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ur free mobile video app, or online at c-span.org. we wrap up our discussion on the supreme court's recent term, taking a look at the decision in the case moore v harper and derek muller is with us. he teaches election law and civil procedure, welcome to "washington journal." guest: thanks for having me. host: tell us why the supreme court took up the case. what was that about? guest: moore versus harper came out of north carolina dealing with the redistricting case. allegations were that the north carolina legislature drew a gerrymandered map. the map was designed to favor republicans at the expense of democrats both the congressional

map in the legislative maps were drawn in a way that would advantage republicans in the state. that was challenged in state court and the north carolina supreme court said we look at this and we have a state constitution that provides a number of guarantees, equal protection, freedom of assembly, the right to vote and when we construe these provisions of the constitution, we conclude that the state legislature exceeded the bounds of the state constitution when it drew this map and engage in this partisan gerrymandering. that was challenged and appealed appeal to the united states supreme court and they were asked to examine the congressional map to say whether or not the state supreme court had appropriate place to step in here. the united states constitution says the legislature of each state provides the rules for the time, places and manner of

holding congressional elections in the argument was that the state supreme court could not step in under these circumstances and judge on the state legislature. that's part of what the supreme court was asked to decide. host: the election clauthe constitution, the times, places and manner of holding elections for senators shall be prescribed in eace byhe legislature thereof. congress may at any time by law may or alter such regulations except in places of choosing senators. it wasn't just the map at stake here, it was the authority, if you will in this term was called the independent state legislature. . what was that about? guest: this question has cropped up in recent years. there is a lot of litigation and 2020 in a cropped up under parallel clauses of the constitution dealing with presidential elections like in

florida. if the constitution uses the word legislature and gives the role of the legislature to engage in the times, places and manner of holding the elections subject to congress, what other constraints can be placed on the legislature under state law, under the state constitution? on the one hand, legislature means legislature and you would think that means not the governor or the court or anybody else. on the other hand, the legislature is a body created by the state constitution. that indicates who the members of the legislature are and how they go about doing business and for the last hundred years, the supreme court has approved a handful of ways in which the legislature can be checked. the governor can veto bills by the legislature. the people by referendum can reject a law enacted by the

legislature relating to redistricting. the people by ballot initiative can move the power from the legislature to a ballot commission or to an independent redistricting commission. there have been some of these questions over the years but here was a question of the constitution using vague language. it talks about the freedom of assembly. when the state supreme court stepped into interpret those provisions of the constitution, is it checking the legislature for anything even absentee ballots or is it unable to track the legislature and they can only be checked by federal law or congress? host: the ruling by the supreme court was 6-3 upholding the north carolina supreme court decision, correct? guest: yes, it was. six justices joined the majority opinion which was by chief

justice roberts. we recognize that there are some ordinary background principles of law including state constitutions that constrain how state legislatures act. there is no question that the legislature has the prerogative under the elections clause of the constitution. that doesn't mean it can act independent of other sources of law in the state constitution. if the state constitution limits the legislature that's ok. if the state court interpreting the state constitution limits the legislature, that's ok. six justices agreed on that proposition. they dead -- they did leave one escape clause which we don't know what it means but it suggested there are potentially circumstances where courts aggrandize themselves, they take power away from the legislature in ways that are inappropriate.

that seems to be in extreme case where it looks like the state court is behaving lawless late and is not clear that would happen very often but it leaves the potential for some places were state courts can go too far. in north carolina, they said we are sending it back in the state courts can absolutely construe the state constitution to check the state legislature. host: what does that mean for north carolina and the map that was drawn? guest: the different issue that arose in the case was whether the case was moot. while the supreme court considered this case, there is parallel litigation happening in north carolina. the north carolina state supreme court had a midterm election and the justices on the state supreme court turned over in the state supreme court reversed itself on this decision and said we don't think we got it right

that first time and we are not sure the state constitution checks the state legislatures and were not sure the constitution prohibits excessive partisan gerrymandering. go back and you can draw the map you want to in the first place. even without the supreme court opinion, the state supreme court had already reversed this decision. this means the map the state legislature wanted to draw, that map, something like a 10-three republican/democratic split, is something that gets to remain in effect in the state legislature gets to do that. despite the fact the supreme court said yes you cannot check the state legislature, the state supreme court has already gone back to the state legislators a you can do the math if you want, we will not check you. a little bit confusing and convoluted but at the end of the day, status quo for the

supreme court of north carolina. host: we are talking about the decision on more v harper but also about the role of the federal election and the role of courts in federal elections. (202) 748-8001 is the line if you have a comment or question on the republican line. democratic line is (202) 748-8000 and for independents and all others, (202) 748-8002. you kind of alluded to this but the court is not yet done with this whole idea of the independent legislature theory? guest: it left the door open a crack. i think there is a lot of debate in the scholarly and legal community about what that crack means and what that open-door means. on the one hand, it's designed to be narrow. the notion that the supreme court of the federal court can step in and say state supreme court is asking flawlessly.

