No.

21-1271

In the Supreme Court of the United States

_____________
TIMOTHY K. MOORE, in his official capacity as Speaker
of the North Carolina House of Representatives, et al.
Petitioners,
v.
REBECCA HARPER, et al.
Respondents,
_____________
On Writ of Certiorari to the North Carolina
Supreme Court
_____________
BRIEF OF CITIZENS UNITED, CITIZENS
UNITED FOUNDATION, AND THE
PRESIDENTIAL COALITION AS AMICI
CURIAE IN SUPPORT OF PETITIONERS
_____________
GARY M. LAWKOWSKI MICHAEL BOOS
Counsel of Record DANIEL H. JORJANI*
Dhillon Law Group, Inc. Citizens United
2121 Eisenhower Avenue, Citizens United Foundation
Suite 402 The Presidential Coalition
Alexandria, VA 22314 1006 Pennsylvania Avenue, S.E.
703-965-0330 Washington, D.C. 20003
GLawkowski@DhillonLaw.com 202-547-5420
MichaelBoos@CitizensUnited.org
DanielJorjani@CitizensUnited.org
*Application for Admission
Pending
Counsel for amici curiae Citizens United, Citizens United
Foundation, and The Presidential Coalition
 i

TABLE OF CONTENTS
STATEMENT OF INTEREST ................................... 1

INTRODUCTION ....................................................... 2

SUMMARY OF THE ARGUMENT ........................... 4

ARGUMENT............................................................... 8

I. State Authority Over Federal Elections

Derives from the Constitution ................................ 8

II. The Text of the Constitution Assigns

Regulating the Manner of Elections to State
Legislatures, Not State Courts ............................... 9

A. The Term “Legislature” Was Commonly

Understood to Mean the Body that Exercised
Legislative Power ............................................... 10

B. The Framers Drew a Distinction Between

the “Legislature” and Other Branches of
State Government .............................................. 12

i. The Text of the Constitution

Distinguishes Between the “Legislature”
and Other Branches of State Government..... 12

ii. The History of the Constitution Confirms

that Distinguishing the “Legislature” from
the Other Branches of State Government
was a Deliberate Choice ................................. 16
 ii

C. Arizona Independent Redistricting

Commission Does Not Compel an Alternative
Result in this Case ............................................. 20

III. Redistricting is an Inherently Political

Act that the Framers Properly Assigned to the
Political Branches ................................................. 23

IV. The Shift of Election Cases to Federal

Courts Does Not Render this Interpretation
Un-Originalist ....................................................... 29

CONCLUSION ......................................................... 30
 iii

TABLE OF AUTHORITIES
Cases
Arizona State Legislature v. Arizona Indep.
Redistricting Comm’n,
576 U.S. 787 (2015) ....................................... passim
Baker v. Carr,
369 U.S. 186 (1962) ...................................27, 28, 29
Bush v. Palm Beach Cnty. Canvassing Bd.,
531 U.S. 70 (2000) .................................................. 8
Citizens United v. Fed. Election Comm’n,
558 U.S. 310 (2010) ................................................ 1
Colegrove v. Green,
328 U.S. 549 (1946) ...................................23, 27, 29
Colorado Gen. Assembly v. Salazar,
541 U.S. 1093 (2004) .............................................. 4
Cook v. Gralike,
531 U.S. 510 (2001) ............................................ 8, 9
Davis v. Bandemer,
478 U.S. 109 (1986) ........................................ 23, 24
Democratic Nat’l Comm. v. Wisconsin State
Legislature,
141 S. Ct. 28 (2020) .................................... 2, 10, 24
Fed. Election Comm’n v. Wisconsin Right to
Life, Inc.,
551 U.S. 449 (2007) ................................................ 9
Gaffney v. Cummings,
412 U.S. 735 (1973) .............................................. 24
Gomillion v. Lightfoot,
364 U.S. 339 (1960) ........................................ 28, 29
 iv

Harper v. Hall,
380 N.C. 317 (2022) ................................................ 3
Hawke v. Smith,
253 U.S. 221 (1920) ...................................10, 11, 16
Luther v. Borden,
48 U.S. 1 (1849) .................................................... 27
Marbury v. Madison,
5 U.S. 137 (1803) .................................................. 26
McPherson v. Blacker,
146 U.S. 1 (1892) .................................................... 8
Miller v. Johnson,
515 U.S. 900 (1995) .............................................. 24
Moore v. Circosta,
141 S. Ct. 46 (2020) .............................................. 22
Moore v. Harper,
142 S. Ct. 1089 (2022) .................................. 4, 9, 10
Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor,
142 S. Ct. 661 (2022) .............................................. 2
North Carolina League of Conservation Voters,
Inc. v. Hall,
Nos. 21 CVS 015426 & 21 CVS 500085, 2022 WL
2610499 (N.C. Super. Feb. 23, 2022) ...................... 3
North Carolina League of Conservation Voters,
Inc. v. Hall,
Nos. 21 CVS 015426 & 21 CVS 500085,
2022 WL 2610501 (N.C. Super. Feb. 16, 2022)....... 3
Republican Party of Pennsylvania v. Boockvar,
141 S. Ct. 1 (2020) .................................................. 7
 v

Republican Party of Pennsylvania v. Degraffenreid,

141 S. Ct. 732 (2021) .............................................. 8
Rucho v. Common Cause,
139 S. Ct. 2484 (2019) ......................... 24, 25, 27, 28
United States Term Limits, Inc. v. Thornton,
514 U.S. 779 (1995) ................................................ 8
Vieth v. Jubelirer,
541 U.S. 267 (2004) ........................................ 23, 25
Statutes
26 U.S.C. § 501(c)(3) ................................................... 1
26 U.S.C. § 501(c)(4) ................................................... 1
Constitutional Provisions
AZ Const. art. IV, pt. 1, § 1 ...................................... 22
NC Const. art. II, § 1 ................................................ 21
NC Const. art. IV, § 1 ............................................... 22
NC Const., art. IV, § 3 .............................................. 22
U.S. Articles Of Confederation, art. V ..................... 19
U.S. Const. amend. X ................................................. 4
U.S. Const. amend. XIV, § 2 ..................................... 14
U.S. Const. amend. XIV, § 3 ..................................... 14
U.S. Const. amend. XVII, cl. 1 ................................. 15
U.S. Const. amend. XVII, cl.2 .................................. 14
U.S. Const. art. I § 4, cl. 1 ........................................ 10
U.S. Const. art. I, § 2 cl. 1 ........................................ 15
U.S. Const. art. I, § 3 cl. 1 ........................................ 15
 vi

