilli: That's up to you in applying it.

ACB: Do we have jurisdiction?

DV: No final judgment yet.

I wish justices would just skip their rounds when they have nothing new to ask about.

Verrilli commends what NY, CA, FL, and OH have done through state constitutions to restrict gerrymandering.

Verrilli's 15 minutes went only around 33.

Now SG Prelogar on behalf of US. 15 minutes. Then brief Thompson rebuttal.

CT: Ironic that you're on state side of federalism issue. Do you agree with highly deferential standard?

Prelogar: Yes. Plus, Congress has own power under Elections Clause.

Gorsuch: What is status of state-court proceedings?

Prelogar: Still pending.

Gorsuch on Rehnquist theory of outer bounds on state judicial interpretation: Isn't it clear that rules prescribed by NC legislature won't be followed here?

Prelogar: Legislative role has to yield to state constitution. Consistent with Elections Clause.

Chief: Power doesn't come from state constitution. That's why we have this case. [Rebuts KBJ version.]

Chief: You accept that this Court has role?

Prelogar: Yes. But very deferential standard.

Alito: How interpret two federal statutory provisions?

Prelogar: Reflects Congress's recognition that state courts can play role, subject to federal constraints.

SG agrees with Alito that case can't be resolved on basis of federal statutes.

SG says no gap between review of constitutional and statutory intepretations. Agrees with Verrilli, contra Katyal. [Seems clearly right to me.]

Gorsuch, Kavanaugh, ACB pass. KBJ doesn't, but has nothing new to explore.

Thompson on rebuttal clarifies that he isn't agreeing that state court's interpretations were sound. That was arguendo concession only on primary argument.

Curious that Katyal, Verrilli, and Prelogar all claimed Thompson was abandoning fallback argument.

End of argument. Just barely under 3 hours for an argument allotted 90 minutes.