you justices are arrogating legislative power to yourself and that seems rare. it seems like an outlier situation. at the same time, we have seen cases in bush versus gore where there was an opinion and that case that resulted in two other justices saying in a related way that we think you are interpreting the ballot count and certification deadlines inappropriately. we think you've gone too far and strayed from what the legislature wants. you seen a couple of lower federal court judges at least in isolated cases say similar things. it's not clear going forward whether or not this will be that wide of an avenue for where this can succeed. they would say the state legislature did something wrong we think the state court has gone too far. i think there will be a lot of

litigation over that question the years ahead to figure out what that means but i also think the sense from the court is it's meant to be an extreme or outlier situation. host: one of the dissenting justices was justice clarence thomas and he wrote this in his dissent --

was it just an advisory opinion? guest: the majority didn't think so. there is this tension about what was happening in the case. while the supreme court took the case and granted jurisdiction and held onto it, the state of north carolina was proceeding in a related lawsuit in the state supreme court reversed it. it's a little awed to think that the state supreme court can take away a case from the united states supreme court. that they can somehow affect the jurisdiction of the united states supreme court. the supreme court is the majority and chief justice roberts said we hold onto this judgment that came from the previous case as a technical matter, we are still holding onto it and as a result, when we

affirm or reverse, it will affect that judgment in the case. the justice thomas dissent points out that the state supreme court has overturned his decision that was the basis for us hearing this case in the first place. on the one hand, you technically have a judgment but on the other hand, you have the reversal of the precedent that form the basis of the judgment. it's a fight between the majority and the dissent about whether to hear this case. i think there was a sense from the majority that they wanted to address the issue when we are not in the middle of a heat election. -- a heated election. we are deciding this well before any election is happening and well before these issues might come back to the surface in october and november of 2024. host: did the alignment of the decisions, did the justices, did their decision surprise you? guest: it was not the most

surprising after oral arguments. chief justice roberts was joined by justices sotomayor, kagan, kavanaugh and barrett and jackson. there was a lot of questions on that oral argument about how far the rules could go about whether or not the theory articulated by north carolina was consistent with the supreme court precedent. there was a lot of grappling with the boundaries of what this would look like. because there wasn't a lot of suggestions to overturn because the president goes back 100 years, i think there was more comfort from the majority to say this fits in with what we've been talking about for 100 years in terms of checking the state legislature. the defense said this was a dissension and there is a process of referendums and ballot initiatives and telling

the legislature here's what you can and can't do. that wasn't persuaded to the majority so it came out in oral argument and there was discussion about it but it wasn't terribly considered. host: we've got phone calls waiting but let's start with a tweet from steve -- guest: i did submit an amicus brief. it was on behalf of myself and nobody else. might amicus brief was not adopted by the court but it tried to take a different avenue than the courts approach. in this case, my amicus brief was to say that the other part of the elections clause you read earlier, not just the legislature gets a separate rule but congress gets to make or alter them. there is a federal statute that tells states how to go about redistricting. that federal statute includes the phrase "by law" that the

supreme court decades ago said this phrase by law includes state course that my not that -- that might need to be involved in the process.i try to avoid the harder questions about what legislature means and that congress has spoken and congress can indicate other rinses of government including the state courts to be involved. the court didn't adopt that but i was happy to file the amicus reef and be a part of that conversation. host: we will go first to albany, new york, bill on the republican line. caller: thank you, professor, i hope you can explain this to me. during the last election with biden and trump, it was my understanding that the states of georgia, pennsylvania, arizona and i believe one other states.