U.S. Const. art. I, § 3, cl. 2 ....................................... 13

U.S. Const. art. IV, § 4 ............................................. 13
U.S. Const. art. VI, cl. 3 ........................................... 13
Other Authorities
1 Debates on the Federal Constitution 146 (J.
Elliot ed. 1836) ...................................................... 16
1 Story § 627 ............................................................... 8
2 An American Dictionary of the English
Language (1828) .................................................... 11
2 Journals of the Continental Congress 1774-
1789 (Worthington C. Ford ed., Gov’t Prtg. Off.
1905) ...................................................................... 18
3 Colonial Records of North Carolina (W.
Saunders ed. 1886) ................................................ 25
4 Letters of Delegates to Congress, 1774-1789
(Paul H. Smith et al eds., Lib. Of Cong. 1979) ..... 18
5 Journals of the Continental Congress 1774-
1789 (Worthington C. Ford ed., Gov’t Prtg. Off.
1906) ...................................................................... 19
6 Journals of the Continental Congress 1774-
1789 (Worthington C. Ford ed., Gov’t Prtg. Off.
1906) ...................................................................... 19
Alexander Hamilton, Federalist 22 (Dec. 14,
1787) ...................................................................... 11
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts (2012) ......... 9, 12
 vii

Brief of Citizens United and Citizens United

Foundation as Amici Curiae in Support of
Respondent, Securities and Exchange
Commission v. Cochran, No. 21-1239 (U.S. Jul.
7, 2022) .................................................................... 1
Brief of Citizens United, Citizens United
Foundation, and The Presidential Coalition as
Amici Curiae in Support of Appellants and
Petitioners, Merrill, et al. v. Milligan, et al.,
Nos. 21-1086, 21-1087, 2022 WL 1432037 (U.S.
May 2, 2022) ............................................................ 1
Digest 32.69 pr. (Marcellus) ....................................... 9
G. Alan Tarr, Understanding State Constitutions
(1998) ..................................................................... 26
Hayward H. Smith, Revisiting the History of the
Independent State Legislature Doctrine, 53 St.
Mary’s L.J. 445 (2022) .................................... passim
M. Klarman, The Framers’ Coup: The Making of
the United States Constitution (2016) ................... 27
Michael T. Morley, The Intratextual Independent
“Legislature” and the Elections Clause, 109 Nw.
U. L. Rev. Online 131 (2015) ........................... 11, 15
Sketch of Articles of Confederation, National
Archives at Philadelphia ....................................... 17
Sylvia Snowiss, Judicial Review and the Law of
the Constitution (1990) .......................................... 26
 viii

Vikram David Amar and Akhil Reed Amar,

Eradicating Bush-League Arguments Root and
Branch: The Article II Independent-State-
Legislature Notion and Related Rubbish,
Supreme Court Review (2022) ........................ 23, 29
 1

STATEMENT OF INTEREST1

Citizens United and Citizens United

Foundation are dedicated to restoring government to
the people through a commitment to limited
government, federalism, individual liberty, and free
enterprise. Citizens United and Citizens United
Foundation regularly participate as litigants (e.g.,
Citizens United v. Fed. Election Comm’n, 558 U.S. 310
(2010)) and amici in important cases in which these
fundamental principles are at stake (See, e.g., Brief of
Citizens United and Citizens United Foundation as
Amici Curiae in Support of Respondent, Securities and
Exchange Commission v. Cochran, No. 21-1239 (U.S.
Jul. 7, 2022); Brief of Citizens United, Citizens United
Foundation, and The Presidential Coalition as Amici
Curiae in Support of Appellants and Petitioners,
Merrill, et al. v. Milligan, et al., Nos. 21-1086, 21-1087,
2022 WL 1432037 (U.S. May 2, 2022)).

Citizens United is a nonprofit social welfare

organization exempt from federal income tax under
Internal Revenue Code (“IRC”) section 501(c)(4).
Citizens United Foundation is a nonprofit educational
and legal organization exempt from federal income tax
under IRC section 501(c)(3). These organizations were
established to, among other things, participate in the
public policy process, including conducting research,
1 No party’s counsel authored this brief in whole or in part. No
party’s counsel or party contributed money that was intended to
fund preparing or submitting this brief. No person other than
amici curiae, its members, or its counsel contributed money that
was intended to fund preparing or submitting this brief. The
parties have either filed blanket consents to the filing of briefs of
amici curiae in this case or provided written consent to amici.
 2

and informing and educating the public on the proper

construction of state and federal constitutions, as well
as statutes related to the rights of citizens, and
questions related to human and civil rights secured by
law.

The Presidential Coalition, LLC is an IRC

section 527 political organization founded to educate
the American public on the value of having principled
leadership at all levels of government.

INTRODUCTION

“The central question we face today is: Who

decides?” Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor,
142 S. Ct. 661, 667 (2022) (Gorsuch, J., concurring).

“The Constitution provides that state

legislatures – not federal judges, not state judges, not
state governors, not other state officials – bear
primary responsibility for setting election rules. . . .
And the Constitution provides a second layer of
protection too” by authorizing Congress to serve as a
backstop. Democratic Nat’l Comm. v. Wisconsin State
Legislature, 141 S. Ct. 28, 29 (2020) (Gorsuch, J.,
concurring in denial of application to vacate stay)
(citations omitted).