the legislature was the body -- the only constitutional body that could change the election laws during covid. what happened in these states and i think that's what president trump was going after, the attorneys general or governors, they changed the election laws as to counting ballots after the election day and mail-in ballots and things of that nature. would that make the current president unconstitutionally likely? the legislatures did not make those changes to the laws. guest: there are lots of pieces to that. in states like arizona, some of the rules change because of federal court orders. once a federal court, and changing the registration deadlines under federal law, we

are not dealing with these issues but some states like pennsylvania ready change the absentee ballot deadline, that court decision was put on hold by the united states of dream cords or none of those ballots are put into place. then you had other situations north carolina where there was a consent decree with a lawsuit in individual election administrator to save we will resolve this dispute and solve it going forward. it also happened in georgia with absentee ballots but these are in response to lawsuits. there are lawsuits challenging election laws. there is an agreement approved often by a federal court and their opportunities now after some change in states like north carolina to allow legislature for other parties to intervene in those lawsuits. in most of these states, the rule as understood now played

out in ways consistent with the united states constitution. there are certainly challenges to that to say that in pennsylvania, these election administrators were given discretion to do things that they should not have been able to do. that they treated ballots different from state to state but sometimes those are questions about whether the legislature has actually spoken or whether or not it has actually left it open for different counties to run the election a little differently which was the challenge in pennsylvania and not indicate -- and not implicated in what happened here. there were lots of moving pieces as related covid and changes were made by legislatures and some were made by election officials or pursuant to state law or by courts. in those cases, there was opportunity to challenge it in court and we saw at the end of

2020, parts of the pennsylvania ballot dispute. most of the cases were found not to have any basis in law. new york city, good morning on the democrat line. caller: u.s. constitutional provision does not say that state legislatures have jurisdiction over all aspects of elections, only with regard to three specific categories, time, place and manner. was there an argument made that the drawing of district boundaries is neither the time nor the place nor the manner of conducting an election and therefore the u.s. constitutional provision doesn't really apply to gerrymandering. guest: there were a couple of briefs in the case arguing things along these lines, particularly from secretary of state ashcroft in missouri, talking about how maybe this is something left to the 10th amendment.

it says the power is not given to the federal government and are left to the state so if the states have this authority, they can draw districts as they see fit. this argument has not been very popular over the last 200 years. you think about the way that elections are administered in the united states. it comes from a theory along time ago by the late, great justice story on the supreme court. he said before the union, states had no power over federal elections because there was no federal election. there were no federal election so how could they have power? whatever state power comes for federal elections, it must come from express grant of the united states constitution. the manner of conducting elections includes whether you want to hold an at-large election so if you get 10

representatives, you both for all 10 or you want to draw them into districts or you want to draw five districts with two representatives each. the long-standing argument has been that the manner includes redistricting and the power given to the states. there are some people who have pushed back against that and say it's not a part of this authority at all and is something the states hold apart from this provision of the constitution. host: robert calling from illinois on the independent line, go ahead. caller: an interesting thing connected to federal elections in the state of illinois. we are heavily a one-party state. there was a law passed that says let's say two candidates are running for president and the electoral college vote will go to whoever wins the election.

x wins the popular vote and he should get the electoral vote. the legislature in illinois -- let's say the popular vote in illinois goes with x and he should get the electoral votes but if it goes toy, should that go to y? can you see in federal court challenge on this? if anybody voted for x and y gets the electoral vote, it will disenfranchise people. guest: i will give it a step. this is something called the national popular vote that's been kicking around for about 20 years. illinois and many other states have passed similar laws saying if 270 electoral votes, the majority of the electoral college joins this compact, we

are all going to throw an error votes to the winner of the national popular vote. the argument is that we don't want to have state-by-state elections. we want to have a national popular vote. there are lots of reasons why think there will be litigation if you get to 270 electoral votes, right now it's at 195. many states have joined on. it has a little ways to go but i think there will be challenges of it takes effect to say what we do in illinois is for our electors and we are now allowed to look outside the state -- we are not allowed to look outside the state. it says registered voters in illinois get to vote for president and we treat our voters differently than other street -- than other states. we will see when that day comes. host: justice brett cabinet was part of the 6-3 majority in the decision.

in his concurring opinion, us understand that he says the supreme court today says simply the state courts do not have free reign and holds that only state courts may not transgress the ordinary bounds of judicial review3+. in other words, the supreme courhas recognized and articulated a general principle for federal reviews in state court decisions. in federal election in the future he says the courts should and will distort -- distill that general principle into a more specific standard such as when advanced by chief justice rehnquist. what is he talking about their on this principle advanced by justice rehnquist? guest: back in 2000 and bush versus gore, it was a contentious decision out of the florida supreme court and the united states supreme court. a majority of the court and a 5-4 decision and there was no formal author but we know from