Yet, in this case, the state courts have

functionally usurped the legislature’s authority by not
only purporting to invalidate the redistricting plans
developed by the General Assembly, but acting on
their own initiative to hire their own staff of purported
experts to develop their own redistricting plan and
imposing that plan on people of North Carolina by
 3

judicial fiat. See North Carolina League of

Conservation Voters, Inc. v. Hall, Nos. 21 CVS 015426
& 21 CVS 500085, 2022 WL 2610501, at *1 (N.C.
Super. Feb. 16, 2022) (determining “[a]fter a careful
and thorough consideration of each proposed
candidate, the Court will instead appoint three highly-
qualified candidates of its own selection as Special
Masters to assist the Court in this matter.”); North
Carolina League of Conservation Voters, Inc. v. Hall,
Nos. 21 CVS 015426 & 21 CVS 500085, 2022 WL
2610499, at *9-10 (N.C. Super. Feb. 23, 2022)
(rejecting the General Assembly’s Congressional
remedial districting plans and adopting the plans
drawn by the court’s “own selection” of special
masters). 2

“Like most provisions of the Constitution, the

Elections Clause reflected a compromise. . . . This
Court has no power to upset such a compromise simply
because we now think that it should have been struck
differently.” See Arizona State Legislature v. Arizona
Independent Redistricting Comm’n, 576 U.S. 787, 837
(2015) (Roberts, C.J., dissenting). “[I]f the language of

2 In striking down the General Assembly’s redistricting map, the

North Carolina Supreme Court reassured “[t]his case does not
ask us to remove all discretion from the redistricting process”
because “[t]he General Assembly will still be required to make
choices regarding how to reapportion state legislative and
congressional districts in accordance with traditional neutral
districting criteria that will require legislators to exercise their
judgment.” Harper v. Hall, 380 N.C. 317, 364 (2022). Subsequent
events belied these claims. The Superior Court effectively cut the
General Assembly out of the Congressional redistricting process
by choosing and hiring its own outside experts and imposing its
own redistricting map.
 4

the Elections Clause is taken seriously, there must be

some limit on the authority of state courts to
countermand actions taken by state legislatures when
they are prescribing rules for the conduct of federal
elections.” Moore v. Harper, 142 S. Ct. 1089, 1091
(2022) (Alito, J., dissenting from denial of application
for stay); see also Colorado Gen. Assembly v. Salazar,
541 U.S. 1093, 1095 (2004) (Rehnquist, C.J.,
dissenting) (“[T]o be consistent with Article I, § 4,
there must be some limit on the State’s ability to
define lawmaking by excluding the legislature itself in
favor of the courts.”). If there is any limit to the
authority of State courts to countermand the will of
State legislatures in redistricting for federal elections,
it should apply here.

Based on the text, history, and purpose of the

Elections Clause, the state court’s actions in this case
are an ultra vires intrusion upon the authority
constitutionally committed to the State Legislature.
Accordingly, the decision of the court below should be
reversed.

SUMMARY OF THE ARGUMENT

This case is about who gets to decide how

members of Congress are elected: state courts or state
legislatures.

The election of federal officeholders is governed

by the federal constitution. As sovereign entities, the
States had substantial powers prior to the adoption of
the Constitution and retained much of this authority,
even after the Constitution was adopted. See
generally U.S. Const. amend. X. However, the election
 5

of federal officers was not one of the States’ inherent

powers. The existence of federal offices derives from
the Constitution, and it is only through the delegation
of authority in the Constitution that states (or the
organs thereof) have the power to regulate federal
elections. Accordingly, state courts do not have an
inherent power to opine on federal elections as they
would over other subject matter, such as limitations
on the general police power.

In delegating authority to regulate federal

elections, the Constitution explicitly commits
determinations about the “time, place, and manner” of
federal elections to “the legislature” of the state. This
textual commitment is significant. First, the term
“legislature” was a commonly understood term at the
time of the Framers, and at minimum meant the body
that exercises legislative authority in the State.
Second, a review of the text of the Constitution shows
that the Framers drew deliberate and meaningful
distinctions between the “legislature” and other
branches of state government, such as the judicial or
executive branch. Third, the significance of these
distinctions is confirmed by the history of the
Constitution and Articles of Confederation, which
both reflect careful consideration and deliberate
choices to assign authority to the “legislature,” rather
than the State as a whole or another branch of the
government thereof. Finally, the Court’s decision in
Arizona Independent Redistricting Commission, 576
U.S. 787, does not compel a different result; however
broadly the “legislature” is defined, it does not include
the state courts of North Carolina.
 6

The process of redistricting is an inherently

political process that the Framers properly assigned to
the political branches of government. Some have
sought to characterize this case as a conflict between
a substantive State constitutional provision and a
State legislature. The issue is better framed as a
question of who gets to decide? Who gets to decide
initially what the best map is; who gets to decide if a
violation of the state constitution has occurred; and, if
so, who gets to decide the proper remedy? The
Framers were far more comfortable than many today
with the idea that not every provision of the
Constitution would have a judicial remedy. Some
provisions would need to be enforced by the political
branches. To that end, the Framers assigned the task
of regulating the time, place, and manner of elections
to the governing institutions with the greatest
institutional competence to handle an inherently
political task, the state and national legislatures. The
proliferation of election litigation that has become
common place today is a comparatively modern
innovation and should not color interpretations of the
original meaning of the Elections Clause.

Finally, the central role of federal courts in

election disputes today, particularly relative to state
institutions, does not invalidate a textualist
interpretation of the Elections Clause on originalist
grounds. The current role of federal courts in election
disputes derives its authority from post-ratification
amendments, particularly the Fourteenth
Amendment, and largely came into its own through
shifts in the Court’s jurisprudential approach to
districting cases in the middle of the Twentieth
 7

Century. Thus, it is not properly attributable to a

textualist interpretation of the Elections Clause. If
interpretating the Elections Clause to limit the role of
state courts elevates the role of federal courts vis-à-vis
the States, it is a consequence of intervening events,
not the original meaning of the Elections Clause.

What the state courts have done in this case is

truly extraordinary. They have not only rejected the
map approved by the General Assembly, they have
also taken it upon themselves to hire their own team
of experts, drawn their own map, disregarded the
General Assembly’s input, and purported to impose
their map on the State of North Carolina by judicial
fiat. “The provisions of the Federal Constitution
conferring on state legislatures, not state courts, the
authority to make rules governing federal elections
would be meaningless if a state court could override
the rules adopted by the state legislature simply by
claiming that a state constitutional provision gave the
courts the authority to make whatever rules it thought
appropriate for the conduct of a fair election.”
Republican Party of Pennsylvania v. Boockvar, 141 S.
Ct. 1, 2 (2020) (Alito, J., Statement of Justice). If the
word “legislature” in the Elections Clause is to have
any practical meaning, the decision of the state court
must be reversed.
 8

ARGUMENT

I. State Authority Over Federal Elections

Derives from the Constitution

“For more than a century, this Court has

recognized that the Constitution ‘operat[es] as a
limitation upon the State in respect of any attempt to
circumscribe the legislative power’ to regulate federal
elections.” Republican Party of Pennsylvania v.
Degraffenreid, 141 S. Ct. 732, 733 (2021) (Thomas, J.,
dissenting from the denial of certiorari) (quoting
McPherson v. Blacker, 146 U.S. 1, 25 (1892)). This is
because the ability to regulate elections for federal
office is a power that was delegated to the States
under the Constitution; it is not a power reserved to
the States to be exercised in the any manner they see
fit. See, e.g., Cook v. Gralike, 531 U.S. 510 (2001);
United States Term Limits, Inc. v. Thornton, 514 U.S.
779 (1995).

“[A]s the Framers recognized, electing

representatives to the National Legislature was a new
right, arising from the Constitution itself.” United
States Term Limits, Inc., 514 U.S. at 805. “It is no
original prerogative of state power to appoint a
representative, a senator, or a president for the
union.” Cook, 531 U.S. at 522 (quoting 1 Story § 627);
see also generally Bush v. Palm Beach Cnty.
Canvassing Bd., 531 U.S. 70, 76 (2000) (“[I]n the case
of a law enacted by a state legislature applicable not
only to elections to state offices, but also to the
selection of Presidential electors, the legislature is not
acting solely under the authority given it by the people
 9

of the State, but by virtue of a direct grant of

authority” under the federal Constitution).
Accordingly, “[t]his case is governed . . . by the Federal
Constitution. The States do not . . . ‘retain autonomy
to establish their own governmental processes’ . . . if
those ‘processes’ violate the United States
Constitution.” Arizona Indep. Redistricting Comm’n,
576 U.S. at 827 (Roberts, C.J., dissenting).

“By process of elimination, the States may regulate

the incidents of [congressional] elections . . . only
within the exclusive delegation of power under the
Elections Clause.” Cook, 531 U.S. at523. Thus, “[t]he
question presented is one of federal not state law
because the state legislature, in promulgating rules
for congressional elections, acts pursuant to a
constitutional mandate under the Elections Clause.”
Moore, 142 S. Ct. at 1091 (Alito, J., dissenting from the
denial of application for stay).

II. The Text of the Constitution Assigns

Regulating the Manner of Elections to
State Legislatures, Not State Courts

“The Framers’ actual words put these cases in

proper perspective.” Fed. Election Comm’n v.
Wisconsin Right to Life, Inc., 551 U.S. 449, 482 (2007);
see also Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts, at 56 (2012)
(“As Justinian’s Digest put it: A verbis legis non est
recedendum (‘Do not depart from the words of the
law’).” (quoting Digest 32.69 pr. (Marcellus))).

The Elections Clause of the Constitution states:

“The Times, Places and Manner of holding Elections
 10

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.” U.S. Const. art. I § 4, cl. 1 (emphasis
added). This “language specifies a particular organ of
state government, and [the Court] must take that
language seriously.” Moore, 142 S. Ct. at 1090 (Alito,
J., dissenting from the denial of application for stay).

A. The Term “Legislature” Was Commonly

Understood to Mean the Body that
Exercised Legislative Power

In Arizona Independent Redistricting

Commission, the Chief Justice laid out the how the
text and history of the Constitution confirms that
“legislature” means just that, the body in the state
that exercises legislative power. See Arizona Indep.
Redistricting Comm’n, 576 U.S. at 824 (Roberts, C.J.,
dissenting). The text of the Constitution, as well as
the original public meaning of the term “legislature,”
confirm that the Elections Clause means exactly what
it says: “state legislatures – not federal judges, not
state judges, not state governors, not other state
officials – bear primary responsibility for setting
election rules.” Democratic Nat’l Comm., 141 S. Ct. at
29 (Gorsuch, J., concurring in denial of application to
vacate stay).

The term “legislature” “was not a term of

uncertain meaning when incorporated into the
Constitution.” Hawke v. Smith, 253 U.S. 221, 227
(1920). Rather, “[a] Legislature was then the
 11

representative body which made the laws of the

people.” Id. To wit, “Noah Webster’s heralded
American Dictionary of the English language defines
‘legislature’ as ‘[t]he body of men in a state or
kingdom, invested with power to make and repeal
laws” and notes that “[t]he legislatures of most of the
States in America . . . consist of two houses or
branches.” Arizona Indep. Redistricting Comm’n, 576
U.S. at 828 (Roberts, C.J., dissenting) (quoting 2 An
American Dictionary of the English Language (1828)).
State courts generally are not the body invested with
power to make or repeal laws, nor do they typically
consist of “two houses.”

This view is confirmed by the fact that “every

state constitution from the Founding Era that used
the term legislature defined it as a distinct
multimember entity comprised of representatives.”
Id. (quoting Michael T. Morley, The Intratextual
Independent “Legislature” and the Elections Clause,
109 Nw. U. L. Rev. Online 131, 147, n. 101 (2015)).

Moreover, this differentiation between

branches of State governments is reflected in other
contemporary writings. For example, Federalist 22
states “[t]he treaties of the United States, under the
present Constitution, are liable to the infractions of
thirteen different legislatures, and as many different
courts of final jurisdiction, acting under the authority
of those legislatures.” Alexander Hamilton, Federalist
22 (Dec. 14, 1787), available at
https://guides.loc.gov/federalist-papers/text-21-30#s-
lg-box-wrapper-25493335, (emphasis added).
 12

B. The Framers Drew a Distinction Between

the “Legislature” and Other Branches of State
Government

i. The Text of the Constitution

Distinguishes Between the
“Legislature” and Other Branches of
State Government

For the Framers, the term “legislature” was not

synonymous with “State;” it meant then, as it means
now, the legislative branch of the State government,
distinct from the other branches of State government.

It is a general contextual canon of construction

that “[a] word or phrase is presumed to bear the same
meaning throughout a text” while “a material
variation in terms suggests a variation in meaning.”
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts, at 170 (2012). “When
seeking to discern the meaning of a word in the
Constitution, there is no better dictionary than the
rest of the Constitution itself.” Arizona Indep.
Redistricting Comm’n, 576 U.S. at 829 (Roberts, C.J.,
dissenting).