recent papers that it was justice kennedy that took the lead in writing the opinion. that opinion relied on equal protection clauses of the constitution saying that votes were treated unequally. chief justice rehnquist wrote separately with scalia and thomas. he said we are worried about these circumstances where the state court goes too far. he said impermissibly distorted the legislatures scheme or transcends the appropriate limitations of statutory review which some of the justices even and dissenting opinions seemed to embrace. i think justice kavanaugh who was a lawyer involved in the bush versus gore litigation on behalf of republican clients is suggesting this is a good distillation of these principles. the majority by chief justice

roberts did not want to commit to anyone thought. they said we will not articulate that but if you arrogate yourself the power, you might go too far. that looks like we will not necessarily get there. justice kavanaugh would have said it looks something more like bush versus gore. i don't know if there are five votes for that. if the litigation continues, i don't know whether there would be agreement or consensus about that that's what he said just is that we look to that opinion in 2000 as a roadmap going forward preferred getting out -- for figuring out which way state courts go. host: republican line, good morning. caller: you talk about irrigating, democrats did that. they did everything they could to manipulate the last election and make sure biden one. you know it and i know it.

they talked about what was going on in georgia and they recounted the votes. they recounted the same phony votes three times instead of finding out if there was any phony ones. host: we are focusing on the moore v harper decision and they also took up a case regarding the election map in alabama. what was the outcome of that? guest: in allen versus milligan, there is a question about the voting rights act and whether or not alabama had an appropriate congressional map. you think about the federal elections in alabama drew a map that had one majority black district and a majority citizen age population and would translate into majority on election day. the voting rights act through an amendment passed by congress in

1982 as construed by the supreme court essentially required a majority/minority district as they are called where there is racially polarized voting and where we can draw a reasonably compact district for minority voters who coalesced to elect and have the opportunity to elect a candidate of their choice. many said we should have one majority/minority district and you need to droid based on some of the demographics of the state. there was a technical question about what the statute requires. the supreme court bite majority decision said yes, the sort of standard articulated by the plaintiffs here and the lower court was correct. it's likely that alabama will need to draw a second majority/minority district or something close to it. there are questions about what reasonably close to it looks like. that's currently being litigated

through another district. it had about 40% majority/minority population and challenges the lower order about whether it is implied for what the united states supreme court said. that's to be determined. host: tim is going on the independent line from arkansas, go ahead. caller: good morning. my understanding is that the case for north carolina was settled and nobody brought it to the court, it was john roberts who decided to make a decision and got to have his underlings to go with it. there is only so many words in the sentence in that paragraph. the legislature shall -- i didn't get to file an amicus brief like your guess but you talk about the lower words, they did not exist when the constitution was written. all of the swing states change

the rules, they screwed up the elections and now we've got the supreme court furthering election interference. wisconsin with a left-leaning courtney choose to disqualify the number one gop candidate from the ballot. i find this election interference very dangerous and i don't think john roberts should be in charge of the court. host: your thoughts? guest: when we're are dealing with these cases where we had a state court, many state courts are elected. they sometimes run expressly as republicans or democrats. sandra day o'connor was disturbed by the way states administer these judicial elections. there are questions about the courts. state courts hear way more cases than federal courts.

they are the ones principally responsible for enforcing a lot of state rules leading to elections that affect the federal election. there is no question the state courts we are seeing now and the turnover and was constant and turmoil and states over the years and turnover in the port about what it means going forward in the enforcement of the law. do we prefer cases brought in federal court or that sometimes comes and goes depending what we think of the federal and state courts. host: we are seeing reports from columbus, ohio -- what are your thoughts about that? guest: ohio passed an

anti-gerrymandering statute. it didn't have the clearest remedial solution. how are we supposed to remedy this? this has caused a lot of difficulty in the ohio state supreme court. they also turned over some of the personnel that made those decisions previously so the effort is to say lots of states have these independent redistricting commissions. let's not only have something like that and ohio but let's correct some of the things that have caused some of the turmoil litigation. given what the supreme court has said in previous cases, there is no question the people by initiative can step in and provide that guidance if a majority of the people in the state of ohio say so. host: the case we are talking about, many other supreme court cases, the oral argument for these cases available on our website at c-span.org in the

supreme court area. moore v harper is the hello, thank you for taking my call i will be quick. your guest failed to mention the north carolina the supreme court changed hands a republican got in and that is why it was reversed. on the electoral college she mentioned no republican would ascend to office as president since 1988 only because they have the electoral college. that makes them dictators or strongmen not a president. bush got in losing the popular vote, trump got in by losing 2.8 one million votes and he claimed close to getting it by losing 7 million votes.