“The Constitution includes seventeen

provisions referring to a State’s ‘Legislature.’ . . .
Every one of those references is consistent with the
understanding of a legislature as a representative
body,” while “many of them are only consistent with
an institutional legislature.” Id. (citations omitted).
 13

For example, six provisions explicitly

distinguish the State legislature from either the State
executive or judiciary:

• “ . . . if Vacancies happen by Resignation, or

otherwise, during the Recess of the Legislature
of any State, the Executive thereof may make
temporary Appointments until the next
Meeting of the Legislature, which shall then fill
such Vacancies.” U.S. Const. art. I, § 3, cl. 2
(emphasis added);

• “The United States shall guarantee to every

State in this Union a Republican Form of
Government, and shall protect each of them
against Invasion; and on Application of the
Legislature, or of the Executive (when the
Legislature cannot be convened), against
domestic violence.” U.S. Const. art. IV, § 4
(emphasis added);

• “The Senators and Representatives before

mentioned, and the Members of the several
State Legislatures, and all executive and
judicial Officers, both of the United States and
of the Several States shall be bound by Oath or
Affirmation, to support this Constitution . . . .”
U.S. Const. art. VI, cl. 3 (emphasis added);

• “But when the right to vote at any election for

the choice of electors for President and Vice
President of the United States, Representatives
in Congress, the Executive and Judicial officers
of a State, or the members of the Legislature
thereof, is denied to any of the male inhabitants
 14

of such State . . .” U.S. Const. amend. XIV, § 2

(emphasis added);

• “No person shall be a Senator or Representative

in Congress, or elector of President and Vice
President, or hold any office, civil or military,
under the United States, or under any State,
who, having previously taken an oath, as a
member of Congress, or as an office of the
United States, or as a member of the State
Legislature, or as an executive or judicial officer
of any State, to support the Constitution of the
United States, shall have engaged in
insurrection or rebellion against the same, or
given aid or comfort to the enemies thereof.”
U.S. Const. amend. XIV, § 3 (emphasis added);

• “When vacancies happen in the representation

of any such State in the Senate, the executive
authority of such State shall issue writs of
election to fill such vacancies; Provided,
[emphasis in original] That the legislature of
any State may empower the executive thereof
to make temporary appointments until the
people fill the vacancies by election as the
legislature may direct.” U.S. Const. amend.
XVII, cl.2 (emphasis added).

“This juxtaposition of different branches suggests

that, just as references to a state’s executive are best
construed as referring to its governor, references to a
state’s legislative branch are best construed as
referring to its main lawmaking body comprised of
elected representatives.” Morely, The Intratextual
 15

Independent ‘Legislature’ and the Elections Clause,

109 Nw. U. L. Rev. Online at 140 (2015). .

An additional two clauses refer to “branches” of

the State legislature, which only make sense as a
reference to an institutional legislative body. See U.S.
Const. art. I, § 2 cl. 1 (“The House of Representatives
shall be composed of Members chosen every second
Year by the People of the several States, and the
Electors in each State shall have the Qualifications
requisite for Electors of the most numerous Branch of
the State Legislature.” (emphasis added)); U.S. Const.
amend. XVII, cl. 1 (“The electors in each State shall
have the qualifications requisite for electors of the
most numerous branch of the State legislatures.”
(emphasis added); see also Arizona Indep.
Redistricting Comm’n, 576 U.S. at 830 (Roberts, C.J.,
dissenting) (noting that Article I, section 2, clause 1’s
“reference to a ‘Branch of the State Legislature’ can
only be referring to an institutional body . . . .”).

Finally, there is the specific example of the

Seventeenth Amendment and the direct election of
U.S. Senators. Article I, section 3, clause 1 reads “The
Senate of the United States shall be composed of two
Senators from each State, chosen by the Legislature
thereof, for six Years; and each Senator shall have one
vote.” U.S. Const. art. I, § 3 cl. 1. As the Chief Justice
has noted, reading “Legislature” in this clause as
anything other than the institutional branch of state
government makes the proponents of the Seventeenth
Amendment “chumps” and “renders the Seventeenth
Amendment [providing for the direct election of U.S.
Senators] an 86-year waste of time.” Arizona Indep.
 16

Redistricting Comm’n, 576 U.S. at 825, 832 (Roberts,

C.J., dissenting); see also Hawke, 253 U.S. at 228 (“It
was never suggested, so far as we are aware, that the
purpose of making the office of Senator elective by the
people could be accomplished by a referendum vote.
The necessity of the amendment to accomplish the
purpose of popular election is shown in the adoption of
the amendment.”).

ii. The History of the Constitution

Confirms that Distinguishing the
“Legislature” from the Other
Branches of State Government was a
Deliberate Choice

The history of the Constitution confirms that

the Framers made a deliberate choice to distinguish
the “legislature” from the other branches of state
government and from the “State” more broadly.

As the Chief Justice has observed, “[t]he first

known draft of the [Elections] Clause to appear at the
Constitutional Convention provided that ‘Each state
shall prescribe the time and manner of holding
elections.’” Arizona Indep. Redistricting Comm’n, 576
U.S. at 836 (Roberts, C.J., dissenting) (quoting 1
Debates on the Federal Constitution 146 (J. Elliot ed.
1836)). This “insertion of ‘the legislature’ indicates
that the Framers thought carefully about which entity
within the State was to perform congressional
districting.” Id.

The history of the development and adoption of

the Articles of Confederation further confirm that this
allocation of authority was the product of careful
 17

deliberation. As scholars have noted, “[t]he

‘legislature’ language adopted by the Framers for the
Elector Appointment and Elections Clauses closely
resembles the ‘legislature’ language of Article V of the
Articles of Confederation.” Hayward H. Smith,
Revisiting the History of the Independent State
Legislature Doctrine, 53 St. Mary’s L.J. 445, 481
(2022) (citations omitted). “Given the textual
similarities, the Framers’ decision to use the
‘legislature’ language again in the new Constitution
should be viewed in light of their prior experience
under the Articles.” Id. at 482 (citations omitted).

In preparing the Articles of Confederation, the

Framers confronted the same problem that the
Elections Clause is designed to address: how to select
members of the national legislature. In 1775,
Benjamin Franklin submitted a “Sketch of Articles of
Confederation” to the Continental Congress. See
Sketch of Articles of Confederation, National Archives
at Philadelphia,
https://www.archives.gov/philadelphia/exhibits/frankl
in/articles.html (Accessed Aug. 26, 2022). This
document served as the “framework” for John
Dickinson, who is generally believed to have drafted
much of the Articles of Confederation, and the
committee that submitted the final version of the
Articles of Confederation. Id.; see also Smith,
Revisiting the History of the Independent State
Legislature Doctrine, 53 St. Mary’s L.J. at 465-66
(2022). Franklin proposed that delegates to the
“General Congress” be elected “at such Time and Place
as shall be agreed on in [] the next preceding
Congress.” Id. at 466 (quoting 2 Journals of the
 18

Continental Congress 1774-1789, at 196 (Worthington

C. Ford ed., Gov’t Prtg. Off. 1905)).

The first draft of Dickinson in the summer of

1776 built on Franklin’s framework, but provided that
instead of being appointed at a time and place set by
Congress, delegates would be “Annually appointed by
Each Colony.” Id. at 466 (quoting 4 Letters of
Delegates to Congress, 1774-1789, at 252 (Paul H.
Smith et al eds., Lib. Of Cong. 1979)). It further
granted “a power reserved in Each Colony to
supersede the Deligates [sic] thereof at any time
within the year and to send new Deligates [sic] in their
Stead for the Remainer of the year.” Id. at 467.

The next draft prepared by Dickinson shifted to

something more familiar to modern readers, providing
“Delegates shall be annually appointed by Legislature
of each Colony or such Branch thereof as the Colony
shall authorize for that purpose” with “a Power
reserved to those who appointed the said Delegates, to
supersede them or any of them, at any Time within
the Year, and to send new Delegates in their stead for
the Remainder of the Year.” Id. at 467 (quoting 4
Letters of Delegates to Congress, 1774-1789, at 241
(Paul H. Smith et al eds., Lib. Of Cong. 1979)).

The third (and final) draft prepared by

Dickinson before the draft Articles were read to
Congress provided “Delegates should be annually
appointed in such Manner as the Legislature of each
Colony shall direct,” with “a Power reserved to those
who appointed the said Delegates, respectively to recal
[sic] them or any of them at any time within the year,
 19

and to send new Delegates in their stead for the

Remainer of the Year.” Id. at 468 (quoting 5 Journals
of the Continental Congress 1774-1789, at 549-50
(Worthington C. Ford ed., Gov’t Prtg. Off. 1906)).

During debate, Congress made two additional

non-substantive changes to Dickinson’s draft: “First,
‘should be annually appointed’ was changed to ‘shall
be annually appointed.’ Second, the power to ‘recal
[sic]’ delegates was now reserved ‘to each State,’ as
opposed to ‘those who appointed the said Delegates.’”
Id. at 469 (quoting 5 Journals of the Continental
Congress 1774-1789, at 680 (Worthington C. Ford ed.,
Gov’t Prtg. Off. 1906)). This later change was
intentional and specifically meant to draw a
distinction between the “legislature” and the “State”
writ large: “According to John Adams’ notes of the
debates on July 26, 1776, the second change occurred
after Francis Hopkinson of New Jersey moved ‘that
the power of recalling delegates be reserved to the
State, not to the Assembly, because that may be
changed.’” Id. at 469 (quoting 6 Journals of the
Continental Congress 1774-1789, at 1077
(Worthington C. Ford ed., Gov’t Prtg. Off. 1906)).

The end result was that, under the Articles of

Confederation, “delegates [to Congress] shall be
annually appointed in such manner as the legislature
of each state shall direct.” U.S. Articles Of
Confederation, art. V.

The Framers experience drafting and living

under the Articles of Confederation show that
reference to the “legislature” in the Elections Clause
 20

is neither a quirk of history nor a shoddy shorthand

for referring to the State as a political entity. The
drafters of the Articles of Confederation took the
distinction between assigning powers and
responsibilities to the “legislature” versus the “State”
seriously and, as John Adams’ notes suggest, made
specific changes to the language of the Articles of
Confederation to effectuate their preferences in this
regard.

Based on the temporal proximity, textual

similarity, and history of the Elections Clause itself, it
is clear that there is no hidden meaning in the
Elections Clause. When the Framers used the word
“legislature,” they meant the legislature. They did not
mean state courts.

C. Arizona Independent Redistricting

Commission Does Not Compel an
Alternative Result in this Case

For the reasons set forth in the Chief Justice’s

dissent, amici believe that Arizona Independent
Redistricting Commission was wrongly decided.
Nevertheless, it is not necessary to revisit that
decision to resolve this case: however broadly the term
“legislature” is defined, it does not include the state
courts of North Carolina.

In Arizona Independent Redistricting

Commission, the Court held that the creation of an
“Independent Redistricting Commission” by ballot
initiative to create maps for Congressional elections
did not violate the Elections Clause. In doing so, the
Court acknowledged that redistricting is a “legislative
 21

function.” See, e.g., Arizona Indep. Redistricting

Comm’n, 576 U.S. at 808. It further concluded that,
under Arizona law, the people of the State were duly
authorized to perform legislative functions. See, id.
at 795, 796 (“[T]he Arizona Constitution ‘establishes
the electorate [of Arizona] as a coordinate source of
legislation’ on equal footing with the representative
legislative body. . . . ‘General references to the power
of the “legislature” in the Arizona Constitution
‘include the people’s right (specified in Article IV, part
1) to bypass their elected representatives and make
laws directly through initiative.’” (citations omitted)).

Put differently, the Court acknowledged that

the Elections Clause assigns redistricting exclusively
to the “legislature,” but concluded that under State
law, the entire electorate of Arizona was part of the
“legislature” because it was authorized to exercise
legislative power.

Nothing in the Court’s syllogism is contrary to

Petition’s claims in this case. State courts are
generally not “legislatures;” while there may be some
state-specific exceptions, unlike the electorate of
Arizona, they generally do not perform “legislative
functions.”

This is particularly true in North Carolina.

Unlike the Constitution of Arizona, the Constitution
of North Carolina vests the legislative power of the
State in the General Assembly. Compare NC Const.
art. II, § 1 (“The legislative power of the State shall be
vested in the General Assembly, which shall consist of
a Senate and a House of Representatives.”) with AZ
 22

Const. art. IV, pt. 1, § 1 (“The legislative authority of

the state shall be vested in the legislature, consisting
of a senate and a house of representatives, but the
people reserve the power to propose laws and
amendments to the constitution and to enact or reject
such laws and amendments at the polls,
independently of the legislature; and they also
reserve, for use at their own option, the power to
approve or reject at the polls any act, or item, section,
or part of any act, of the legislature.”); see also Moore
v. Circosta, 141 S. Ct. 46, 47 (2020) (Gorsuch, J.,
dissenting from denial of application for injunctive
relief) (“Everyone agrees . . . that the North Carolina
Constitution expressly vests all legislative power in
the General Assembly.”).

Moreover, like the people of Arizona, the people

of North Carolina knew how to divide authority
between branches of government when they so choose.
To wit, the “judicial power of the State” is generally
vested in the state courts, except that “[t]he General
Assembly may vest in administrative agencies
established pursuant to law such judicial powers as
may be reasonably necessary as an incident to the
accomplishment of the purposes for which the
agencies were created.” NC Const. art. IV, §§ 1, 3.
They did not do so for the legislative power.

Regardless of whether the people of a state are

part of the “legislature” for purposes of the Elections
Clause, the state courts, particularly in North
Carolina, are not. It is not necessary to revisit Arizona
Independent Redistricting Commission to resolve this
 23

case: there is only one state “legislature” in North

Carolina and it is the General Assembly.

III. Redistricting is an Inherently Political

Act that the Framers Properly Assigned
to the Political Branches

Many critics of Petitioners’ position have sought

to frame the issue as one of whether state legislatures
are bound by state constitutions when engaged in
congressional districting. See, e.g., Vikram David
Amar and Akhil Reed Amar, Eradicating Bush-
League Arguments Root and Branch: The Article II
Independent-State-Legislature Notion and Related
Rubbish, Supreme Court Review (2022),
https://www.journals.uchicago.edu/doi/abs/10.1086/72
0128; Smith, Revisiting the History of the Independent
State Legislature Doctrine, 53 St. Mary’s L.J. 445
(2022). This framing misstates the question. “The
issue we have discussed is not whether severe
partisan gerrymanders violate the Constitution, but
whether it is for the courts to say when a violation has
occurred, and to design a remedy.” Vieth v. Jubelirer,
541 U.S. 267, 292 (2004).

Redistricting is an inherently political process.

To wit, “[t]he one stark fact that emerges from a study
of the history of Congressional apportionment is its
embroilment in politics, in the sense of party contests
and party interests.” Colegrove v. Green, 328 U.S. 549,
554 (1946); see also Vieth, 541 U.S. at 285 (noting
“unsurprisingly [districting] turns out to be root-and-
branch a matter of politics.”); Davis v. Bandemer, 478
U.S. 109, 145 (1986) (O’Connor, J., concurring in
 24

judgment) (“[T]he legislative business of

apportionment is fundamentally a political affair, and
challenges to the manner in which an apportionment
has been carried out-by the very parties that are
responsible for this process-present a political
question in the truest sense of the term.”). This is
because “[t]he reality is that districting inevitably has
and is intended to have substantial political
consequences,” Gaffney v. Cummings, 412 U.S. 735,
753 (1973), and “in most cases will implicate a political
calculus in which various interests compete for
recognition.” Miller v. Johnson, 515 U.S. 900, 914
(1995).

Given the political nature of the redistricting

process, “the Framers’ decision to entrust districting
to political entities,” Rucho v. Common Cause, 139 S.
Ct. 2484, 2497 (2019), makes sense. “[A]s a Justice
with extensive experience in state and local politics”
noted, Id. at 2498, the courts are the wrong place to
resolve these types of highly political questions: “[t]o
turn these matters over to the federal judiciary is to
inject the courts into the most heated partisan issues.”
Davis, 478 U.S. at 145 (O’Conner, J., concurring in
judgment). “Legislators can be held accountable by
the people for the rules they write or fail to write[,] . .
. make policy and bring to bear the collective wisdom
of the whole people when they do, . . . enjoy far greater
resources for research and factfinding[,] . . . [and] must
compromise to achieve the broad social consensus
necessary to enact new laws . . . .” Democratic Nat’l
Comm.,141 S. Ct. at 29 (Gorsuch, J., concurring in
denial of application to vacate stay). State courts
generally cannot and do not. Given their institutional
 25

competencies, the Framers’ decision to vest regulating

the time, place, and manner of federal elections in
legislatures, rather than state courts, makes
tremendous sense.

This does not mean that the Framers were

oblivious to the potential problems that might arise if
the legislatures engaging in redistricting. See Rucho,
139 S. Ct. at 2496 (“The Framers were aware of
electoral districting problems . . . .”).

As the Court has observed, “[p]olitical

gerrymanders are not new to the American scene. One
scholar traces them back to the Colony of
Pennsylvania at the beginning of the 18th century,
where several counties conspired to minimize the
political power of the city of Philadelphia by refusing
to allow it to merge or expand into surrounding
jurisdictions, and denying it additional
representatives.” Vieth, 541 U.S. at 274. For example,
in 1732 several officials reported that the Governor of
North Carolina “had proceeded to ‘divide old Precincts
established by Law, & to enact new Ones in Places’” in
order to either “‘endeavour by his means to get a
Majority of his creatures in the Lower House’ or to
disrupt the assembly’s proceedings.” Id. at 274
(quoting 3 Colonial Records of North Carolina 380-81
(W. Saunders ed. 1886)).

Likely aware of these potential issues (among

others), the Framers “considered what to do about”
districting concerns. Rucho, 139 S. Ct. at 2496.

Unlike today, the Framers were far more

comfortable with the idea that not every problem had
 26

a judicial solution, and that certain constitutional

questions would be decided by the political branches
of government. As scholars have noted, “[a]t the time
of the Founding, the court litigation that we see today
concerning election design, such as redistricting, was
just not a thing.” Smith, Revisiting the History of the
Independent State Legislature Doctrine, 53 St. Mary’s
L.J. at 501-02 (2022).

This was in part because “[t]he notion that

judges could invalidate all governmental actions
inconsistent with their interpretation of the
constitution . . . would have been considered far
beyond the scope of legitimate judicial power.” Id. at
503 n. 253 (quoting G. Alan Tarr, Understanding
State Constitutions, at 72 (1998)); see also generally
Sylvia Snowiss, Judicial Review and the Law of the
Constitution, at 1 (1990) (Asserting that from
Independence through Federalist 78 “judicial
authority over unconstitutional acts was often
claimed, but its legitimacy was just as often denied.”).
Tellingly, even as the Court asserted “[i]t is
emphatically the province and duty of the judicial
department to say what the law is,” it recognized that
“[q]uestions, in their nature political, or which are, by
the constitution and laws, submitted to the executive,
can never be made in this Court.” Marbury v.
Madison, 5 U.S. 137, 170, 177 (1803).

In light of the institutional competencies, when

considering what to do about redistricting challenges,
the Framers looked to another political institution, the
national legislature, as the primary check on the state
legislatures. As the Court has noted, “[w]hether to
 27

give that supervisory authority to the National

Government was debated at the Constitutional
Convention.” Rucho, 139 S. Ct. at 2495. “During the
subsequent fight for ratification, the provision
remained a subject of debate,” with Federalists
defending the Elections Clause in part on the grounds
that “the revisionary power was necessary to counter
state legislatures set on undermining fair
representation, including through
malapportionment.” Id. (citing M. Klarman, The
Framers’ Coup: The Making of the United States
Constitution, at 340-42 (2016)).

The result is that “[t]he Constitution has many

commands that are not enforceable by courts because
they clearly fall outside the conditions and purposes
that circumscribe judicial action” and instead “left the
performance of many duties in our governmental
scheme to depend on the fidelity of the executive and
legislative action and, ultimately, on the vigilance of
the people in exercising their political rights.”
Colegrove, 328 U.S. at 556. For example, the Court
has consistently held that the Guaranty Clause, which
formed the basis of many election challenges prior to
the mid-Twentieth Century, is non-justiciable. See,
e.g., Baker v. Carr, 369 U.S. 186, 218-26 (1962)
(describing the history of the non-justiciability of the
Guaranty Clause). The reason is not that the
Guaranty Clause is unimportant. Rather, it is
because “[u]nder this article of the Constitution it
rests with Congress to decide what government is the
established one in a State. . . . [T]he right to decide is
placed there, and not in the courts.” Luther v. Borden,
48 U.S. 1, 42 (1849).
 28

With limited exceptions, such as challenges

under the Federal constitution such as “one man, one
vote” challenges, see Baker v. Carr, 369 U.S. 186
(1962), and challenges based on race, see Gomillion v.
Lightfoot, 364 U.S. 339 (1960), the Court has
recognized that redistricting presents political
questions that are properly resolved by the political
branches of government. See, e.g., Rucho, 139 S. Ct.
at 2495. Just as the federal courts “do[] not intervene”
when “the Constitution assigns a particular function
wholly and indivisibly to another department,” Baker,
369 U.S. at 246 (Douglas, J., concurring), the state
courts lack authority to intervene where there
Elections Clause has assigned determining the time,
place, and manner of elections to another department,
the state legislature.

The question in this case is “who decides?” Is it

the state legislature, or the state court that draws
legislative districts? The federal constitution assigns
this responsibility to the state legislature. It assigns
responsibility to the national legislature as a backstop
to prevent abuses. Through subsequent amendments,
it authorizes the federal courts to step in where there
are equal protection violations. What it does not do is
carve out a role for the state courts, particularly
where, as in this case, they are superseding the
determination of the legislature.
 29

IV. The Shift of Election Cases to Federal

Courts Does Not Render this
Interpretation Un-Originalist

Some have criticized an interpretation of the

Elections Clause that limits state court authority as
un-originalist based on the assertion that it “gives
near carte blanche to federal judges, when the key
point of Article II’s election language (and the
companion language of Article I) was to empower
states.” Vikram David Amar and Akhil Reed Amar,
Eradicating Bush-League Arguments Root and
Branch: The Article II Independent-State-Legislature
Notion and Related Rubbish, Supreme Court Review
(2022),
https://www.journals.uchicago.edu/doi/abs/10.1086/72
0128. This critique conflates the consequence of
comparatively recent developments in the Court’s
election jurisprudence with the original meaning of
the Elections Clause.

Prior to the mid-Twentieth Century,

substantive redistricting questions were generally
held to be nonjusticiable political questions. See
Colegrove v. Green, 328 U.S. 549 (1946). That began
to change by the early 1960s, as the Court began to
interpret post-ratification amendments, particularly
the Fourteenth Amendment, as creating a new
justiciable avenue for challenging redistricting
decisions. See, e.g., Gomillion v. Lightfoot, 364 U.S.
339 (1960) (holding that Petitioners stated a cause of
action under the Fourteenth and Fifteenth
Amendment to challenge local districting decisions);
Baker v. Carr, 369 U.S. 186 (1962) (holding that
 30

districting decisions were justiciable under the

Fourteenth Amendment).

To the extent that the effect of a proper reading

of the Elections Clause is to place greater authority in
the hands of federal judges relative to state courts, it
is a consequence of the development of the Court’s
approach to election cases since at least the mid-
twentieth century. A proper reading of the Elections
Clause as an empowerment of state legislatures (but
not state courts) is fully consistent with the idea that
the Elections Clause was originally intended to bolster
states.

CONCLUSION

The Constitution clearly assigns state

legislatures authority and responsibility to regulate
the time, place, and manner of elections. In doing so,
it does not contemplate a role for the state courts.
Accordingly, the decision of the state court should be
vacated.
 31

Respectfully submitted,

GARY M. LAWKOWSKI MICHAEL BOOS

Counsel of Record DANIEL H. JORJANI*
Dhillon Law Group, Inc. Citizens United
2121 Eisenhower Avenue, Citizens United Foundation
Suite 402 The Presidential Coalition
Alexandria, VA 22314 1006 Pennsylvania Avenue, S.E.
703-965-0330 Washington, D.C. 20003
GLawkowski@DhillonLaw.com 202-547-5420
MichaelBoos@CitizensUnited.org
DanielJorjani@CitizensUnited.org
*Application for Admission Pending

Counsel for amici curiae Citizens United, Citizens

United Foundation, and the Presidential Coalition

September 6, 2022